The Issue
The doctrine of the freedom of the high seas,
essentially that which applied to most fisheries
prior to the extension of jurisdiction, still
applies on the high seas although it has become
subject to certain conditions. Essentially, fishers
on the high seas are at liberty to fish as they
please, subject only treaty obligations, to a
general obligation on states to take measures to
ensure their nationals conserve living marine
resources, a general obligation for states to
co-operate where appropriate with other states
(UNCLOS Articles 116-120), and specific
requirements that states co-operate in the
management of fisheries for straddling
stocks, highly migratory stocks, and
anadromous and catadromous stocks (UNCLOS Articles
63-67). The 1982 United Nations Law of the
Sea Convention contains no specific rules for
achieving these objectives and no sanctions for
failure to agree and implement conservation
measures.
In 1995 the "Agreement For the Implementation of
the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 relating to
the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks" (1995
UN Fish Stocks Agreement) was adopted. In
November 2000 the agreement had not yet entered
into force. At that point 59 states had signed or
acceded to the Agreement and 28 states had ratified
it. The Agreement will enter into force 30 days
after the 30th ratification is deposited.
Although the Agreement has the potential of
considerably strengthening provisions relating to
certain high seas fisheries, there remain
weaknesses in the governance of high seas fishing.
When the agreement is implemented fully, there will
still be nothing to prevent vessels from States
that are not party to the agreement, and which
choose not to comply with the rules established by
a regional fisheries management organization, from
freely fishing stocks which a regional fisheries
management organization is attempting to manage.
The failure of States to accede to and ratify the
Agreement will limits its effectiveness.
There are also high seas fish stocks that are
neither highly migratory nor straddling and which
remain under conditions of open access, as they are
not formally covered by the 1995 UN Fish Stocks
Agreement. Although this problem pertains to a very
small percentage of the total global marine catch,
it should not be considered minor from a
biodiversity perspective. Unless the problem is
addressed the fate of these stocks is no different
to that of any others that lack adequate
management.
Possible solutions
The 1995 UN Fish Stocks Agreement, inter
alia, sets out comprehensive areas in which a
regional fisheries management organization will
have competence covering scientific research, stock
assessment, monitoring, surveillance, control and
enforcement (Art. 10) and the setting of catch
limits. A State party to the Agreement may only
authorize a vessel flying its flag to fish on the
high seas where it is able to exercise effectively
its responsibilities of enforcement (Art. 18(2)). A
flag State is obligated to permit access by duly
authorized inspectors from other States (Art.
18(3)(g)(i) and Art. 22) and the use of onboard
observers from other States ((Art. 18(3)(g)(ii)).
The flag State must take action against a vessel
reported to have committed a serious violation
(Article 21 (11)) and failure to do so gives the
inspecting State the right to take action (Article
22). Inspectors from a member State of a regional
organization established under the Agreement have
the right to board and inspect a vessel of another
state party to the Agreement (Article 21).
The 1995 UN Fish Stocks Agreement thus has the
potential of enabling effective management of
stocks on the high seas, provided all fishing
nations ratify or accede to it.
Action taken
The Agreement to Promote Compliance with
International Conservation and Management Measures
by Fishing Vessels on the High Seas (FAO Conference
Resolution 15/93) and the Code of Conduct for
Responsible Fishing are consistent with the 1982
Convention and the 1995 UN Fish Stocks Agreement.
Strenuous efforts have been made by the FAO to gain
widespread support and implementation by States of
the Compliance Agreement and the Code of Conduct
which, inter alia, address flag State
responsibilities and seeks to advance fishery
management measures, by agreement among States,
that improve the optimal and sustainable use of
fisheries resources.
Outlook
Providing States recognize the long-term
advantages of co-operation in the management of
fisheries resources and commit themselves to the
implementation of the measures that are provided
for in the 1995 UN Fish Stocks Agreement, the 1993
Compliance Agreement and the Code of Conduct for
Responsible Fisheries, it should be possible to
achieve vastly improved management of high seas
fisheries on the basis of agreements already
made.
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