Titel: Challenges in RFMO compliance review mechanisms
The principal objective of regional fisheries management organisations (RFMOs) is to promote cooperation among States to ensure effective conservation and management of fisheries resources. Despite the establishment of over twenty RFMOs to manage some of the world’s fisheries, and the success of some RFMOs to improve the status of certain fish stocks, according to FAO data the percentage of stocks fished at biologically unsustainable levels has been increasing since 1974. In 2017, more than a third of all global fish stocks were overfished. In this context, the need for effective RFMO management is of particular importance.
There are different reasons for the failure of some RFMOs to achieve their objectives, and one of them is poor compliance by RFMO members with their obligations. RFMOs have progressively strengthened their mechanisms to monitor and support their members’ implementation of international commitments, but the problem of non-compliance –at times with serious and continued violations– persists.
Why do RFMO members fail to fully comply with their obligations? Which are the challenges faced by RFMOs to improve their members’ compliance? What changes are necessary to address these challenges? This presentation, based on the outcomes of the three “Virtual Expert Workshop on Best Practices in Compliance in RFMOs” held in 2020 and 2021, will seek to answer these questions.
Titel: Compulsory Conciliation Proceedings in regard to Disputes on Conservation and Management of Fish Stocks
Conciliation – a story of deceived expectations. This is one of the most promising and the least resorted diplomatic means of dispute settlement. In UNCLOS, conciliation is provided for in Articles 284 (voluntary conciliation) and in Art 297 and 298 (compulsory conciliation, also defined as “conciliation in which participation in the process is mandatory but the results are nevertheless non-binding”1).
Outline of the presentation:
Introduction: Conciliation: nature and procedure
I. Conciliation, an adjuvant to adjudication
a. Subsidiary role in the UNCLOS system
b. Subsidiary role in other mechanisms of dispute-settlement
c. Concurrence with other modes of dispute settlement (RFMOs, WTO, Brexit)
II. Conciliation, a shield against abuse of rights
a. Jurisdiction ratione materiae narrowly defined
b. Standard of review over discretionary powers
Title: Limitations to compulsory jurisdiction over disputes with regard to fisheries in the EEZ: Article 297(3)(a) of UNCLOS
Article 297(3)(a) of UNCLOS provides that disputes concerning the interpretation or application of the Convention with regard to fisheries shall be settled in accordance with the compulsory dispute settlement mechanisms of the Convention “except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.” This article confirms that the compulsory dispute settlement mechanisms of the Convention apply to disputes concerning fisheries, but then creates an exception of contested scope with respect to the exclusive economic zone. The contest includes the extent to which the exception applies to measures to preserve the marine environment that cover but are not limited to a coastal State’s exercise of sovereign rights with respect to living resources in its EEZ, and whether the exception extends to a ban on fishing as opposed to the regulation of fishing.
Title: IUU Fishing and the Port State Measures Agreement: State of Affairs and Developments
The 2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (the PSMA) is the first binding international instrument for combatting IUU fishing. The global call for more States to become parties to the PSMA and to implement it are essential to the global efforts to fight the scourge of IUU fishing which undermine sustainable fisheries, causes harm to marine resources and ecosystems, threatens livelihoods and negatively impacts food security and nutrition.
The Food and Agriculture Organization of the United Nations (FAO) not only acts as the Secretariat to the PSMA which was adopted within the framework of FAO’s Constitution, but also promotes further accessions to the Agreement and assists States in the mobilization of resources and expertise to enhance their capacities to implement the Agreement. The support provided by FAO in collaboration with FAO Members, address gaps in policy, legal and institutional frameworks and strengthens States’ operational capacities to implement port State measures consistent with the Agreement. The objective of the talk is to present and discuss the need to continue the global efforts to combat IUU fishing, in particular through the effective implementation of the PSMA and other relevant international instruments designed to fight IUU fishing, and FAO’s approaches, initiatives and efforts to that end.
