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Australian Year Book of International Law |
William Edeson[∗]
Don Greig is well known for his contributions to what might be termed ‘hard’ law, and in the international law area, his works on treaties stand out as examples of this. To choose to contribute an essay on ‘soft’ law to a collection dedicated to acknowledging his enormous contributions might seem ironic. However, the evolution of this topic was quite simple. It was to have been a study of the role of treaties in the area of fisheries, but it was soon apparent that quite enough had been written on the subject. It was then decided that the topic might also consider the so-called soft law instruments in the area of fishing. It was but a short step to focus on the latter to the virtual exclusion of the hard law instruments, as this is a topic only marginally covered so far in legal literature. I acknowledge a considerable debt to Don Greig, having worked with him in three different law schools: Monash University, University of Wales (Cardiff) and The Australian National University. Don Greig throughout his career has shown a lively disregard for conventional wisdom and has often taken a stand on many initially unpopular ideas.
The objective of this paper is to trace the evolution of the modern regime governing fishing from the point of view of the range of soft law instruments that have been employed to accompany the hard law solutions. The term ‘soft law’ is used here simply to refer to instruments that were not intended to give rise to legal obligations (such as treaties, or judicial decisions) but that were often drafted in a quasi-legal style,[1] and for the most part were not intended (at least not directly) to create or lead to the development of any legal obligations.[2] The subject of fishing, especially concerning the high seas regime, has been the subject of much attention in the last decade, and has proved to be one of the more intractable problems facing the international community since the completion of the 1982 United Nations (UN) Convention on the Law of the Sea.[3] The solution to dealing with it has ranged from exhortatory statements such as can be found in the Rio Declaration and Agenda 21 of the UN Conference on Environment and Development (UNCED), the Declaration of Cancun, the use of General Assembly resolutions, which have on occasions had much greater impact than their actual legal status would suggest, accompanied by two binding instruments: the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, and the Agreement for the Implementation of the Provisions of the UN 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.[4] These have been followed by a voluntary Code of Conduct for Responsible Fisheries and, even more recently, by three plans of action, and two ministerial declarations. Lastly, though in point of time only, there has been an initiative known as IUU,[5] or illegal, unreported, and unregulated fishing, again, in the form of a voluntary plan of action, and its evolution is itself instructive as to how a plan of action can be formulated.
There can be little doubt that this mixture of hard and soft law has had its advantages, in particular through allowing certain principles to be stated in soft law documents that are largely hortatory. The area merits a more detailed analysis by political scientists but, from a legal point of view, it is interesting enough in itself.
After the completion of the 1982 UN Convention, it was recognised that high seas fishing had to a large extent been ignored at the negotiations at UNCLOS III, with the bulk of the attention being paid to the formulation of the exclusive economic zone (EEZ) concept. However, concern over the use of large-scale pelagic driftnets soon drew attention to the dangers of leaving the high seas in a largely unregulated state. These nets were of a such a large size and appeared to be so indiscriminate that they caught the popular imagination in a way that other, probably similarly harmful, equipment never did. This concern led, in a remarkably short period of time, to the formulation by the General Assembly of resolutions on large-scale pelagic driftnets.[6] These instruments should be classified here as ‘soft’ in view of the fact that their status is that of a recommendation. Here is an instance where the General Assembly, whatever the precise status of its resolutions, had a significant effect on the use of large-scale driftnets. Indeed, the first resolution had another impact, more subtle, as it utilised in an imperfect form the now widely accepted precautionary approach to fisheries management.
The first General Assembly resolution (AA/225) merits some closer attention in view of the enormous impact that it had, and because it was drafted in several respects in a normative style. A number of preambular clauses set out much background information, including, for example, the information on the number of fishing vessels using such methods in the Pacific. More interesting to lawyers is the way in which the 1982 UN Convention is referred to, especially in view of the fact that it had not at that moment entered into force. Thus, for example, following a preambular paragraph that recalled the relevant provisions of the 1982 UN Convention, it continued:
Affirming that, in accordance with the relevant articles of the Convention, all members of the international community have a duty to cooperate globally and regionally in the conservation and management of living resources on the high seas, and a duty to take, or to cooperate with others in taking, such measures for their nationals as may be necessary for the conservation of the resources.
