The Issue
Aquatic ecosystems, and the resources they
support, cross national marine and inland water
boundaries. As the harvesting of fisheries
resources needs to be managed over the whole of the
range of the target stock, there is a need for
cooperation among states in the management of these
resources.
The global system of governance takes no account
of ecosystem boundaries and so does not create
jurisdictions with the intention that they
correspond to the range of fisheries
resources, whether inland or marine. Instead it
takes account of an array of other factors,
particularly the political division of the world,
dominated as it is by the nation state.
Thus the rules for the delimitation of marine
boundaries are designed to create a fair political
distribution of coastal waters between opposite and
adjacent states and do not take account of
ecosystems. Similarly, river and lake borders
between states are not defined as a result of
consideration of the need for ecosystem management.
Marine and inland ecosystems are often divided by
these boundaries with the result that the ranges of
many fish stocks do not fall within the
jurisdiction of a single state. The seaward limit
of the exclusive economic zone (EEZ),
usually the arbitrary distance of 200 nautical
miles from the coastal baseline, also often divides
habitats.
This mismatch between jurisdiction and the
habitat of fish stocks creates difficulties in the
management of stocks. Without cooperation between
states, within whose jurisdiction the stocks fall,
states may individually adopt management measures
that collectively do not result in optimal and
sustainable utilization of those stocks. The UN
Convention on the Law of the Sea (UNCLOS)
requires that coastal states co-operate in the
management of such stocks (Art.63 (1)) but
establishes no rules for doing so.
Outside the 200 nautical miles exclusive
economic or fisheries zone, the absence of clear
jurisdiction over fishing threatens the effective
management of stocks whose range straddles the
outer limit of the zone, as well as those that
migrate widely on the high seas. The regime
governing straddling stocks (14.3% of total
marine catch in 1994) and highly migratory
species (5.4% in 1994) affect about 20% of the
global marine catch. Coupled with the stocks that
fall within the jurisdictions of two or more
states, both inland and marine, the effectiveness
of cooperative arrangements between states that
have an interest in such fisheries has a
significant impact on sustainable use of aquatic
resources.
Possible solutions
There are many instances where cooperative
arrangements have not been made at all for the
management of transboundary stocks, sometimes as a
result of one party having less interest than the
other party in establishing such arrangements. If
one party does not wish to co-operate in a
management arrangement of joint stocks, the only
redress is for an appeal to be made to the
international commitments made by that state, and
to the manifest advantages to be gained by
co-operation.
In instances where states cooperate but do not
reach proper agreement over the shares of a stock,
the consequence may be that, collectively, they
consistently harvest more than what is supported by
the best scientific advice available. Unresolved
issues between states, whether they relate to
shares of the catch or some other disagreement,
often stem from the absence or inadequacy of
mechanisms for resolving disputes.
In establishing management authorities for
shared fisheries resources, particular attention
needs to be given to the decision making process
and to binding dispute-settlement mechanisms, so
that when disputes do arise, there is an already
agreed method for resolving them.
Action taken
The importance of ecosystem-wide management of
fisheries resources is well established. The fact
that jurisdictions often divide aquatic ecosystems
creates a particular challenge for effective
fisheries management. There are a number of
examples of successful cooperative arrangements
between states that demonstrate that such
arrangements can work well.
The Code of Conduct for Responsible
Fisheries identifies, as a general principle,
that "States and users of living aquatic
resources should conserve aquatic ecosystems"
(Article 6.1). It is also emphasized in the Code
that "to be effective, fisheries management
should be concerned with the whole stock unit over
its entire area of distribution" (Article
7.3.1). The 1999 Rome Declaration on the
Implementation of the Code of Conduct for
Responsible Fisheries reaffirmed that the 126
participating states "accord the high priority
to achieving sustainability within the framework of
the ecosystem approach" (para. 12(c)).
The Agreement to Promote Compliance with
International Conservation and Management Measures
by Fishing Vessels on the High Seas, usually
referred to as the Compliance Agreement,
provides a dispute settlement procedure (Article
IX) which could be more specifically incorporated
into bilateral or multilateral agreements. In
addition, the 1982 Law of the Sea Convention (
Part XV) and the 1995 Fish Stocks Agreement
(Part VIII) both provide procedures for the
settlement of disputes.
Outlook
The growth in the number of regional fisheries
management organizations and the success of some of
them, particularly in instances where binding
dispute settlement mechanisms have been agreed,
points to the possibility of the successful joint
management of shared fish stocks becoming the
norm.
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