Fisheries Management: The Current Legal and Normative Framework

1. Fisheries Management: The Current Legal and Normative Framework Martin Tsamenyi Professor of Law & Director The Australian National Centre for Ocean Resources & Security (ANCORS) University of Wollongong, Australia Prepared for the UNEP-WWF Symposium on Disciplining Fisheries Subsidies: Incorporating Sustainability at the WTO & Beyond 1st – 2nd March 2007 Geneva, Switzerland

2. Presentation Summary • Overview of the international legal and normative framework for fisheries management • Examination of two key instruments • Law of the Sea Convention • Code of Conduct for Responsible Fisheries • Summary of key principles underpinning the international legal framework for fisheries management

3. Legal & Normative Framework at a Glance

4. International Legal and Normative Framework Law of the Sea Convention UN Fish Stocks Agreement FAO Compliance Agreement FisheriesSpecific Instruments UNGAResolutions RFMOs FAOTechnicalGuidelines • IPOAs • Seabirds • Sharks • Capacity • IUU

5. The Constitution of the OCEANS • The most significant modification of the law of the sea in the past 500 years • Transfer of property rights from international commons to state property regime • Creation of the Exclusive Economic Zone concept • Rights and Responsibilities

6. Rights [Art. 62] • Promotion of the objective of optimum utilization • Conditioned by conservation obligations • Determination of capacity to harvest allowable catch • Allocation of surplus to foreigners • Subject to agreement • Enforcing fisheries laws and regulations against foreigners • Subject to some safeguards

7. Fisheries Responsibilities [Arts.61, 63-67; arts 116-119] • Conservation of the living resources • Ensure that fisheries resources are not endangered through over-exploitation • Standard to be applied is the maximum sustainable yield (MSY), qualified by relevant environmental and economic circumstances • Determination of the allowable catch • Protection of dependent and associated species • Collection and exchange of scientific data • Cooperation bilaterally and regionally to establish management measures for species that move between EEZ and high seas • Cooperation to manage high seas fisheries

8. In 1995, against a background of growing risks to global fisheries resource sustainability and food security, FAO Member States adopted the Code of Conduct for Responsible Fisheries Code of Conduct for Responsible Fisheries

9. Scope of the Code of Conduct Strategy for Improving Information on Status and Trends IPOA-Sharks IPOA-Capacity ResponsibleFisheries IPOA-Seabirds IPOA-IUU 12 Technical Guidelines and Supplements Compliance Agreement

10. Significance of the Code of Conduct • Said to be a “Voluntary Instrument” BUT…. • States general principles of conservation and management of fisheries resources found in binding instrument • Customary international law of fisheries • To be interpreted and applied in accordance with applicable rules of international law • Code of Conduct is NOT really “Voluntary”

11. Key Normative Principles of Responsible Fisheries • Long-term conservation and sustainable use • Science-based decision-making • Precautionary approach • Effective monitoring, control and surveillance • Consistency with international trade law • Special requirements of developing States

12. Ecosystem approach to fisheries - associated and dependent species LOSC, Art. 61, 119 target stocks LOSC, Art. 61 and 62; UNFSA, Art. 5(h) Limiting capacity and prevention of overfishing and transfer of excess capacity FAO Code of Conduct, Art. 7.1.8, Art. 7.6.3; UNFSA, Art. 5(h) Long-term Conservation and Sustainability Use Use of selective and environmentally safe fishing gears and practices FAO Code of Conduct, Art. 6.6 Protection of critical fisheries habitats in marine and freshwater ecosystems FAO Code of Conduct, Art. 6.8

13. Costs, benefits and effects of alternative management options related to excess capacity and fishing effort FAO Code of Conduct, Art. 7.3 Assessment of stocks ecosystems, including bycatch, discards, and waste LOSC, Art. 61 and 119; FAO code of Conduct, Science-based Decision making Collection & exchange of fisheries data LOSC, Art. 61(5), 119(2) Fisheries information and data collection UNFSA, Annex I Relevant social, economic, and institutional factors FAO Code of Conduct, Art. 7.4.5 Stock specific target and limit reference points FAO Code of Conduct, Art. 7.5.3 UNFSA Art. 6(3)(b)

14. Discards, non-target and associated or dependent species FAO Code of Conduct, Art. 7.5.2; UNFSA, Art. 3(d) Absence of adequate information should not be used as a reason for postponing or failing to take measure FAO Code of Conduct, Art. 7.5.1; UNFSA, Art. 6(2) Stock specific target and limit reference points FAO Code of Conduct, Art. 7.5.3; UNFSA, Art. 6(3)(b) Precautionary approach Size and productivity of stocks, reference points, fishing mortality, impact of fishing activities FAO Code of Conduct, Art. 7.5.2; UNFSA, Art. 6(3)(c), Annex II Cautious conservation and management measures for new or exploratory fisheries FAO Code of Conduct, Art. 7.5.4; UNFSA, Art. 6(6)

15. Effective control over nationals LOSC, Art. 94; UNFSA, Art. 18; FAO Code of Conduct, Art. 8.2 Vessel monitoring systems LOSC, Art. 62(4)(e), UNFSA, Art. 18(3)(g)(iii); FAO Code of Conduct, Art. 7.7.3 Effective monitoring, control, and surveillance Sanctions of sufficient severity UNFSA, Art. 19(2); FAO Code of Conduct, Art. 8.2.7 Observer programmes LOSC, 62(4)(g); UNFSA, Art. 18(3)(g)(ii); FAO Code of Conduct, Art. 8.4.3 Boarding and inspection LOSC, Art. 73(1); UNFSA, Art. 20-22

16. Other Import and export controls Trade/statistical documentation schemes IUU list of vessels InternationalTrade Law Consistency for compliance Measures Catch documentation schemes Port State measures

17. Training and scientific cooperation Financial and Technical assistance Technology transfer Special requirements of developing States Access agreements, joint ventures Vulnerability of developing States and dependence on marine living resources Not to carry disproportionate burden of conservation onto developing States

18. Evaluation • Adequate international norms for sustainable fisheries management exist….BUT • Lack of ratification/acceptance • Lack of domestic implementation • Lack of consistent interpretation of norms and principles • Ambiguity and exceptions • Lack of adequate mechanisms for compliance verification

19. One day, all seafood might look like me. Yum, Yum!