This is backed up by other references which mention the ‘duty’ or the ‘responsibility’ of members of the international community to do certain things under the Convention.
The operative clauses of the resolution revert to the more traditional language of a recommendation. While using ‘should’ throughout, it nonetheless introduces an early version of the precautionary approach which has since become a well-established principle of the modern regime of fisheries. This was expressed in the following way:
Moratoria should be imposed on all large-scale pelagic driftnet fishing by 30 June 1992, with the understanding that such a measure will not be imposed in a region or, if implemented, can be lifted, should effective conservation and management measures be taken based on statistically sound analysis to be jointly made by concerned parties of the international community with an interest in the fishery resources of the region, to prevent unacceptable impact of such fishing practices on that region, and to ensure the conservation of the living resources of that region…
This was followed by resolution 46/215, which declared that, in accordance with resolution 44/225, ‘some members of the international community have reviewed the best available scientific data and have failed to conclude that this practice has no adverse impact which threatens the conservation and sustainable management of living marine resources’.[7] Since these resolutions, there have been regular reports to the General Assembly on the use of driftnets, and while their use has not altogether disappeared, there is little doubt that they have done much to reduce their incidence.
These two instruments were considered in the same year. Their impact on fisheries was mainly to initiate further work to deal with the remaining problems on the high seas, though Agenda 21 of UNCED was also important for pushing forward the precautionary approach. The Declaration of Cancun was instrumental in calling for a Code of Conduct for Responsible Fishing.[8] Agenda 21 of UNCED, on the other hand, set out an ambitious agenda for action, and for the high seas in particular.
It is worth briefly reflecting on these two instruments before turning to the next phase which is characterised by the preparation of a number of hard law instruments. These soft law instruments were each very effective in promoting certain objectives. The Declarations of Cancun and Agenda 21 of UNCED were clearly aimed at the political level, but they have both achieved some juridical recognition inasmuch as they are referred to in preambles to these later hard law agreements .
The Declaration of Cancun called upon states ‘to take effective action, consistent with international law, to deter reflagging of fishing vessels as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas.’ Similarly, Agenda 21 of UNCED made a call for action along these lines.[9] The matter was taken up further by the FAO Technical Consultation on High Seas Fishing in September, 1992, while at the 102nd session of the Food and Agriculture Organization Council, the Council ‘agreed that the issue of reflagging of fishing vessels into flags of convenience to avoid compliance with agreed conservation and management measures, … should be addressed immediately by FAO, with a view to finding a solution which could be implemented in the near future.’[10]
The role of Agenda 21 of UNCED and the Declaration of Cancun in the lead up to the formulation of the 1993 FAO Compliance Agreement is reflected in the preamble to the latter agreement, where it is stated:
Recalling that Agenda 21, adopted by the United Nations Conference on Environment and Development, calls upon States to take effective action, consistent with international law, to deter reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas’ while another preambular paragraph recalled the Declaration of Cancun “also calls upon States to take action in this respect”.
Likewise the preamble to the 1995 UN Fish Stocks Agreement reflects the same point in a more elaborate form:
Seeking to address in particular the problems identified in Chapter 17, programme area C of Agenda 21 adopted by the United Nations Conference on Environment and Development, namely, that the management of high seas fisheries is inadequate in many areas and that some resources are overutilized; noting that there are problems of unregulated fishing, over-capitalisation, excessive fleet size, vessel reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient co-operation between States.[11]
It is useful to compare these three instruments together. Although negotiated in different fora, these three instruments were negotiated by substantially the same representatives of states. This led to a certain amount of constructive overlap. In the case of the 1995 UN Fish Stocks Agreement, it enabled certain issues that could not be resolved in the Compliance Agreement to be resolved in the later agreement. A comparison of the scope of these three instruments also reveals what can be achieved when negotiating a soft law instrument compared with a hard law instrument.
