Originally published as [2001] International Fisheries Bulletin No. 24

Entry into force of the United Nations Fish Stocks Agreement: An Initial Assessment

The entry into force of the UN Fish Stocks Agreement, some six years after its adoption in New York in 1995, is a highly significant event for the international law of high seas fisheries. Its provisions have already had an important impact in the conduct of international fisheries relations and its entry into force now creates binding obligations on its party States. However, a number of concerns remain about its impact, primarily in relation to the lack of participation of a number of important coastal and distant-water fishing States and also in relation to continuing differences of opinion regarding the interpretation of a number of important provisions. This report briefly reviews the application of the Agreement to date, the implications of entry into force and the prospects for the future implementation of the Agreement.

Introduction

The United Nations Fish Stocks Agreement entered into force on 11 December 2001, some six years after its adoption in New York in December, 1995. This is, of course, a highly significant event for the international law of high seas fisheries as it brings into force a legally binding regime designed to implement in detail the obligations of cooperation and conservation contained in Articles 63(2) and 64 of the UN Law of the Sea Convention. Its provisions have, in fact, already had an important impact on the conduct of international fisheries management with the attempted application of a number of key provisions by States through regional fisheries organizations. However, a number of concerns remain about its impact, primarily in relation to the lack of participation of a number of important coastal and distant-water fishing States and also in relation to continuing differences of opinion regarding the interpretation of a number of important provisions. This report briefly reviews the application of the Agreement to date, the problems in relation to participation and concludes with a short commentary on the future problems and prospects for the Agreement.

Application to date

It is clear that the UN Fish Stocks Agreement has already had a marked impact on international fisheries management. Furthermore, it is clear that that impact has not been confined to the conservation and management of straddling and highly migratory fish stocks, as a number of organizations involved in the management of other types of fish stocks (such as the North Atlantic Salmon Conservation Organization and the North Pacific Anadromous Fish Commission) have recognized the applicability of many of the Agreement's provisions to such stocks. The following sections briefly review some of the main developments in regional fisheries organizations.

Strengthening cooperation

Part III of the Agreement, on mechanisms for international cooperation, is broadly based on two objectives - (1) the strengthening of existing institutional structures for the conservation and management of straddling and highly migratory fish stocks and (2) where no such structures exist, the establishment of new organizations or arrangements. 

Strengthening of existing institutional structures

As regards the former objective, the Agreement specifies a number of ways in which existing organizations are to be strengthened, with an emphasis on participation by all interested States and on the functions of organizations and arrangements. As the following discussion will show, States have adopted a number of such measures in accordance with (or at least reflecting) the provisions of the Agreement. These measures will be considered below. At a general level, however, it is clear that there has been a strengthening of existing organizations dealing with straddling and highly migratory fish stocks. In particular, a number of organizations which had been mostly inactive prior to the mid-1990s have undergone something of a reactivation: that is the case, for example, with the North East Atlantic Fisheries Commission (NEAFC) which has adopted a number of new management measures in recent years and the Inter-American Tropical Tuna Commission (IATTC), which is currently reviewing its 50-year old constitutive treaty in line with the LOS Convention and the Fish Stocks Agreement. Mention should also be made of the General Fisheries Commission for the Mediterranean (GFCM), which underwent a major revision in 1997 through the adoption of a new constitutive treaty. There have been positive developments also in relation to participation in these organizations. In particular, the participation of the European Union (as a regional economic integration organization) has been enabled in two organizations (GFCM and the International Commission for the Conservation of Atlantic Tunas - ICCAT) and is being negotiated in another (IATTC). The participation of such organizations is envisaged in the LOS Convention and the Fish Stocks Agreement, but has not been possible in a number of organizations in the past. A number of organizations - notably ICCAT (in relation to China, Honduras and Panama) and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT - in relation to South Korea) have also benefitted since 1995 in the accession of a number of previously problematic non-member States. 

It is of course not necessarily the case that all of these events can be attributed directly to the intended application of the Fish Stocks Agreement, but these developments have certainly resulted from the general impetus provided from recent developments in international fisheries law, of which the Agreement is a major component.

