The entry into force of the 1995 UN Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the UN Fisheries Agreement) is an important milestone in the evolution of international maritime law. The UN Fisheries Agreement should serve to greatly enhance the efforts of governments, regional fisheries management organizations and others to better manage fisheries and protect the marine environment, provided the Agreement is effectively implemented.

Strong and effective measures such as those contained in the Agreement are now more urgently needed than ever. The State of World Fisheries and Aquaculture 2000, published by the UN Food and Agriculture Organization (FAO) reports that 72-78% of major fisheries are fully exploited, over exploited or depleted and that most of the world’s marine ecosystems “are close to full exploitation” with the Eastern Indian Ocean and the Western Central Pacific “the only areas showing little sign of stress”.[1] More worrisome are scientific studies indicating profound changes to ocean and coastal ecosystems as a result of intensive fishing pressure. Reviewing 40 years of catch data compiled by the UN FAO, Pauly et al in 1998 calculated that the mean trophic levels of marine ecosystems are in decline as a result of overfishing top predators such as sharks, cod, tunas, and swordfish - a trend sometimes referred to as ‘fishing down the marine food chain’.[2]

More recently, Jackson et al took a much longer term view and reviewed paleoecological, archaeological and historical data on the exploitation and collapse of coastal ecosystems over the past 125,000 years. They conclude that the massive overharvesting of large marine vertebrates including numerous species of fish, dugongs, sea cows, sea turtles, whales and other marine mammals has led to major structural and functional changes in coastal ecosystems, often leading to the wholesale collapse of ecological communities and weakening these systems’ ability to withstand the deleterious effects of other human impacts such as nutrient runoff or global climate change. The authors conclude that the collapse of marine ecosystems may take decades or centuries to occur after the initial onslaught of overfishing, raising the prospect that many more marine ecosystems may yet collapse as a result of the technological intensification and globalization of overfishing within the past 50 years.[3]

Greenpeace took an active interest in the negotiation of the UN Fisheries Agreement throughout the period of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks.[4] The Agreement advances international fisheries law in a number of important areas such as flag state responsibility, high seas enforcement and the settlement of disputes. Here however, I will concentrate my comments on an area of the Agreement of particular importance to Greenpeace and to many NGOs - the conservation and management provisions found in Articles 5, 6 and their associated Annexes.

Article 5 contains "General Principles" for fisheries conservation and management, including provisions related to excess fishing capacity, the precautionary approach, bycatch and marine biodiversity. Article 6 and Annex 2 contain detailed measures providing for the application of the precautionary approach to the conservation and management of straddling and highly migratory fish stocks, the conservation other species impacted by fishing, and the protection of the marine environment.

The provisions of Articles 5 and 6 are a package of inter-related obligations, and should be implemented as such. States are required to set conservation and management measures (e.g. quotas, access limitation, gear restrictions, allocation of catch) that are "precautionary" in nature [Art. 5(c), Article 6]. States are under the obligation to assess the impact of fishing on associated and dependent species and those belonging to the same ecosystem as the fished stocks [Art. 5(d) and 6.3(d)] and establish management measures that must ensure the protection of marine biodiversity [Art. 5(g)]. States are further obligated to take into account the interests of subsistence and artisanal fishers [Art. 5(i)]; minimize waste, bycatch and discards [Art. 5(f)]; prevent or eliminate overfishing and excess fishing capacity [Art. 5(h)]; take into account the uncertainties inherent in fisheries data and science [Art. 6.3(c)]; ensure the conservation of other [non-target] species [Art. 6.3(d)]; and protect habitats of special concern [Art. 6.3(d)]. For new and exploratory fisheries, the precautionary approach provisions require States to first assess the long term potential sustainability of the stocks and only then allow the gradual development of the fishery [Art. 6.6].

The precautionary approach provisions, while not nearly as strong as Greenpeace and a number of other NGOs would have liked, nonetheless offer the potential of being used to reverse the laissez faire approach prevalent in the management of so many of the world's fisheries. Rather than allowing fisheries to go unmonitored and unregulated until there is absolute proof of overfishing or harm to the marine environment, the Agreement mandates that the absence of scientific information cannot be used as an excuse for failing to establish conservation and management measures.

