High seas treaty on allocating fish across jurisdictions

High seas treaty on allocating fish across jurisdictions

ON Dec. 24, 2017, the UN General Assembly voted to convene a multi-year process to develop a treaty on the conservation and sustainable use of marine biological diversity, now referred to as the Treaty on Biodiversity in Areas Beyond National Jurisdiction (BBNJ Treaty), also known as the Treaty on the High Seas. Currently still in negotiation at the UN, the draft addresses four key areas: 1) marine genetic resources; 2) area-based management tools including marine protected areas; 3) environmental impact assessments and capacity building; and 4) transfer of marine technology.

Why is an international treaty for the high seas crucial to biodiversity?

The high seas are largely unexplored, vastly deep areas teeming with marine life and are known to be a murky and a complex topic to tackle. Only 10 percent are currently protected and, due to a lack of clear rules and effective enforcement as well as persistent government gaps, the high seas are notoriously difficult to manage and often subject to legal questions.

It encompasses all areas beyond national waters, specifically outside the exclusive economic zone (EEZ) of any country and equates to almost one-half of the Earth’s surface. At the same time, they are under increasing threat from overfishing, mining, climate change and of late, plastic pollution. Among the stocks that are now seriously depleted are bluefin tuna, rockfish, herring, shrimp, sturgeon, oysters, cod, yellowtail flounder, etc.

Fortunately, as mentioned above, countries across the globe are one in creating an international legally binding treaty to manage shared marine biodiversity in the high seas. The fourth session of the intergovernmental conference took place in March 2022 after being postponed from 2020 due to the Covid-19 pandemic. In brief, that session tackled a new understanding of how to address environmental impact assessments and how best to deal with disputes of a technical nature in the on-going negotiations.

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After five fruitful years of collaboration, the Ocean Regional Governance Project (Strong High Seas Project) is coming to a close. Two more recent reports are timely contributions for the final negotiation scheduled in August 2022. The published reports consider how a new treaty could encourage effective compliance and provide some initial reactions on how area-based management tools may be deployed under a new agreement. Summary reports are also available on monitoring control and surveillance and as well as on international dialogue workshops that connected States and stakeholders across Africa and the Pacific.

As mounting pressures and impacts from human-induced climate change and biodiversity loss alter the oceans, their sustainability is a matter of urgent priority for all. For obvious reasons, the voice of the seafood supply chain companies tends to focus on seafood matters. Be that as it may, seafood is part of the wider ecosystem and as expressed by commercial fishers, they want to source from healthy and sustainable fisheries which are directly linked to a healthy marine ecosystem.

1982 UN Law of the Sea Convention

Of great relevance to the proposed treaty on the high seas is the matter of fish allocation across country jurisdictions. This is sometimes referred to as the “unfinished business” of deep-sea fisheries and the conservation of marine biodiversity beyond national jurisdiction.

To begin with, the 1982 UN Law of the Sea Convention regarding fisheries are general in nature but, nevertheless, provisions, clearly articulate an overarching duty to cooperate in all situations involving shared fisheries. Article 56 recognizes the coastal State sovereignty over the living resources in the 200 nautical mile exclusive economic zone (EEZ) but Articles 61, 62, 69 and 70 require coastal states to allow other states particularly developing, land-locked and geographically disadvantaged ones to harvest the surplus stocks in its EEZ. Specifically, Article 63 addresses stocks (or stocks of associated species) that “straddle” adjacent EEZs, or an EEZ of an adjacent high seas area, and requires the concerned states to agree [either directly or through an organization] on the measures necessary to ensure the conservation of such stocks. Article 64 requires coastal states and distant water-fishing states that harvest highly migratory stocks, such as tuna, to cooperate to ensure the conservation and optimum utilization of such stocks. Article 65 contains strong language requiring countries to “work through the appropriate international organization” to conserve, manage and study whales and dolphins. Article 66 gives the states of origin primary responsibility for anadromous stocks (eg, salmon and sturgeon), but requires the states of origin to cooperate with other states whose nationals have traditionally harvested such stocks, and states whose waters these fish migrate through. Article 120 states that the provisions of Article 65 on marine mammals also apply to the high seas. The Law of the Sea Convention also suggests creating regional fisheries organizations as appropriate.