Titel: Ambit of Obligations in Article 63(1) of UNCLOS
This paper analyses the substantive and procedural scope of Article 63(1) of UNCLOS. It also examines challenges to Article’s 63(1)’s implementation in relation to disputes on the conservation and management of shared fishery resources in the Exclusive Economic Zone (“EEZ”).
Article 63(1) enshrines a general obligation on states sharing fishery resources, which migrate or are distributed between their respective EEZs, “to seek to agree” on a joint conservation and management arrangement. This obligation is one of conduct, not an obligation to agree on any arrangement. Nevertheless, it is not a mere aspiration. It encompasses specific due diligence obligations including, first, to notify, exchange information and consult with affected states, and, second, to negotiate meaningfully and in good faith with a view to arriving at a cooperative agreement.
Compliance with the procedural, due diligence, obligations of Article 63(1) is critical to keep pace with drivers of change, notably global warming and associated challenges for identifying shared stocks and allocating total allowable catches. Failure to comply with Article 63(1) may be scrutinised by a forum established under Part XV, section 2 of UNCLOS. However, proving a breach of a due diligence obligation under Article 63(1) will generally be difficult.
Titel: The Interface between the BBNJ Agreement and Regional Fisheries Management Organisations' Mandates in establishing and managing Area-Based Management Tools
The negotiations of the BBNJ Agreement have highlighted a diverse range of views regarding the interface between the Agreement itself and Regional Fisheries Management Organisations (RFMOs) under their respective Conventions. An important concept that has been repeatedly referred to in these negotiations and under UN General Assembly resolutions that established the BBNJ negotiating process is the notion that the results of this process should not undermine existing legal instruments and frameworks and relevant regional and sectoral bodies, among others. Despite ample support for this concept by negotiators, the interpretation of what it entails in practice is not clear or uniform. This paper discusses the non-undermining concept in relation to the BBNJ Agreement and RFMOs’ mandates regarding area-based management tools (ABMTs), with a special focus on other effective area-based conservation measures (OECMs). OECMs are a relatively new concept established under the UN Convention on Biological Diversity (CBD), which RFMOs have just started to engage with. In this light, the potential role of the BBNJ Agreement in facilitating cross-sectoral cooperation to ensure that OECMs identified by RFMOs can deliver biodiversity conservation outcomes will also be the object of further consideration and analysis.
Titel: Indonesian Enforcement Measures against IUU Fishing Vessels
As the world’s largest archipelagic state, Indonesia is a major beneficiary of the United Nations Convention on the Law of the Sea (UNCLOS). The introduction of the EEZ and archipelagic state regimes within the Convention have contributed to a significant expansion of Indonesian control over the marine living resources. As the second largest fish producer in the world, Indonesia is not immune from illegal, unreported and unregulated (IUU) fishing threats. This paper will examine Indonesia’s law and policy in combatting IUU fishing in the waters subject to its jurisdiction and control as well as by its nationals
Titel: Overlapping geographical mandates of RFMOs
The phenomenon of overlapping geographical mandates of regional fisheries management organizations (RFMOs) must be viewed in light of the evolution of international law, which proceeded in a gradual and incremental manner with little attention to hierarchy. Overlaps in geographical mandates can lead to working at cross-purposes and even actual conflicts. For instance in case of fishing in the area of overlap for the same target species or for different target species but using fishing techniques that impact on non-target species or benthic habitats for which at least one of the RFMOs has adopted conservation and management measures.
The presentation will examine the present occurrence of overlapping geographical mandates of RFMOs, the underlying reasons for this, and arrangements that have been developed to avoid actual conflicts and working at cross-purposes, and ensure complementarity. These arrangements can be regarded as regime interactions aimed at addressing problems caused by the fragmentation of international (fisheries) law and polycentricity. Arrangements can be treaty-based or not, and be focused on determining primacy or rather on cooperation and coordination. Special attention will be devoted to the evolving geographical and species overlap between the North-East Atlantic Fisheries Commission (NEAFC) and the Joint Norwegian Russian Fisheries Commission (JNRFC).