The 1995 UN Fish Stocks Agreement deals with general principles and the precautionary approach, the special role of regional fisheries management organisations, and has some novel and imaginative enforcement provisions. Like the Compliance Agreement, it is only binding on the Parties to the Agreement. Thus, unless either Agreement, or certain of their principles, is capable of generating norms of customary international law in their own right, the basic obstacle of the principle of pacta tertiis will remain.[12]
Both the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement are very focused, the former concerning primarily the responsibilities of the flag state over vessels on the high seas, and the obligation to maintain a record of fishing vessels, while the 1995 UN Fish Stocks Agreement, which introduces a number of important innovations, is primarily directed towards straddling fish stocks and highly migratory fish stocks. The broadness of the Code of Conduct reflects the (hardly novel) reality that it is much easier to include general obligations in a non-binding Code than it is in binding Agreements.
The three instruments, although closely related, in fact have significantly different areas of application. The 1993 FAO Compliance Agreement states simply ‘this Agreement shall apply to all fishing vessels that are used or intended for fishing on the high seas’.[13] However, that has to be seen against two other limitations in the Agreement that concern the types of fishing vessels subject to the Agreement. First, the definition of fishing vessel found in the Agreement is a compromise for it is stated to cover ‘any vessel used or intended for use for the purposes of the commercial exploitation of living marine resources, including mother ships and any other vessels directly engaged in such fishing operations’.[14] This definition is intended to be restrictive inasmuch as it excludes support vessels not directly engaged in fishing operations, and it was a point of contention in the negotiations. The second limitation concerns the right of Parties to the Agreement to exempt from the application of the Agreement vessels of less than 24 metres in length entitled to fly their flag, though this is worded very carefully for the article continues, ‘unless the Party determines that such an exemption would undermine the object and purpose of’ the Agreement.[15] This rider is important for, without it, the Agreement could easily have been side-stepped in respect of a significant number of vessels operating on the high seas.[16] It also reflects the basic value running not only through the 1993 FAO Compliance Agreement but through all of the instruments under consideration that the conservation and sustainable use of the marine living resources is the overriding objective.
The 1995 UN Fish Stocks Agreement is more complicated as regards its application. On the one hand, as its full title clearly implies, it is intended to implement the provisions of the 1982 UN Convention relating to conservation and management of straddling fish stocks and highly migratory fish stocks. This is taken further in Article 2 which sets out the objective of the Agreement as being ‘to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of’ the 1982 UN Convention. Its application is further complicated inasmuch as in Article 3.1, it is stated to apply to ‘the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction’. There are, however, two important and explicit exceptions to this, which are referred to in the same paragraph, namely that Article 6 (which sets out the precautionary approach), and Article 7, (which concerns the need to ensure that conservation measures established for the high seas and those adopted for areas under national jurisdiction are to be compatible), shall also apply in areas under national jurisdiction. There is a further restraint imposed in respect of areas under national jurisdiction, namely that the general principles set out in Article 5 are also stated to apply mutatis mutandis. These general principles represent a significant advance on the principles underlying the fisheries provisions of the 1982 UN Convention, and include, for example, (in addition to specific principles on fisheries conservation and management), provisions on minimising pollution, protection of biodiversity in the marine environment, taking measures to prevent or eliminate overfishing and excess fishing capacity, promoting and conducting scientific research and the development of appropriate technologies in support of fishery conservation and management.
The Code of Conduct for Responsible Fisheries has the widest scope. Indeed, it is stated to be ‘global in scope, and is directed towards members and non-members of FAO, fishing entities, subregional, regional and global organizations, whether governmental or nongovernmental, and all persons concerned with the conservation of the fishery resources and management and development of fisheries, such as fishers, those engaged in processing and marketing of fishery products and other users of the aquatic environment in relation to fisheries.’[17] It continues: ‘It also covers the capture, processing, trade and marketing of fish and fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management.’[18]
Thus, the Code, by applying to all fisheries, covers fisheries on the high seas, within the EEZ, in territorial waters, as well as covering inland fisheries, even when they are in shared waters. This, when contrasted with the two binding instruments referred to, provides a striking contrast.
