The international legal regime for fisheries management
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The International Legal Regime for Fisheries Management. Martin Tsamenyi, PhD Professor of Law & Director Centre for Maritime Policy University of Wollongong NSW, Australia UNEP WORKSHOP ON FISHERIES SUBSIDIES AND SUSTAINABLE FISHERIES MANAGEMENT

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The International Legal Regime for Fisheries Management

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The international legal regime for fisheries management

The International Legal Regime for Fisheries Management

Martin Tsamenyi, PhD

Professor of Law & Director

Centre for Maritime Policy

University of Wollongong

NSW, Australia

UNEP WORKSHOP ON FISHERIES SUBSIDIES AND

SUSTAINABLE FISHERIES MANAGEMENT

International Environment House II

Geneva, 26-27 April 2004


The international legal regime for fisheries management

IN THE BEGINNING


Papal bull of demarcation 1492 the treaty of tordesillas 1493

Papal Bull of Demarcation 1492 & The Treaty of Tordesillas 1493


Freedom of the seas

Freedom of the Seas

The resources of the oceans “belong to all men by natural law.”

Hugo Grotius:1609


Freedom of the seas1

Freedom of the Seas

“The sea is common to all, because it is so limitless that it cannot become the possession of any one, and because it is adapted for use of all, whether we consider it from the point of navigation or fisheries.”


Over fishing unscientific

‘Over-fishing unscientific’

  • “Any tendency to over-fish will meet with its natural check in the diminution of the supply,… this check will always come into operation long before anything like permanent exhaustion has occurred” (Huxley, 1883).


Over fishing impossible

Over-fishing Impossible

“I say it is impossible, not merely to exhaust them [fisheries] but even noticeably to lessen their number by means now used for their capture, . For the last three hundred years fishing has gone on … and although enormous quantities of fish have been caught, there are no indications of exhaustion.” (L.Z Joncas, Canadian Ministry of Agriculture, 1885).


The high seas convention 1958

The High Seas Convention-1958

  • The freedom of the High Seas comprises inter alia:

    • Freedom of fishing

  • “Tragedy of the [international] commons”


Modern international legal policy framework

Modern International Legal & Policy Framework

  • Three Categories

    • Fisheries Specific Instruments

    • “Soft Law” Instruments

      • Policy framework

    • General international marine environmental treaties


Fisheries specific instruments

Fisheries Specific Instruments

  • UN Law of the Sea Convention

  • UN Fish Stocks Agreement

  • FAO Compliance Agreement

  • Regional and Bilateral Fisheries Agreements/Conventions


Un convention on the law of the sea 1982

UN Convention on the Law of the Sea 1982

  • The exclusive economic zone (EEZ)

    • The most extensive transformation of the law of the sea in past 500 years

    • Transfer of property rights from international community to coastal States


Eez an inheritance

EEZ – an inheritance

“Under the new regime of the seas, the world community has WILLED to the coastal States the bulk of living resources in waters off their shores.”


Coastal state rights in the eez

Coastal State Rights in the EEZ

  • Promotion of optimum utilization of resources

  • Preferential access to the resources

  • Power to enforce fisheries laws and regulations


Responsibilities in the eez

Responsibilities in the EEZ

  • Effective conservation and management framework

  • Maintaining or restoring populations of dependent and associated species

  • Data collection and exchange

  • International and regional cooperation to manage and conserve


Impact of the eez regime

Impact of the EEZ Regime

  • Rights without Responsibilities

    • “Gold mine mentality”

      • No conservation measures

      • No TAC determination

      • Indiscriminate allocation/licensing of foreign vessels


Impact of eez regime

Impact of EEZ Regime

  • Management Problems

    • Lack of compatibility of measures

      • EEZ/EEZ

      • EEZs/high seas

      • Regional and international management frameworks

    • Lack of capacity to manage

    • DWFNs counter-responses


Un fish stock compliance agreement common themes

Control activities of nationals through proper authorization

Flag State Responsibility

International, regional and sub-regional cooperation

Conservation

Data collection and exchange

enforcement/surveillance

Vessel monitoring systems

Control of non-parties

Port State enforcement

Multilateral trade sanctions

Implementation of international obligations

Limited recognition of ecosystem approaches management

Marine biodiversity generally

High seas biodiversity

UN Fish Stock/Compliance Agreement Common Themes


Impact of un fish stocks compliance agreement

Impact of UN Fish Stocks/Compliance Agreement

  • Right Direction

  • BUT

    • Lack of widespread ratification

    • Lack of implementation


Soft law instruments

Action Plans

Strategies

Declarations

Codes of Conduct

FAO Code of Conduct for Responsible Fisheries 1995

Guidelines

Plans of Action (1999-2001)

Management of sharks

Reducing Incidental catch of Seabirds in Longline Fisheries

Management of Fishing Capacity

Prevent, Deter and Eliminate IUU Fishing

Resolutions of the UNGA, or of international fisheries bodies

Soft Law” Instruments


Impact of soft law instruments

Impact of “soft law” instruments

  • POSITIVE

    • Policy framework to implement binding instruments

    • the development of concepts and principles e.g the precautionary approach

    • testing grounds for new ideas, or adaptations of old ideas to new areas


Impact of soft law instruments1

Impact of “soft law” instruments

  • NEGATIVE

    • easy to include text in such documents in the knowledge that they will not have to be implemented.

    • shifting from the language of ‘should’ to ‘shall’ to avoid legal obligation to implement


International marine environmental treaties

International Marine Environmental Treaties

  • Biodiversity Convention

  • CITES

  • World Heritage Convention

  • Ramsar Convention

  • Bonn Convention

  • MARPOL


Impact of environmental instruments

Impact of Environmental Instruments

  • Marginalized

  • No effective framework for coordination between “fisheries” and “environmental” sectors at

    • National level

    • International level


The way forward

The Way Forward

  • Moratorium on new international instruments

    • More than adequate international legal and policy framework to address the problem

  • Need for fresh thinking on implementation strategies

    • Holistic approach

    • Synergy and linkages between and among

      • Instruments

      • Sectors

    • Capacity building

      • especially for developing countries


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