Titel: IUU Fishing Vessel Listing Cooperation among RFMOs
Regional Fisheries Management Organisations (RFMOs) play an increasingly important role in international fisheries governance. They have multiplied in number over the years, their normative output has increased, and several Memoranda of Understanding (MoUs) now regulate RFMO cooperation in areas of mutual interest: in particular, the exchange of information over so called ‘illegal, unreported and unregulated’ (IUU) fishing activities, including the exchange of IUU vessel listings and related data.
This paper maps out current RFMO practices in this regard and examines them against the backdrop of the duty to cooperate. Though the duty to cooperate is fundamental to international environmental law and has been given specific meaning in the context of cooperation through RFMOs, little attention has thus far been paid to possible cooperation obligations of RFMOs themselves.
This paper addresses the latter by exploring the international legal personality of RFMOs and, consequently, the general international law obligations that bind them. It asks whether – and in what form – general international law 1) confers on RFMOs a duty to cooperate with other RFMOs over IUU fishing, and 2) applies to the cooperative relations between RFMOs, and what the procedural implications of this are for exchanging IUU vessel listings and related data.
Title: Due diligence or dogged dilettante? States’ compliance measures in distant water fisheries
In the SRFC advisory opinion (case no. 21 of 2 April 2015), the International Tribunal of the Law of the Sea makes clear that, in the circumstances, flag States have an obligation to exercise due diligence to take all necessary measures to ensure that vessels flying their flag are not involved in IUU fishing (para. 129). While the Tribunal leaves it open to States to determine the nature of these measures, States must at the very least include in them enforcement mechanisms to monitor and secure regulatory compliance and sanctions for violations (para. 138). States may embark on various strategies to promote compliance with its laws and regulations (e.g., Gunningham, 2010; Baldwin et al, 2012; Welch, 2011) and they seem to apply these strategies to the fishing sector with varying degree of success. While there is knowledge about the effective use of compliance measures in domestic fisheries (e.g., Kuperan and Sutinen, 1998; Gezelius 2004), less is known about the unique legal and practical challenges associated with ensuring regulatory compliance of the distant water fishing fleets (Hønneland, 2012), and which States may need to take into consideration in their efforts to meet the due diligence obligation.
Regulatory Space for Measures affecting Trade in Marine Resources
International trade rules, such as those of the World Trade Organization (WTO), establish disciplines on measures that affect trade, including trade in products derived from marine resources. Yet the Members of the WTO, and States party to other trade agreements, retain regulatory space to pursue their non-trade policy objectives. This is demonstrated in the more than 25 year history of WTO adjudication. Indeed, WTO adjudicators have frequently applied the customary rules of interpretation in a manner that provides wide scope for regulatory discretion where measures pursue policies that are distinct from the economic policy objectives of the trade rules.
This paper explores the balance struck under trade rules, focussing on the decisions of WTO adjudicators to illustrate the analysis. It considers the basic legal framework of primary rules and exceptions (primarily under the GATT 1994), as well as additional rules that establish legal rights to engage in otherwise exceptional conduct (for instance, under the TBT and SPS Agreements). We take a practical approach, highlighting the types of policy objectives for which WTO adjudicators have tended to apply trade rules quite strictly (economic objectives) and those for which they have sometimes taken a remarkably flexible approach (non-trade environmental and ethical considerations).
Titel: Emerging Dispute Settlement Principles in RFMOs
This paper traces the trends in dispute settlement within Regional Fisheries Management Organisations (RFMOs) in order to identify common principles that guide and shape the dispute settlement process. Starting with the principle of dispute prevention, the paper identifies that RFMOs have implemented various innovations in their decision-making processes in order to avoid the crystallisation of a dispute in the first place. Where a dispute does arise, fisheries treaties often embed the principle of freedom of choice in dispute settlement. Indeed, a major trend has been increasing the availability of facilitative dispute settlement mechanisms, particularly through technical panels. Nevertheless, most RFMO treaties provide for compulsory mechanisms if a dispute cannot be resolved through other means. Those RFMOs which do not provide for compulsory settlement are regularly criticised for failing to meet international standards. Where litigation might take place, the multilateral and technical nature of high seas fisheries disputes presents a number of challenges. The paper discusses the concept of obligations erga omnes partes, identifying a number of mechanisms through which multiple parties can participate in dispute settlement processes. It also considers the options for courts and tribunals to receive technical evidence and what implications these mechanisms may have for dispute settlement.