Establishment of new organizations

A number of new organizations or arrangements have been established in the last few years. Two of these - the 2001 Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (the "SEAFO Convention") and the 2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (the "Western and Central Pacific Tuna Convention") - are notable for their close resemblance to the UN Fish Stocks Agreement. It was the expressed intention of the participants in the negotiations for these two agreements that there was to be no reformulation of the discussions and conclusions of the UN Fish Stocks conference with the result that the two texts, in the most part, closely follow the provisions of the UN Fish Stocks Agreement. They thus serve as interesting benchmarks for the UN Agreement, as one deals with straddling stocks whilst the other deals with highly migratory stocks. 

In contrast, a number of other agreements have been adopted since 1995 which are notable, amongst other things, for the fact that they can be differentiated in some way from the Fish Stocks Agreement. Falling into this category are: the 2000 Framework Agreement for the Conservation of the Living Marine Resources of the High Seas of the South Pacific (the "Galapagos Agreement"); the 1999 Agreement between Iceland, Norway and Russia Concerning Certain Aspects of Cooperation in the Area of Fisheries (the "Loophole Agreement"); and the 1996 Protocol on the Management of the Norwegian Spring Spawning Herring Stock in the Northeast Atlantic (the "Norwegian herring Protocol"). In a sense, all of these agreements may be seen as an application of Article 8(5) of the Fish Stocks Agreement (on the establishment of new organizations or arrangements) and are certainly seen by the participants as the implementation of, inter alia, Article 63(2) of the LOS Convention (on cooperation in the management of straddling stocks). However, in the case of the Galapagos Agreement - which was concluded by four Latin American States none of which have acceded to the Fish Stocks Agreement (and apparently do not intend to) - it is notable that the language of the Fish Stocks Agreement has generally not been followed and a number of key provisions and balances contained in the Agreement are rejected. It is also worthy of note that the Fish Stocks Agreement is not referred to in the Preamble or elsewhere in the Agreement and is excluded from the definition of "relevant principles of international law" in Article 1. The Agreement represents, therefore, something of an alternative approach to the UN Fish Stocks Agreement. The extent to which this Agreement is consistent with the rights, duties and balances contained in the LOS Convention and the Fish Stocks Agreement has been the subject of some debate. The cases of the Loophole Agreement and the Norwegian herring Protocol are slightly different in that the language of the agreements reflects more closely the language and principles of the Fish Stocks Agreement. The Fish Stocks Agreement is also expressly referred to in both instruments. The Loophole Agreement is of note, however, because it is framed in terms of coastal States, possibly as an attempt by its participants to exclude the application of the Fish Stocks Agreement (and, presumably, its inspection and dispute settlement provisions in particular). The Norwegian herring protocol is of note mainly because it was an agreement negotiated outside the framework of NEAFC (the obvious responsible management body for the stock beyond national jurisdiction) mainly with the intention of excluding certain interested States. Nevertheless, these two agreements may be seen as emerging from the UN Fish Stocks Agreement process.  

General principles

There has been considerable discussion of the general principles contained in the Agreement, including those in Part III as well as Part II. It is, of course, the case that many of these principles reflect already existing conservation and management measures in some regional fisheries organizations. In other cases, the Agreement has initiated wide-ranging discussions although, in general, has not led to the adoption of many concrete measures. That is particularly the case in relation to the precautionary approach, which has been debated widely in several regional fisheries organizations (most extensively, perhaps, in NAFO and ICCAT) but has yet to applied fully to management decisions. To a large extent, this appears to be because of a genuine difficulty in determining and applying precautionary reference points rather than a lack of political will.

Monitoring, control and enforcement

The adoption of measures and schemes in relation to monitoring, control and enforcement is possibly one of the areas of fisheries management which has undergone the greatest development in recent years. It is likely that this can be attributed to a considerable degree to the Fish Stocks Agreement as it not only contains detailed provisions on monitoring, control and enforcement but also envisages the possibility of alternative (but consistent) schemes being adopted by regional fisheries organizations. A number of States have viewed this as an opportunity to limit the application of certain provisions in the Fish Stocks Agreement (notably those relating to non-flag State inspection and the use of force) by adopting a slightly amended enforcement scheme through regional fisheries organizations.

