Factual background 1896 1920 1987 2006 World oceans: 72% of the - PowerPoint PPT Presentation

17/05/2017 Factual background 1896 1920 1987 2006 World oceans: 72% of the Earth’s surface Conservation and Sustainable Use of Marine EEZs: 30% of ocean space (under sovereign rights Biological Resources: Some Reflections from and state jurisdiction) the Evolving Management Approaches • 90% of world fish catch High Seas: 10% of world fish catch XUE Guifang (Julia) • Over 40% reported catch from high seas in the 1990s Chair Professor, KoGuan Law School • Exclusive Flag State Jurisdiction Director • Distant water fishing States counter responses to EEZ Center for Rule of Ocean Law Studies Center for Polar and Deep Ocean Development Shanghai Jiao Tong University 1

17/05/2017 Management Phases and Approaches Evolution of Legal Regimes Prior to 1958 conventions: Free fishing era 1958 High Seas Convention 1958-1982 UNCLOS: creeping jurisdiction: • Freedom of Fishing on high seas restricted fishing activities 1958 Convention on Conservation of Post UNCLOS responses: legislated control of Living Resources fishing related matters closing the legal loop holes 21 st Ocean Century: fill in the management gaps with • Flag State Regulation/responsibility a variety of international policy and legal • Failure to ratify Convention instruments, institutional arrangements and processes relevant to fisheries management and biodiversity conservations 2

17/05/2017 Environmental Instruments Relevant to Fishing and Environmental Instruments Its Impact on Marine Biological Diversity The Dumping Convention and its Protocol (London The Stockholm Declaration on the Human Convention 1972/1996) Environment made at the Stockholm Conference in 1972 Convention on Biological Diversity (CBD 1992) Convention on International Trade in Endangered • ….the need for a common outlook and for common principles to inspire and guide the peoples of the world in Species of Wild Fauna and Flora (CITES 1973) the preservation and enhancement of the human Convention on the Conservation of Migratory environment: 7 common outlooks + 26 principles . Species of Wild Animals (CMS 1979) International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries (IPOA- Seabirds 2000) 3

17/05/2017 Shipping Instruments Relevant to fishing and its Global Effort Addressing Environmental Issues Impact on Marine Biological Diversity IMO regulatory framework and standards to promote “Earth Summit” and the “Rio Declaration” 1992 “Rio+10” 2002 for 10 th anniversary of Rio safety, security and environmental performance of international shipping Conference (World Summit on Sustainable Development: WSSD) The International Convention for the Prevention of Pollution from Ships (MARPOL 1973/1983) and its Rio+20 (WSSD) annexes Revised Guidelines for Identification and Designation of Particular Sensitive Sea Areas (PSSAs) (IMO Assembly Resolution A. 982(24)), 2005 IMO Ship Identification Schemes (fishing vessels) 4

17/05/2017 UNCLOS Framework United Nations Convention on the Law of the Sea (UNCLOS 1982) Comprehensive legal framework for ocean A Constitution for the Ocean: The Most governance Comprehensive Single Convention Establish basic rights and duties of states in Codification of customary int’l law. relations to all maritime activities Common heritage of mankind. It is the most important instrument for regulating Extension of resource limits fishing and conservation of marine biodiversity • Exclusive Economic Zone within and beyond national jurisdiction • Continental shelf. Post UNCLOS instruments make reference to its • Archipelagic waters. provisions either explicitly or indirectly via dealing Progressive development by subsequent with issues covered by its general provisions. instruments …… 5

17/05/2017 UNCLOS Provisions UNCLOS Framework Freedom of Fishing on the high seas (Art. 87(1)(e)), Zonal Approach resulting in two distinctions: resource Subject to conditions: i.e. under (sovereignty, sovereign rights) and high seas • Art. 116: Treaty obligations Within areas of national jurisdiction • Rights duties and interests of coastal States in Arts. 63 (2), • Silent for conservation and management of marine living 64 and 67 resources in TS, Archipelagic waters • Duty to adopt measures in respect of nationals (Art. 117) • Protection and conservation of marine environment and • Duty to cooperate in taking measures in respect of nationals marine living resource in EEZ to conserve (Art. 117) Protection and preservation of the marine environment Art. 118: Cooperation to conserve and manage beyond national jurisdiction Art. 119: Conservation requirements: • Jurisdiction and control of fishing vessels on the high seas • TAC • Inclusion of power to prohibit or restrict fishing in certain • MSY-best science available areas to protect rare or fragile ecosystems • Dependent and associated species 6