One aspect of the Code needs some further explanation, namely its relationship to the 1993 FAO Compliance Agreement. In the preamble to the 1993 FAO Compliance Agreement, it is stated: ‘Noting that this Agreement will form an integral part of the International Code of Conduct for Responsible Fishing called for in the Declaration of Cancun.’ This raised an interesting question given that the 1993 FAO Compliance Agreement is intended to be a binding legal instrument, while the Code of Conduct is intended to be, and indeed is stated to be, a voluntary instrument.[19] This was addressed in the following way in the Code:
The Code also contains provisions that may be or have already been given binding effect by means of other obligatory legal instruments amongst the Parties, such as the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993, which according to FAO Conference resolution 15/93, paragraph 3, forms an integral part of the Code.
This results in the text of the Compliance Agreement being incorporated into the voluntary Code. Its provisions could be utilised in the interpretation of the Code, for example by drawing on the detailed provisions of the Compliance Agreement as to the minimum contents of a record of fishing vessels. So far, no other binding international instrument has been incorporated into the Code of Conduct.
It is proposed now to turn to the substantive aspects of the Code of Conduct. The Code is a long document, which has both general and specific parts. It is structured so that it has a statement of general principles followed by articles that give specific content to the general principles. An underlying purpose of this structure was to enable the Code to be presented as discrete parts, for example the part on Aquaculture could be presented as a freestanding chapter, accompanied only by the general principles, and the introductory articles. To some extent, though not to the extent originally contemplated, this has been achieved in the publication of technical guidelines that have been published in support of the Code.
The General Principles are set out in Article 6. In effect, Article 6 provides the outline of the Code. To outline the entire Code would be a very big task, but it is useful to do so at least with respect to the General Principles. Even these principles are lengthy, containing at times many important qualifications and restrictions more suited to a binding legal instrument, and what follows is itself a brief summary of their main elements. These principles urge that states should:[20]
• conserve aquatic ecosystems, recognising that the right to fish carries with it an obligation to act in a responsible manner;
• promote the interests of food security, taking into account both present and future generations;
• prevent overfishing and excess capacity;
• base conservation and management decisions on the best scientific evidence available, taking into account traditional knowledge of the resources and their habitat;
• apply the precautionary approach;
• develop further selective and environmentally safe fishing gear, in order to maintain biodiversity
, minimise waste, catch of non-target species, etc.;
• maintain the nutritional value, quality and safety in fish and fish products;
• protect and rehabilitate critical fisheries habitats;
• ensure fisheries interests are accommodated in the multiple uses of the coastal zone and are integrated into coastal area management;
• ensure compliance with and enforcement of conservation and management measures and establish effective mechanisms to monitor and control activities of fishing vessels and fishing support vessels;
• exercise effective flag state control in order to ensure the proper application of the Code;
• cooperate through subregional, regional and global fisheries management organisations;
• ensure transparent and timely decision-making processes;
• conduct fish trade in accordance with the principles, rights, and obligations established in the World Trade Organization Agreement;
• cooperate to prevent disputes, and resolve them in a timely, peaceful and cooperative manner, including entering into provisional arrangements;
• promote awareness of responsible fisheries through education and training, as well as involving fishers and fish farmers in the policy formulation and implementation process;
• ensure that fish facilities and equipment are safe and healthy and that internationally agreed standards are met;
• protect the rights of fishers and fish workers, especially those engaged in subsistence, small-scale and subsistence and artisanal fisheries; and
• promote the diversification of income and diet through aquaculture.