Titel: Scientific Data as Allocation Key
There is no unified and universal agreed method on how to organize a fair allocation of highly migratory and straddling fish stocks among coastal states and high seas fishing states. A solution to the problem depend upon defining a set of key allocation criteria and the relative weights to be applied to each criterion, along with a management rule when to re-negotiate a sharing arrangement due to changes in fish distribution. The aim is to introduce how scientific data can be used in allocation of fish stocks and to present a model framework for a scientifically informed decision scheme on how to share transboundary fish stocks in a transparent and equitable manner. The method is to develop a set of key allocation criteria with specific emphasis on how to use scientific data as proxies for zonal attachment. The use of other allocation criteria, such as historic fisheries, the location of spawning and nursery areas, economic dependency of the states, etc. will be assessed. The last bit is to apply relative weights to each criterion in a final sharing model. With examples from the three large pelagic fish stocks in the Northeast Atlantic, the Norwegian spring-spawning herring, mackerel and blue whiting, it is attempted to illustrate how such a model might work.
Title: The Implementation of the MMPA Program targeting the Protection of Marine Mammals
For more than 40 years, the U.S. Marine Mammal Protection Act (MMPA) has been at the heart of international trade discussions on access to the U.S. market for fisheries products. The MMPA established a national policy to prevent marine mammal species and population stocks from declining beyond repair.
The Act’s salience has grown in recent years as U.S. lawmakers continue to revise, refine, and reform its operation. This paper examines developments of the last half-decade as the U.S. government has sought to structure its conditions of entry in a way that is responsive to both environmental and animal advocates, as well as to business and foreign trading partners. An essential component in this process has been the MMPA Import Provisions Rule and comparability findings exercise that has evolved as U.S. agencies develop their conditions, which some critics have argued are in tension with international trade rules.
The debate surrounding the MMPA is one of the best examples of the regulatory struggle faced by governments as they seek to achieve two different important public policy aims and to meet their respective international commitments, when those aims and commitments appear to be at cross-purposes.
Titel: The Impact of the BBNJ Agreement on the Operation of Regional Fisheries Management Organizations
This paper will address how the international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity beyond national jurisdiction (BBNJ agreement) will affect the management of fisheries resources through Regional Fisheries Management Organizations (RFMOs), focusing in particular on the changes that may be brought to the operation of existing RFMOs when the BBNJ agreement is adopted and is entered into force.
The impact of the BBNJ agreement on RFMOs has mainly been discussed in terms of the structural relationship between the agreement and existing international legal instruments, frameworks, and bodies (IFBs). However, it is also useful to consider the issue from the perspective of member States of RFMOs and how their cooperation through RFMOs could be affected. In this regard, an important mechanism in the BBNJ agreement that creates a link between it and IFBs is the duty to cooperate. The extent of this duty, its potential to induce States to achieve coherent governance of areas beyond national jurisdiction, and the risk of creating a divide between States in RFMOs if the BBNJ agreement is not widely ratified will be considered.