Comprehensive schemes of inspection and enforcement have been adopted by NAFO, NEAFC and CCAMLR (although it has not yet been determined in the latter organization whether the UN Fish Stocks Agreement applies to it or not). These schemes contain many similar elements, particularly the NAFO and NEAFC schemes (the latter having been modeled on the former). These two schemes provide for mutual boarding and inspection rights and procedures and for the possibility of dockside inspections. In general, they follow extremely closely the provisions of the Fish Stocks Agreement. ICCAT has recently also introduced a number of control and inspection measures, including a pilot vessel monitoring system, a flag State inspection system, port State inspection and measures directed to control transhipments at sea. In other organizations, considerable attention is being devoted to inspection and enforcement issues. In the IOTC, for example, a meeting was held in 2001 to elaborate an integrated control and inspection scheme and at its 6th Session in December 2001, it was agreed to establish a Control and Inspection Committee. A number of Resolutions were also adopted, designed to implement minimum control measures on a provisional basis until the integrated control and inspection scheme is adopted. 

Action against non-parties

Like monitoring, control and enforcement, the issue of non-member fishing is an area of fisheries management which has undergone considerable development in recent years. The Fish Stocks Agreement does not lay down detailed provisions on this issue, but - recognizing that the Agreement and other fisheries agreements could be rendered largely ineffective if the problem was not addressed - much work has been done since, culminating in the adoption of the International Plan of Action on IUU fishing, by the FAO in 2001. In the meantime, a number of regional fisheries organizations, including NAFO, NEAFC, ICCAT and CCSBT, had adopted their own schemes designed to promote compliance by non-contracting parties. The schemes are broadly similar and consist of a presumption that vessels from non-member States are undermining the conservation and management measures established by the organization. In the case of NAFO and NEAFC the principal consequence is that landings will be prohibited in the ports of member States unless it can be shown that the catch taken by the vessel in question was of non-regulated species or from outside the regulatory area of the organization. In the case of ICCAT, vessels identified as fishing in a manner which diminishes the effectiveness of conservation measures are subject to other action by ICCAT members, including non-discriminatory trade restrictive measures tuna products. A number of States have been identified under this scheme and trade sanctions have been utilized against them, in some cases leading to positive compliance results. In 1998, the CCSBT adopted an Action Plan concerning Promotion to and Cooperation with CCSBT by Non-Member Entities, which is in similar terms to the ICCAT Scheme, consisting of a "cooperating non-Contracting Party" scheme and the possibility of trade restrictive measures against non-cooperating States. No trade measures have as yet been imposed, however, although three States have been sent final notifications. Finally, mention should also be made of the IOTC which, at its 6th Session in December 2001, adopted two Resolutions dealing with non-parties: one establishing a scheme to promote compliance by non-contracting party vessels and one urging non-members to limit their fishing effort on bigeye tuna; as regards the former, the Scheme is similar to those adopted by other organizations, principally in that it provides that vessels of non-member States which have been sighted fishing in the IOTC Area are presumed to be undermining IOTC conservation and management measures. Additionally, the IOTC established a Cooperating Non-Party State Scheme in 1999 under which non-member States which voluntarily ensure that its vessels comply with IOTC conservation and management measures are classified as cooperating States and are not subject to action by IOTC. 

Settlement of disputes

To date very few regional fisheries organizations have established formal systems for the settlement of disputes and the adoption of the Fish Stocks Agreement has not brought about any significant change in this situation. The only regional fisheries organization which appears to have made any substantial progress towards developing procedures for the settlement of disputes is NAFO, which has been discussing the introduction of its own system since 1995 but as yet without agreement. A draft text for a system has been drawn up, however, which sets out the procedure for resolving disputes within the Organization but provides that, if these procedures prove unsuccessful, the procedures set out in the LOS Convention and the UN Fish Stocks Agreement are to apply the dispute, whether or not the parties to the NAFO dispute are parties to either of those agreements.

Participation

It is obvious that if the UN Fish Stocks Agreement is to be successful the widespread participation of interested States, both coastal and distant-water, is required. During the conference that negotiated the Agreement, there was a genuine sense of optimism that this objective would be achieved - a large number of States participated to some extent in the negotiations and these States consisted of virtually all of the principal coastal and distant-water States. However, the current make-up of parties to the Agreement is a cause of concern. Of the thirty States currently party to the Agreement, virtually all are coastal States. Furthermore, the vast majority of these are developing or small island developing States with effectively no (or very limited) distant-water fishing interests. Of the developed (or transitional economy) States, only Australia, Brazil, New Zealand, the Russian Federation and the United States, which all have interests in important tuna fisheries, have significant distant-water fishing interests and even then only the latter two would normally be considered as having mixed interests as opposed to having mainly coastal State interests. (At the conference, these two States occupied the middle ground to a certain extent, whilst the other States are more normally thought of as being more firmly in the coastal State groupings). That is not to say, of course, that the participation of these States is not welcome. Many of the developing States in particular have, as coastal States, very strong interests in the management of straddling and, in particular, highly migratory stocks. The point is, of course, that there is currently a major imbalance in the Agreement.