It can easily be gleaned that the aforementioned provisions reinforce the duty to cooperate that has always existed in customary international law. Inasmuch as they are not specific enough to resolve conflicts that have arisen as species have been over-exploited, the 1995 Straddling and Migratory Fish Stocks Agreement was negotiated.

1995 treaty on fish stocks

In strengthening the Law of the Sea Convention, a 1995 “Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea (1982) relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks” was therefore adopted with the main objective of promoting, for the benefit of present and future generations, achievement of compliance in high seas fisheries.

The Straddling and Migratory Fish Stocks Agreement builds on existing provisions of the Law of the Sea, but it also introduces a number of new strategies and obligations about which international environmental law expert Jon M. Van Dyke volunteered the view that the 1995 stocks agreement is binding on all states as a matter of custom international law. His primary example of a provision that has become obligatory through state practice is the obligation to cooperate in respect of high seas fisheries through the medium of regional fisheries management organizations or other cooperative arrangements.

2000 Honolulu Convention

The Pacific Island and distant-water fishing countries with an interest in the Pacific met in Honolulu every six months for several years in the 1990s to draft a new treaty governing the migratory fish stocks of the Pacific Ocean now formally called the “Convention on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean.” Informally referred to as the 2000 Honolulu Convention, it created a regional organization known as the South Pacific Forum Fisheries Agency (FFA) as anticipated by the 1982 Law of the Sea and the 1995 Straddling and Migratory Fish Stocks Agreement.

The 2000 Honolulu Convention is huge in geographical scope, covering much of the Pacific Ocean, the governing territorial seas, the EEZs as well as high seas areas. It creates a commission with authority to set catch limits and allocate catch quotas to fishing countries both within and outside EEZs of coastal and island states. The commission can also regulate vessel types, both size and gear, and can establish area and time limitations.

The treaty requires fishing of migratory species in the high seas to be compatible with the regulations that apply within adjacent EEZs. It relies on the precautionary principle (which requires “alertness, precaution and effort” through a vigorous pursuit of a research agenda in order to overcome the uncertainties that exist) as its basic foundation and reinforces the duty to cooperate.

Compliance is through flag-state and port-state enforcement, boarding and inspection rights, use of modern satellite-based vessel monitoring systems technology and regional observers on the vessel. Obviously, any solution to the overfishing of high seas fisheries must involve true cooperation and transparency, which must include bringing the practice of illegal, unregulated and unreported fishing under control.

‘Equitable, efficient’ fish allocation

Allocating fish in an “equitable and efficient” manner is at the vortex of regional fishery management organizations’ actionable criteria that challenges the present generation. In that connection, several conferences and workshops recommended the following elements, among others, for the criteria that could be helpful in reaching an equitable and efficient manner of allocating the ocean resources, particularly, at this time of food scarcity: 1) Conservation measures must be paramount and the precautionary approach must be utilized to ensure fish stocks remain bountiful for future generations; 2) Countries must share data about their fishing operations and must utilize scientific research conclusions to understand the life cycle of each species and its relationship with other species in the ecosystem; 3) When the stocks straddle exclusive economic zones of states, those states have a strong claim to a substantial share of the allocation quota; and 4) Countries that allow their vessels to engage in destructive high-seas bottom trawling should be punished by having their allocations reduced.

The population of a country, its historical dependence on the fisheries in question, and its historical consumption of seafood, and the need for it for food security are also relevant considerations.

Since there is little information about many areas of the ocean and many species therein available, the process of allocation will be on trial and error in the beginning. Caution must, therefore, always guide the allocations.

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