Titel: Closing the Gap: Addressing Transshipment as Part of an Integrated Scheme of Monitoring Measures
Transshipment – the direct transfer of fish from one vessel to another, either at sea or in port – is a critical part of fishing operations around the world. However, because transshipment can occur in remote areas, enables harvesting vessels to remain at sea for long periods of time, and adds complexity to the supply chain, the practice also plays a key role in supporting IUU fishing, fishing related activities in support of IUU fishing, and other related issues of concern by undermining the effective implementation of monitoring, control and surveillance measures designed to combat IUU fishing. States have developed measures, including through Regional Fishery Management Organizations (RFMOs), to control and monitor transshipment and these have been strengthened over time and integrated into broader schemes of monitoring . Currently, the UN Food and Agriculture is engaged in the negotiation of voluntary guidelines for the control
The objection procedure in SPRFMO: lessons, challenges and opportunities
The use of adversarial dispute settlement mechanisms in international fisheries management is still infrequent. Despite the advanced LOSC and UNFSA provisions –for decades in force– recourse to permanent courts and arbitral tribunals to solve conflicts concerning transboundary fisheries seems the exception rather than the rule. This context contrasts with the contentious dynamics of RFMOs, where multidimensional and often structural disagreements on a wide array of issues amongst RFMO member states are pervasive. RFMOs have opted to deal with internal differences by accepting that consensus inevitably means the common lowest denominator. As a result, tensions and arguments can linger on for years, affecting inter-states dynamics and undermining sustainability goals.
Against this background, the dispute settlement provisions of SPRFMO are unique in the world of RFMOs. The 2009 SPRFMO Convention set up a procedure whereby any member can object to an SPRFMO Commission decision under specific requirements and conditions, to be heard by a Review Panel following a detailed and structured process. In the ten years of SPRFMO’s life, this mechanism has been triggered twice -first in 2013 by Russia, then in 2018 by Ecuador- to deal with allocation decisions, the most controversial topic in RFMOs’ practice.
This presentation will discuss the outcomes of these disputes from three perspectives. First, it will assess whether the Panels’ recommendations solved the short- and long-term issues associated with the allocation conflicts. Second, it will consider whether the SPRFMO mechanism could address other sources of conflict, including one that today emerges as a serious impediment to the credibility of RFMOs: compliance with existing management measures. And third, it will discuss whether other RFMOs could replicate or benefit from some features of the SPRFMO experience.
Titel: Relations between UNCLOS and Dispute Settlement Mechanisms in RFMOs
Taking as a starting point remarks in a recent paper by Nigel Bankes, further consideration is given to which further regional fisheries treaties could or should be included in the ITLOS website list of International Agreements Conferring Jurisdiction on the Tribunal, i.e. which further RFMO/As can be taken as establishing a route to compulsory jurisdiction through Part XV UNCLOS. Consideration is also given to how the substantive provisions of UNCLOS may (or may not) be part of the applicable law in disputes in RFMO/As.
Titel: Reinforcing the Compatibility Requirement for EEZ and High Seas Measures on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Species
Given that straddling stocks and highly migratory species of fish move with ease between exclusive economic zones and the high seas, the 1982 U.N. Convention on the Law of the Sea contains provisions that seek to bridge the gap for conservation and management of such stocks. Those provisions were elaborated in the 1995 Fish Stocks Agreement, notably in its Article 7(2), which provides in part that “[c]onservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety.” The purpose of this paper is to consider the legal framework within which this “compatibility requirement” rests and to identify several ambiguities that may be impeding international cooperation. So as to promote greater cooperation, this paper considers whether an advisory opinion should be sought by an RFMO from the International Tribunal for the Law of the Sea on the nature and scope of the compatibility requirement.
Titel: The Effects of the BBNJ Agreement on the International Legal Framework for Fisheries
Negotiations on the BBNJ Agreement are still ongoing and it is therefore unclear what the final product will look like. To consider its potential effects on the international legal framework for fisheries, the presentation will examine different scenarios that are still possible outcomes and which will have different effects. The emphasis will be on the issue of area based management tools and the decision making process for adopting measures.
In order to give the analysis some context, the presentation will briefly discuss the types of human activities that actually take place in areas beyond national jurisdiction and examine the types of relevant international organisations and processes that already exist.
In addition to analysing possible scenarios and their likely effects, the presentation will examine possible compromise solutions that might result in an effective and practical agreement, without any of the sides that are currently engaged in negotiations ending up as absolute winners or losers.