17/05/2017 Limitations of the UNCLOS Regime High Seas Fisheries Challenges Vessel re-flagging to escape controls Resource Pool Not Under Single Ownership Zonal Approach: Artificial jurisdictional boundaries Use of “flags of convenience” vessels Freedom of Fishing on the high seas Unreliable data base Failure to define scope of cooperation Marginal high seas fishing • Failure to cooperate Lack of sufficient cooperation among Failure to regulate nationals States Failure to determine TAC Compatibility of EEZ/High Seas fishing regimes 7

17/05/2017 Post UNCLOS Responses: International Post UNCLOS Responses Fisheries Agreements Agenda 21 (1992)(Chapter 17): Sustainable 1992: Agenda 21: Chapter 17 (Ocean Chapter) development and protection of the oceans 1993: FAO Compliance Agreement States to take effective action to deter re- 1995: UNFSA flagging of fishing vessels 1995:Code of Conduct for Responsible Fisheries States to convene international conference IPOAs: 1999 IPOAs on Seabirds, Shark with a view to promoting effective Management, and Fisheries Overcapacity, 2001 on implementation of the Law of the Sea IUU Fishing Convention New instruments to resolve practical aspects and emerging issues : Flag State Guidelines 2008, Port State Measures 2009, and UN Resolutions 8

17/05/2017 Post UNCLOS Responses Post UNCLOS Responses Compliance Agreement 1993 : Agreement to promote Compliance Agreement 1993 compliance with international conservation and Not to authorize vessels unless sufficient links to management measures by fishing vessels on the high exercise flag State responsibilities effectively seas Link authorization to fish with right to fly the flag States to ensure that fishing vessels that fly their flags Enforcement procedures against vessels with do not undermine the effectiveness of international sanctions of “sufficient gravity” conservation and management measures Port State enforcement measures Proper authorization procedures for fishing vessels on the high seas Proper marking and full details of operations 9

17/05/2017 Post UNCLOS Responses Post UNCLOS Responses UN Fish Stocks Agreement 1995 UN Fish Stocks Agreement 1995 Scope Applies essentially to management measures on the high seas • Applies to Straddling Fish stocks and highly migratory fish stocks only Requires compatibility between high seas measures Requires cooperation among coastal States and and EEZ measures States whose national fish on the high seas to Requires the application of the precautionary cooperate by establishing Regional Fisheries principle both in areas under national jurisdiction Management Organizations and on the high seas 19 10

17/05/2017 Post UNCLOS Responses Post UNCLOS Responses UN Fish Stocks Agreement 1995 UN Fish Stocks Agreement 1995: Framework for Cooperation Framework for International Cooperation (Art. 8) obtain and evaluate scientific advice, review the • agree on specific conservation and management measures intended to ensure the long-term status of the stocks and assess the impact of fishing sustainability of the stocks; on non-target and associated or dependent species; • agree on participatory rights such as allocation of agree on standards for collection, reporting, allowable catch or levels of fishing effort; verification and exchange of data on fisheries for the • adopt and apply any generally recommended stocks; international minimum standards for the responsible compile and disseminate accurate and complete conduct of fishing operations; statistical data to ensure that the best scientific evidence is available; 11

17/05/2017 Post UNCLOS Responses Post UNCLOS Responses UN Fish Stocks Agreement 1995: Regulation of non- UN Fish Stocks Agreement 1995: Framework for Parties Cooperation Only States which are members of regional/sub-regional promote and conduct scientific assessment of the organisations or arrangements or States which agree to stocks and relevant research and disseminate the apply the conservation and management measures results of such research; instituted by the organisation or arrangement can have establish appropriate co-operative mechanisms for access to the fisheries resources to which the measures effective monitoring, control, surveillance and apply (Article 8(4)). enforcement; agree on means by which fishing interests of new members of, or participants in, the organisation or arrangement will be accommodated; 12