At present, many states are examining how they can implement the Code. In the report of the Committee on Fisheries (COFI) held from 15 to 19 February 1999, several issues were noted that were obstacles to its implementation, in particular, because of the Code’s stated objective of applying to all persons involved in fisheries. One of the problems identified was the problem of disseminating it widely, and ensuring that it can reach the large number of illiterate fishers in many states. There have also been meetings to ‘adapt’ the Code to particular regions. In terms of the language of the Code itself, adaptation needs to be distinguished from its revision for which a procedure is set out.[21]
The Kyoto Declaration emanated from the International Conference on the Sustainable Contribution of Fisheries to Food Security. This document, from a legal point of view, links with the evolution, or the potential evolution, of legal norms, and it is linked to all the other instruments under consideration. Its focus is aimed much more at the problem of an increasing world population and the need to secure enough food for present and future generations and, in that context, it addresses the problem of fisheries as a source of food. The preamble recalled the relevant provisions of the 1982 UN Convention, the Declaration of Cancun, the UN Conference on Environment and Development, the 1993 FAO Compliance Agreement, the FAO Code of Conduct, and the 1995 UN Fish Stocks Agreement. It also recalled the decision on conservation and sustainable use of marine and coastal biological diversity adopted in November 1995 by the Conference of the Parties to the Convention on Biological Diversity, as well as the Rome Consensus on World Fisheries.[22]
Two soft law instruments have been under consideration at FAO, both of them Ministerial declarations. The first is the ‘Rome Consensus on World Fisheries’, which was adopted by the FAO Ministerial Conference on Fisheries, Rome 14–15 March, 1995 This document was adopted prior to the completion of the UN Fish Stocks Agreement and the adoption of the Code of Conduct for Responsible Fisheries.[23] It drew attention to a number of issues concerning fisheries, stressing in particular the need for an ecosystem approach to a number of issues. Its main function was to provide a high-level political forum for raising matters of global concern to fisheries.
The second, the ‘Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries’, adopted by the FAO Ministerial Meeting on Fisheries, Rome, 10–11 March, 1999, played a more important role in the development of action. It not only endorsed the need to bring into force the 1993 FAO Compliance Agreement and the UN Fish Stocks Agreement, as well as to give high priority to the implementation of the International Plans of Action for the Management of Fishing Capacity, for the Conservation and Management of Sharks and for reducing the Incidental Catch of Seabirds in Longline Fisheries, but it called for action to prevent IUU fishing, which is discussed further below.
These two instruments also have no precise legal status as such. Although negotiated in the context of FAO, they are not part of the formal decision-making process; thus they have no legal status akin to a decision of the FAO Council or of the Conference. In terms of the internal law of FAO, they were not, and were not intended to be, on the same level as the Code of Conduct, which was adopted as a resolution of the FAO Conference.[24] It would appear that it was not intended that they would be anything other than high-level political declarations.
There have been three International Plans of Action (IPOA) formulated at FAO, while a fourth (on IUU) is under consideration. The three that have so far been completed are: the International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries; the International Plan of Action for Conservation and Management of Sharks; and the International Plan of Action for the Management of Fishing Capacity. These three IPOAs were adopted by COFI at its 23rd session in February 1999, and endorsed by the FAO Council in June 1999.
Of these IPOA, only the one concerning capacity is relevant here. All three have the same structure and introductory and final clauses. The first two, concerning seabirds and sharks, are very specific in their focus. Over capacity had come to be recognised as one of the underlying causes of over fishing. It had been raised at COFI, following which FAO organised a Technical Working Group on the Management of Fishing Capacity in La Jolla, California from 15 to 18 April 1998, followed by an FAO Consultation from 26 to 30 October 1998. This IPOA, like the others referred to and which were drafted at the same time, is clearly drafted in non-mandatory language, using ‘should’ throughout, except where it refers to possible action being undertaken by FAO, where it uses ‘will’. Even there, it refers to action being ‘as and to the extent directed by its Conference’.[25]
Further, it was suggested that, when the IPOA on IUU was to be prepared, the IPOA on Capacity might be used as a blueprint. Accordingly, it has a part on Nature and Scope of the International Plan of Action, a part on objectives and principles,[26] a part on urgent actions, and a part on mechanisms to promote implementation. Several of the provisions found within it overlap with the provisions of earlier instruments, such as the Compliance Agreement.[27] In essence, the IPOA on capacity is a voluntary instrument which is applicable to all states and regional fisheries organisations whose fishers engage in capture fisheries. It sets out urgent actions and identifies mechanisms to promote implementation. The urgent actions include assessment and monitoring of fishing capacity and the preparation of, and implementation of, national plans, as well as the exchange of scientific and technical information on issues related to the management of fishing capacity.