Title: The rules and practice of participation
The rules and practice of participation in RFMOs are a key element in the overall functioning of RFMOs, with impacts on important issues such as their effectivness and legitimacy. The general legal framework governing participation in RFMOs is primarily laid down in the UNFSA, pursuant to which “relevant coastal States” and flag States having “a real interest in the fisheries concerned” are eligible for RFMO membership. However, the specific rules on participation contained in the constitutive instruments of RFMOs are often decisive in practice. These rules and their application in practice remain far from uniform and have been shaped by both the political and legal realities in which the relevant RFMO operates. In a considerable number of RFMOs, sovereignty disputes and unresolved decolonization issues form part of these realities. This paper focuses on the challenges that such issues pose to the legal framework governing participation in RFMOs. It also examines how such challenges can be addressed in practice to allow the relevant RFMO to effectively exercise its fisheries conservation and management mandate. The dispute between Mauritius and the United Kingdom concerning the Chagos Archipelago, a recurring and increasingly challenging issue at the Indian Ocean Tuna Commission, serves as a case-study.
Titel: The Role of Public International Law in WTO Trade Disputes concerning Living Marine Resources
The WTO Appellate Body determined in its first ruling that WTO law is not to be read in clinical isolation from public international law. Nevertheless, other than in the application of the customary rules of interpretation of public international law as codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, WTO adjudicators have not readily turned to public international law to inform their decisions. When they have, resort to public international law has been limited and cautious. Interestingly, on those rare occasions when public international law does find its way into WTO case law, the disputes often concern living marine resources. This paper will take a close look at the WTO disputes where public international law has played a role, describe what that role has been, and consider why the role of public international law generally has been limited and cautious. It will also look briefly to WTO cases where public international law rules were determined to be inapt in the decision-making process. Finally, it will address whether one should expect the role of public international law in WTO dispute settlement to change going forward.
Titel: Jurisdiction of UNCLOS Part XV Courts or Tribunals and the Settlement of Disputes Concerning Straddling Fish Stocks
A debatable issue that may arise in the dispute settlement system under the UN Convention on the Law of the Sea (UNCLOS) is whether or not international disputes concerning fish stocks straddling the exclusive economic zone (EEZ) and the high seas are subject to the compulsory procedures set out in the Convention. Given that fish stocks straddling between the EEZ and the high seas can create more intractable fisheries disputes, the jurisdictional issue is of particular importance. Nonetheless, the ambiguity as to the applicability of the compulsory dispute settlement procedures to straddling fish stocks disputes has not been resolved by the UNCLOS or the Fish Stocks Agreement. There, an essential issue arises how one can address the jurisdictional issue where no definitive conclusion can be drawn from the text of the Convention or supplementary means of interpretation, including travaux préparatoire. Noting this issue, this presentation examines jurisdiction of adjudicative bodies acting under Part XV of the UNCLOS with regard to disputes concerning straddling fish stocks from the triple viewpoints: the consent of States, the effective settlement of international disputes, and safeguard of common interests of the international community (i.e. community interests).
Title: IUU Fishing in East Asia: A Korean Perspective
The presentation focuses on the IUU fishing of Chinese vessels in Korean waters. It has had severely detrimental effects on Korean waters' fishery resources, marine environment, and even national security regarding North Korea. The South Korean government has struggled with the IUU fishing of Chinese vessels. The government has introduced heavy penalties on IUU fishing of foreign vessels through repeated amendments of the relevant law, has built capacity on controlling the fishery, and has tried to draw cooperation from the Chinese government. As a result, the number of arrests for unauthorized Chinese vessels in Korean waters has gradually decreased over the last ten years. However, the decrease of arrested vessels may not automatically indicate that the actual number of IUU fishing itself has reduced to the same rate as the decreased number of arrested vessels. The presentation tries to analyze the implication and reasons for the trend. The foremost reason would be adopting the fisheries agreement between South Korea and China in 2000 and the faithful implementation of the agreement by both governments. It also explores a few legal questions on Chinese fishing vessels in Korean waters.