Indeed, there are a number of notable absentees from the list of parties, chief amongst them the major distant-water entities, namely: China, the European Union, Japan, Poland, South Korea and Taiwan. All of these entities have signed the Agreement but all have expressed, either openly or internally, certain reservations to the Agreement. It is likely that the European Union and its 15 Member States will ratify the Agreement in the foreseeable future, but it is perhaps less certain that the other States will do so. It is, of course, not only distant-water States that are notable by their absence. A number of coastal States which have active straddling and highly migratory stock interests have also yet to ratify or accede. Indeed, four of the most important of these - Chile, Colombia, Ecuador and Peru - have effectively opted out of the Fish Stocks Agreement. None are a signatory and in 2001 they set up their own regional agreement ("The Galapagos Agreement") which, as has been noted, rejects some of the key provisions of the 1995 Agreement. Finally, it is also notable a number of other major fishing nations have not yet ratified or acceded to the Agreement. These States do not necessarily all have major straddling stock or highly migratory stock interests, but nevertheless there participation is desirable. WWF International, for example, has pointed out that 15 of the world's top 20 fishing nations have failed to ratify the agreement. In addition to those mentioned above, this list includes: Indonesia, India, Thailand, the Philippines, Malaysia, Mexico, Vietnam and Argentina. 

The lack of participation amongst States with the relevant straddling or highly migratory stock interests is further evidenced by the general lack of Agreement parties in regional fisheries organizations. With the exception of the FFA, where 10 of the 16 members are party to the Agreement, most RFOs only have a small number of members (sometimes only one or two) which are parties to the Agreement. (It should also be pointed out that the FFA, which excludes distant-water States, is not in fact a fishery management organization as envisaged in the LOS Convention or the Fish Stocks Agreement). In some cases, the regional fisheries organizations have been able to circumvent this problem of participation by adopting their own measures consistently with the Fish Stocks Agreement, as has been noted.

The final area of concern in terms of participation is that none of the major "flag-of-convenience" countries have participated in the Agreement. This is, of course, entirely predictable but nevertheless poses a serious threat to the future success and stability of the Agreement. In 2001, Greenpeace identified the top 10 FOC fishing countries: Belize, Honduras, Panama, St Vincent and the Grenadines, Equatorial Guinea, Cyprus, Vanuatu, Sierra Leone, Mauritius and the Netherlands Antilles. Of these only Mauritius (9th on Greenpeace's list) is a party to the LOS Convention and just two - Belize and the Netherlands Antilles (which fall under the national responsibility of the Netherlands, as opposed to the EU) - have signed the agreement.

Commentary: implications of entry into force

The entry into force of the UN Fish Stocks Agreement is, of course, a highly significant event for the international law of high seas fisheries. Although, as has been seen, much progress has already been achieved with regard to the implementation of its provisions, its entry into force establishes a legally binding and enforceable regime for its parties. This should create further impetus towards the full implementation of its provisions. Possibly the most important implications, however, are the entry into force of the provisions on inspection and enforcement and on dispute settlement since it is through these provisions that the regime can be enforced. Thus, the provisions on non-flag State boarding and inspection are now in force for the parties, as are the provisions on the compulsory settlement of disputes. The practical impact of these provisions is, of course, tempered to a large extent by the poor level of participation in the Agreement. As regards the provisions of boarding and inspection, some regional fisheries organizations, as has been noted, have adopted their own schemes, consistently with the Fish Stocks Agreement, thus alleviating this problem. However, no regional fisheries organization has yet adopted provisions on dispute settlement. As most Agreement parties are currently coastal States and disputes are most likely (but not certainly) to be between coastal States and distant-water States, it is probable that most disputes would currently fall outside the Agreement mechanism (as both parties to the dispute have to be Agreement parties for that mechanism to apply). An approach like that being currently considered by NAFO (whereby the LOS Convention/Fish Stocks Agreement mechanisms are applied to disputes arising under that organization) is commendable.