States are required [Art. 6.3(b)] to set precautionary "reference points" to guide management measures according to the guidelines established in Annex II. States are required to set precautionary reference points to determine target levels of fishing effort designed to ensure that the biomass (or abundance) of fish stocks is maintained or restored to some level above that which can produce Maximum Sustainable Yield (MSY). States are required to be "more cautious" when information is uncertain and take into account the resilience and reproductive capacity of stocks. As with the other provisions of these Articles, precautionary "reference points" for the purpose of setting levels of fishing effort must be consistent with the package of provisions contained in Articles 5 and 6 as a whole. Precaution must be applied to ensure the conservation of other species belonging to the same ecosystem and the protection of marine biodiversity overall, in addition to the conservation of targeted fish stocks.

Articles 6.2, 6.3 and Annex II.3 essentially establish a degree of proportionality to the setting of precautionary reference points. The greater the vulnerability of fish stocks to overexploitation or the vulnerability of other species in the ecosystem to adverse impacts from fishing (either directly as bycatch or indirectly through food wed interactions), the more conservative the reference points must be. This in turn would require more conservative management measures such as stricter quotas and constraints on fishing effort. Likewise, the lesser the quality of the data associated with the fishery, whether it relates to catch, effort, the status of fish stocks or the status of other species in the ecosystem potentially affected by fishing, the more precautionary the quotas and other management measures must be. In the absence of any reliable data or information whatsoever, a fishery essentially would not be permissible under the Agreement.

The provisions of Article 5, 6 (and others) should prove useful to advocates for marine conservation in a number of ways. For example, on the issue of fishing gear selectivity, Article 5(f) requires States to minimize waste, bycatch, discards and impacts on non-target species through the use, "to the extent practicable" through the development and use of selective fishing gears and techniques. It should be argued that in addition to developing more selective gears and practices, Article 5(f) would require States to grant a priority to more selective fishing practices where these are already in use, e.g. hand-line or pot/trap fishing as opposed to bottom-trawling, when deciding on quotas, allocation and other conservation and management measures in a particular fishery.

Article 6.6 requires that States must adopt "cautious" measures before allowing the commercial development of new or exploratory fisheries, whether inside or outside of national waters, for highly migratory or straddling stocks. Only after conducting an assessment of the potential long-term sustainability of fishing on the stocks, based on solid data and a comprehensive assessment of the potential impact of fishing on other species, may the fishery be allowed to gradually develop, "if appropriate". If appropriate should mean that the fishery must satisfy the criteria established in Articles 5 and 6 including consideration of the interests of subsistence and artisanal fishers, the conservation of non-target species, the use of selective fishing gears, comprehensive programs for data collection, and in a manner designed to ensure the prevention of excess fishing capacity.

These provisions should prove particularly useful in reversing the current norm of unregulated development and expansion of new fisheries absent a real understanding of the species concerned, the potential impact on other species and habitats, and any effective management regime from the start. This is real problem in the developing fisheries for a number of straddling stocks (and other stocks) on deep-sea seamounts, plateaus, and ridges and other deep ocean areas of high biodiversity and requires urgent attention.

With respect to the protection of marine habitats, Article 6.3(d) requires States to adopt plans to protect habitats of special concern. This obligation should apply to areas such as shallow or deep water coral, coastal mangrove forests and other habitats which serve as spawning or nursery grounds for straddling or highly migratory species of fish, associated or dependent species, or species belonging to the same ecosystem. More generally, this should apply to any area of the marine or coastal environment critical to the protection of marine biodiversity (Article 5 (g)).

The provisions of these Articles apply to fisheries for straddling and highly migratory stocks inside EEZs as well as on the high seas, and they establish significant and important advances in international fisheries law which can and should serve as precedents for the management of fisheries on other types of stocks, including those found wholly within EEZs or on the high seas. Though many are general in nature, these provisions establish a legally binding framework for the more detailed elaboration and application of conservation measures at the regional and national levels.

