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«Sampan Panjarat The United Nations-Nippon Foundation Fellowship Programme 2007 - 2008 DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA OFFICE OF ...»

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- 50 - goals for improving environmental and developmental impact.138Agenda 21 stated that humans confront with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which humans depend for their well-being. The integration of environment and development concerns as well as an increase in the attention paid to then, should lead to the fulfillment of basic needs, improved living standards, protected and managed ecosystems and peace which is a precondition for the global partnership for sustainable development.139 And the governance of the ocean’s living resources in the high seas and in the areas under national jurisdiction is one of the main provisions in Agenda 21.140 Agenda 21 is comprised of 40 Chapters. Chapter 17 addresses the problems of ocean and coastal areas,141 contains provisions for the sustainable utilization and conservation of oceans and their living resources. The implementation of these provisions by States will also require international cooperation and coordination, including through the United Nations System, and international development bodies. Furthermore such work should benefit from and regular consideration by the United Nations General Assembly and other UN bodies competent in marine and coastal issues142 so as to assist in the development and sharing of analytical and predictive tools, such as stock assessments and bioeconomic models,143 effective management and enforcement144 and the protection of ecological systems that support fish stocks.145 Chapter 17 identifies the problems of the high seas fisheries, including overutilization, unregulated fishing, overcapitalization, excessive fleet size, vessel reflagging to escape controls, insufficient selective gear, unreliable databases and lack of sufficient cooperation between States. Chapter 17 called upon States to take effective action and to cooperate in enforcement of effective conservation measures, particularly for highly migratory species and transboundary L. Juda. Rio Plus Ten. 2002. op. cit. 109-144 pp.

Agenda 21, Preamble.

United Nations, Report of the United Nations Conference on Environment and Development, Chapter 17, Rio de Janeiro, 3-14 June 1992. A/CONF.121/26 (Vol. II). 1-1 pp.

Agenda 21, Basis for Action.

Agenda 21, 17.50.

Agenda 21, 17.56 (c) and 17.86 (c) Agenda 21, 17.49 Agenda 21, 17.72 and 17.85

–  –  –

ensure compliance with applicable conservation and management rules;148

• Deter reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules;149 Prohibit dynamiting, poisoning and other comparable destructive fishing practices;150 •

• Fully implement General Assembly resolution 46/215 on large-scale pelagic drift-net fishing;151 and Reducing wastage, post-harvest losses and discards.152 • Chapter 17 also calls on States to cooperate within the regional and global fisheries bodies153 and to join regional high seas fisheries organizations if they have an interest in a high seas fisheries regulated by that organization.154 Also address in Chapter 17 are the problems of fisheries in areas under national jurisdiction including local overfishing, unauthorized incursions by foreign fleets, ecosystem degradation, overcapitalization and excessive fleet sizes, underevaluation of catch, insufficiently selective gear, unreliable databases, and increasing competition between artisanal and largescale fishing, and between fishing and other types of activities.155 Chapter 17 indicates States


Agenda 21, 17.45 Agenda 21, 17.50 Agenda 21, 17.52 Agenda 21, 17.53 Agenda 21, 17.54 Agenda 21, 17.55 Agenda 21, 17.56 Agenda 21, 17.57-17.59 Agenda 21, 17.60 Agenda 21, 17.71

- 52 Develop and increase the potential of marine living resources to meet human nutritional needs, as well as social, economic and development goals;

• Take into account traditional knowledge and interests of local communities, small-scale artisanal fisheries and indigenous people in development and management programmes;

• Maintain or restore populations of marine species at levels that can produce the maximum sustainable yield as qualified by relevant environmental and economic factors, taking into consideration relationships among species;

• Promote the development and use of selective fishing gear and practices that minimize waste in the catch of target species and minimize by-catch of non-target species;

• Protect and restore endangered marine species; and

• Preserve rare or fragile ecosystems, as well as habitats and other ecologically sensitive areas.156 Agenda 21 makes recommendations for the future conduct and management of world fisheries. It is supplemented by global fisheries agreements such as the FAO Compliance Agreement and the United Nations Fish Stock Agreement, in the work of international fisheries bodies such as the FAO Committee on Fisheries (COFI), and in the efforts of a number of regional fisheries commissions.157

3. The 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Compliance Agreement) was adopted by the FAO in 1993 and entered in force as from 24 April 2003.158 Currently, there are 35 parties to this agreement.159 Agenda 21, 17.74 L. Juda. Rio Plus Ten. 2002. op. cit. 109-144 pp.

FAO, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas - Status (November 2006 [cited 27 November 2006]); available from http://www.fao.org/Legal/treaties/012s-e.htm.


- 53 The agreement is composed of 16 articles and imposes upon all States party whose fishing vessels operate on the high seas, a responsibility in respect of fishing vessels entitled to fly their flags. States are to ensure that flag State vessels are authorized to fish on the high seas and thus they operate in accordance with international conservation and management measures160 as well and exchange information on high seas fishing and their activities.161 It reaffirms the provisions of Agenda 21 that flag States must exercise effective control over their vessels fishing on the high seas.162 It elaborates this obligation by requiring that all such vessels be licensed to conduct such fishing, that the licenses be conditioned on the vessel abiding by internationally agreed conservation and management measures,163 and establishes the FAO as an archive and clearing house for information on such fishing vessels,164 particularly those that have broken applicable rules and have been punished for it.165 The most groundbreaking aspects

of the agreement are three new rules regarding high seas fishing operations:

• Each flag State must ensure that its vessels do not engage in any activity that undermines the effectiveness of international fishery conservation and management measures, whether or not the flag State is a member of the regional fishery organization that adopted such measures;

• No vessel is to be used for fishing on the high seas without specific flag State authorization; and

• No flag State shall grant such authority to a vessel unless the flag State is able to control the fishing activities of that vessel.166 These three rules represent a new vision for high-seas fisheries. To abide by these rules, flag States must actively oversee the high-seas fishing operations of their vessels. They must decide on a case by case whether to authorize any vessel to fish on the high seas. Most Ibid. art III.