The dispute settlement provisions of the Agreement could in fact have an important role to play, as it is clear that potential conflicts exist in relation to the interpretation and implementation of the Agreement. These include the difficulty of applying the precautionary approach and setting precautionary quotas in practice, problems of determining compatibility in conservation and management measures and, possibly above all, the so-called new entrants problem. As regards the latter, agreements such as the Barents Sea Loophole Agreement and the Norwegian herring protocol highlight the approach existing participants in fisheries have taken in order to limit the participation of new entrants. The problem was highlighted further during the negotiations for the Western and Central Pacific Highly Migratory Stocks Convention, where certain States or entities which expressed an interest in the fisheries concerned were excluded from the negotiation process. This included the European Union which, although it did not have an extended fishing history in the region, at the time had (Spanish) vessels fishing in the region.

This problem highlights two issues. First, there is the issue of accommodating new entrants. This is, in fact, a rather complex issue (which due to space is largely beyond the scope of this commentary) and will be left, ultimately, to determination by State practice. To date, there has been some suggestion (as emerged most notably during the negotiations for the Western and Central Pacific Convention) that where an existing fishery is fully exploited the fishery could be closed to new entrants. Such a view is problematic, however, since it appears to contradict the principle of freedom of fishing on the high seas. It appears to the present author that a preferable approach would be one of inclusion. This need not necessarily imply an immediate allocation of quota for new entrants, however. Thus, where a State has a real interest in the fisheries concerned (which should be evidenced primarily by reference to the activities or planned activities of the State itself and should not necessarily be a burdensome standard to meet) it should be allowed to participate in the relevant regional organization. However, where the fishery is already fully exploited the new entrant need not necessarily be allocated a quota immediately but can earn the right to future allocations when stocks recover by contributing to the conservation and management of stocks and addressing the other matters listed in Article 11 of the Agreement. 

Secondly, there is the issue of what the duties and responsibilities are of a non-participating State (whether by election or exclusion). The Agreement, of course, sets out the basic duties and responsibilities for such States in Article 17, which provides, inter alia, that a non-participating State is not exempt from the duty to cooperate for the conservation and management of straddling stocks and that the conservation and management measures established by the regional organization should be applied de facto by the non-participating State as extensively as possible. These obligations should be read in conjunction with Article 18(1), which provides that States are to ensure that its vessels do not engage in any activity which undermines the effectiveness of internationally agreed conservation and management measures. It would appear that the effect of these provisions is that a non-participating State would be expected to comply with conservation and management measures to a large degree (for example, by observing biological rest periods, closed areas, gear requirements and other technical conservation measures) and to monitor its vessels properly to ensure compliance with the conditions accepted by it. As regards a quota, this should not be set at a reasonable level. It is difficult to see that where a non-participating State applies all technical conservation and management measures established by a competent regional fisheries organization, implements adequate monitoring and control measures and sets itself a quota which is not excessive that the obligations in Articles 17 and 18 would not be fulfilled. 

As the above discussion should show, there are potential pitfalls and conflicts ahead as States attempt to interpret and implement the provisions of the Agreement. However, it is clear that the Agreement has already contributed significantly to the improvement in international fisheries management and that its entry into force should allow it to continue to do so. However, the realisation of the full benefits of the Agreement is currently being impeded by the lack of participation of a number of key States. The lack of participation by "flag-of-convenience" countries, although predictable, is a long-term threat to the success of the Agreement as it provides vessels with the opportunity to circumvent the Agreement regime entirely. It is to be hoped that measures currently being taken outside the Agreement framework (e.g. through the IPOA on IUU Fishing and through regional fisheries organizations) are effective in reducing this problem. The lack of participation by the major distant-water States and certain coastal States is of equal concern. The Agreement can only have a limited, indirect impact if these States remain outside the Agreement. As regards the Galapagos Agreement States it is likely that their rejection of the Agreement will be long-term. As regards the other States it is a case of watch this space. However, it is to be hoped that they progress to ratification or accession as soon as possible. 

Chris Hedley
IGIFL Editor