An important element in the implementation of the Agreement may well come from arbitration. The International Tribunal for the Law of the Sea and other arbitration bodies may have an important role to play in the interpretation of these provisions in the event that States disagree over their implementation and submit their disputes to arbitration.

Although certainly the ‘courts’ will look to the measures adopted by States and regional fisheries management bodies consistent with the Agreement, they may look to the UN FAO Code of Conduct for Responsible Fisheries and its related International Plans of Action, amongst other instruments, for guidance as well. Indeed, the FAO Code was negotiated largely by the same countries (including many of the same representatives on national delegations) as the UN Agreement in a process that closely paralleled the negotiation of the UN Agreement.

For example, in Article 5(i) of the UN Agreement, States are required to “take into account the interests of artisanal and subsistence fishers”. Articles 11(d) and 24.2 express similar obligations including a requirement to ensure that subsistence, small-scale and artisanal fishers have access to fisheries.

The UN FAO Code of Conduct, in Article 6.18 states “Recognizing the important contributions of artisanal and small- scale fisheries to employment, income and food security, States should appropriately protect the rights of fishers and fishworkers, particularly those engaged in subsistence, small-scale and artisanal fisheries, to a secure and just livelihood, as well as preferential access, where appropriate, to traditional fishing grounds and resources in the waters under their national jurisdiction”. Taken together, the provisions of the Agreement and the FAO Code of Conduct should help advance the legal recognition of the interests of small-scale, artisanal, women and indigenous fishers at national and international levels.

In a similar vein, the provisions Parts V and VI of the Agreement related to the duties of flag states, compliance and enforcement are quite specific in many areas. However, a number of the provisions of the UN FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, adopted in 2001, elaborate in more detail the types of measures that States can and should take as port states, flag states, market states and countries of beneficial ownership in discharging their obligations to enhance and ensure compliance with the measures adopted by regional fisheries management bodies. Likewise, in relation to the obligation in Article 5(h) of the UN Agreement to “prevent or eliminate...excess fishing capacity”, the UN FAO International Plan of Action for the Management of Fishing Capacity should guide the interpretation of the types of actions this obligation entails.

Finally, on the question of transparency, an issue of concern to NGOs, the UN Agreement’s Article 12 is somewhat general in stating that “States shall provide for transparency”…and NGOs “shall be afforded the opportunity to take part in the meetings” of regional fisheries management organizations “in accordance with the procedures of the organization…concerned”. Such procedures “shall not be unduly restrictive…”. The UN FAO Code, in Article 6.13, further develops the issue of transparency: “States, in accordance with appropriate procedures, should facilitate consultation and the effective participation of industry, fishworkers, environmental and other interested organizations in decision making with respect to the development of laws and policies related to fisheries management, development, international lending and aid.”

Altogether the UN Fisheries Agreement provides a vision and establishes a clear set of obligations for sustainable, ecologically and socially responsible fisheries - fisheries where scientists apply the precautionary approach; quotas are set no higher than scientists’ recommendations; fisheries regulations both in EEZs and on the high seas are effectively enforced; small scale, artisanal fishers and fishers using selective fishing methods and gear are given a priority in setting management measures; bycatch and waste is minimized through the phase out of non-selective fishing practices; and critical habitats, such as shallow and deep water corals, and spawning and nursery grounds are protected through establishing marine protected areas, marine reserves or by other means.

Whether all or at least most major fishing states ultimately will take these obligations seriously and strive to meet their responsibilities remains to be seen. It is a tall order. Where states fail to do so of their own accord or collectively as members of regional fisheries management organizations, one hopes that the International Tribunal for the Law of the Sea and other arbitration bodies will carry forward the vision embodied in the UN Fisheries Agreement. Strict conservation oriented rulings for the long term sustainability of fisheries, the well being of the many hundreds of millions of people that depend on fisheries for food and livelihood, and the protection of the world’s marine biodiversity and ocean ecosystems are essential in the interest of effective ocean governance. The UN Fisheries Agreement provides a real tool to help reverse the current trend in the opposite direction - more excessive, indiscriminate and unregulated fishing - provided that its provisions are effectively implemented and enforced.

Matt Gianni
Oceans Campaign Coordinator, Greenpeace International