Ibid. art VI.

Agenda 21, 17.52.

The FAO Compliance Agreement. art III.

Ibid. art VI.

Ibid. art III, 8.

D. Balton. International Instrument for International Fisheries. Office of Marine Conservation U.S. Department of State. 2002. 5 p.

- 54 importantly, they may not permit any vessel to fish on the high seas at all unless they are able to prevent the vessel from undermining agreed high-seas conservation rules.167 The FAO Compliance Agreement is an international convention that responds directly to the recommendation made in Agenda 21168 for action to ensure effective monitoring and enforcement of high seas fishing activities. It contains both of regulations and punishments. All States have the duty to take, or to cooperate with other States in taking the measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.169

4. The 1995 the United Nations Convention Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks The 1995 Agreement on Straddling Stocks and Highly Migratory Stocks (UNSFA) was one of the concrete results to UNCED. It was adopted on 4 December 1995 in New York and entered in force on 11 December 2001.170 Currently, there are 67 parties to their convention.171 UNSFA contains 50 articles and 2 annexes,172 incorporates the concept of precaution, strengthens the role of regional organizations in the management of straddling fish stocks, and encourages consideration of fisheries in a wider ecosystem context.173 It also elaborates on the fundamental principle, established in the LOSC that States should cooperate to ensure conservation and promote the objective of the optimum utilization of straddling and highly migratory fish stock both within and beyond the EEZ.174 The provision of UNSFA regarding

these stocks can be summarized as follows:

The FAO Compliance Agreement. art III.


Ibid United Nations, General Assembly. UNFSA. New York, 1995. A/CONF. 164/37. 1-1 pp.

As at 7 August 2007 United Nations, Table recapitulating the status of the Convention and of the related Agreements (2007 [cited 7 August 2007]); available from http://www.un.org/Depts/los/reference_files/status2007.pdf.

United Nations, UNFSA. New York, 1995. A/CONF. 164/37. 40 p.

L. Juda. The 1995 the United Nations Convention Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique. Ocean Development & International Law. 1997. 28: 147-166 pp.

LOSC. art 63- 64

–  –  –

UNSFA represents a significant attempt to develop a coherent management regime for fish stocks through out their migratory range. As such it may be seen as an important part of the broader historic trend toward a more managed ocean environment, one in which coastal State interests increasingly predominate with respect to the allocation and conservation of marine living resources, and in which the traditional concept of the freedom of the seas is limited.183 On 22-26 May 2006, the UNSFA Review Conference was held in New York.184 The

principle outcome of the Review Conference included:

UNSFA, Part II art 5 (c) and art 6, 1.

UNSFA, Part II art 5 (e) UNSFA, Part II art 5 (f) UNSFA, Part II art 5 (g) UNSFA, Part III art 1 and 3 UNSFA, Part II art 5 (i) UNSFA, Part II art 5 (j) UNSFA, Part II art 5 (l) L. Juda. The 1995 the United Nations Convention Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. 1997. op. cit. 147-166 pp.

United Nation, General Assembly, Review Conference on the Agreement for the Implementation of the Provisions of the United Nation 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, New York, 22-26 May

2006. A/CONF.210/2006/15. 43 p.

- 56 Conservation and management of fish stocks and highly migratory fish stocks:

The Conference adopted the measures to ensure the long term sustainability of straddling fish stocks and highly migratory fish stocks and addressed over fishing, overcapacity and effects of fishing on marine environment; cooperation to manage fisheries not regulated by a regional fisheries management organization and the collection and sharing of data. The Review Conference recommended that States individually and collectively through Regional Fisheries Management Organizations (RFMOs) to: strengthen the commitment to adopt and fully implement, improve cooperation between flag state whose vessel fish on high sea or the areas under national jurisdiction, implement the ecosystem approach to fisheries approach, closed areas to manage fisheries and to protect habitat and biodiversity, conservation and management of discrete stocks.185

• Mechanism for international cooperation and non members:

The Conference reviewed that even a significant number of States whose vessels fish for stocks regulated by RFMOs have become members and promote nonmember adherence to adopted conservation and management measure including data collection and monitoring control and surveillance measures, however problems of non compliance by members and cooperative members and fishing by nonmembers, continue to undermine the effectiveness of adoption. The Review Conference urged to strengthen the mandates of RFMOs to implement modern approach to fisheries management, cooperate among existing and developing organizations, encourage nonmembers to join the RMFOs, improve transparency of RFMOs and criteria for allocating fishing opportunities, develop best practice guide line for RFMOs,186 to ensure the opting –out parties is constrained by rule to prevent undermining conservation.187 Ibid. 31-33 pp.

See Chatham House, The Royal Institute of International Affairs. 2007. Recommended Best Practices for Regional Fisheries Management Organizations Executive Summary. Report of an independent panel to develop a model for improved governance by Regional Fisheries Management Organization. 20 p.

United Nation, General Assembly, Review Conference on the Agreement for the Implementation of the Provisions of the United Nation 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, New York, 22-26 May

2006. op. cit. 36-37 pp.

- 57 Monitoring, control and surveillance and compliance and enforcement:

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