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Understanding Access Arrangements in International Fisheries Governance

This document, authored by Marcos A. Orellana, explores the legal analysis, research consensus, and conditions related to access arrangements in international fisheries. It delves into the nuances of financial contributions, benefits, S&DT treatment, sustainability, and transparency requirements. The Chair's text discusses structural pillars, conditions, and concludes on the strengths and shortcomings of the current framework.

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Understanding Access Arrangements in International Fisheries Governance

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  1. S&DT & EEZ Access Arrangements Marcos A. Orellana Director, Trade & Sustainable Development Program Center for International Environmental Law January 2008

  2. Contents • Research & Consensus • Legal Analysis: Findings • S&DT • Chair’s Text

  3. Research & Consensus • Government-to-Government Access Arrangement per se NOT a subsidy • Rules should introduce effective transparency requirements regarding Access Arrangements • Rules should not impede access payments on which many vulnerable economies depend

  4. Legal Analysis: Findings • Financial Contribution exists when a DWFN provides its fleet with access rights to fish in a foreign EEZ • Benefit is conferred where the DWFN fails to receive sufficient payment from its distant-water fishing fleet in exchange for the right to fish in a foreign EEZ • Case-by-Case analysis required to determine presence of a subsidy in a particular case

  5. Special & Differential Treatment • Exception to the Prohibition • Economic Dimension: safeguard payments to SIDS and other developing economies • Sustainable Development Dimension: EEZ goals of food security & sustainable development • Conditions attaching to the Exception • Environmental: Sustainability of stocks enhances food security and enables compliance with EEZ obligations • Transparency: Strengthens bargaining position of Coastal State • Transparency: Allows monitoring of biological status of the stocks

  6. Chair’s Text: Structural Pillars • Definition & Prohibition • S&DT: Exception & Conditions • Conditions: Transparency and Sustainability • Remedies: Burden of Proof

  7. Chair’s Text: Conditions • Conditions: Transparency & Sustainability • Transparency: Agreement made Public; Notification of Terms of Agreement; Reporting • Sustainability: Agreement reflect International Law on Fisheries & require and support Conservation Measures • Prior & Regular Science-based Stock Assessments • Management & Control Measures (e.g., VMS) • Vessel Registry • Reporting of effort, catches and discards to national authorities and to relevant international organizations • Other Measures as may be appropriate

  8. Chair’s Text: Conclusion • Strengths: Balanced & Nuanced • Conditions: Require AND Support conservation measures • Flexibilities: International Fisheries Instruments • Fishery Specific (in all likelihood) • Exception does not apply to High Seas Fisheries • Shortcomings • International Stocks not considered explicitly, but only indirectly by reference to international legal instruments • Who is responsible for monitoring & ensuring compliance with the terms of access arrangements? And what are the consequences in cases of non-compliance with the terms of access arrangements?

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