It is still too early to assess the impact of these IPOAs. Part of the difficulty is that they are linked to other problems such as the ease with which vessels can be reflagged and chartered. However, they are clearly intended to be one of a number of approaches being adopted to tackle the overall problem of overfishing and the harmful side-effects of fishing.
This initiative almost certainly has the ugliest acronym in the area of fisheries, and probably well beyond it.
The terminology ‘Illegal, Unreported, Unregulated Fishing’ (IUU) is generally accepted as having been initiated in the context of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), and in particular at its 16th session. Here it was noted that one of the major problems facing CCAMLR was that ‘IUU catches in the Commission’s area exceeded reported fishing by a factor several times over and that more than half the vessels presumed to engage in IUU fishing fly the flags of CCAMLR member states’.[28] When the matter was taken up in FAO, at COFI in 15 to 19 February 1999, the mandate and scope of IUU was not precisely defined in any of its originating instruments. At COFI, it was stated that ‘The Committee was concerned about information indicating increases in illegal, unreported and unregulated fishing, including fishing vessels flying “flags of convenience”’.
Shortly afterwards, the FAO Ministerial meeting on Fisheries (Rome, 10 to 11 March 1999) adopted the Rome Declaration on the Code of Conduct for Responsible Fisheries, which in a preambular paragraph expressed concern at the growing amount of illegal, unregulated and unreported fishing activities being carried out, including vessels flying ‘flags of convenience’. To address the issue of IUU fishing and ‘flags of convenience’, the Ministers and Ministers’ representatives declared, in operative paragraph 12(j) that, without prejudice to the rights and obligations of states under international law, they:
(j) Will develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying ‘flags of convenience’, as discussed in paragraph 33 of Annex G of the Report of the Consultation on the Management of Fishing Capacity, Shark Fisheries and Incidental Catch of Seabirds in Longline Fisheries, which met in Rome in October 1998, through coordinated efforts by States, FAO, regional fishery management bodies and other relevant international agencies such as the International Maritime Organization (IMO), as provided in Article IV of the Code of Conduct…
The FAO Council reiterated this at its 116th session. Here it stated inter alia:
The Council noted that illegal, unauthorized and unreported fishing (IUU), including fishing by vessels flying 'flags of convenience', undermined conservation and management measures in fisheries. The Council urged that a global approach be taken by FAO to develop a strategy to address the problem of IUU, noting that this initiative should be carried forward through the development of an IPOA within the framework of the Code of Conduct.
The UN General Assembly took the matter further when it considered the matter in 1999.[29] Here it referred in the preamble to earlier resolutions regarding unauthorised fishing in zones of national jurisdiction, while in its operative paragraphs, it called on states not to permit vessels flying their flags to engage in fishing on the high seas without having effective control over their activities and to take specific measures to control fishing vessels flying their flags. It also called upon the International Maritime Organization (IMO), in co-operation with the FAO, regional fishery bodies and arrangements, and other relevant organisations, and in consultation with states and entities, to define the concept of the genuine link between the fishing vessel and the state in order to assist in the implementation of the UN Fish Stocks Agreement.
It will be apparent from a review of the background documents set out comprehensively in a paper prepared by D. Doulman[30 ] that the terms ‘illegal’, ‘unreported’ and ‘unregulated’ have not been employed with precision. Rather, they have been used to identify in a general way the nature of a continuing problem in the area of fisheries.
It is, however, possible to derive from these background documents certain elements in IUU fishing: the need for increased flag state control over the activities of its fishing vessels; the need to define the ‘genuine link’ in the context of flag state non-compliance by fishing vessels; the need to address fishing within areas under national jurisdiction, as well as on the high seas etc. Moreover, there are related issues, such as trade-related aspects of fishing, and the problem of fishing over capacity that are, however, not specifically mentioned in these documents[31] but which might be seen to provide possible solutions (in the case of trade) or to be an underlying cause of IUU fishing (in the case of over capacity).
It is not proposed here to attempt to define the component terms of ‘IUU’ fishing. It is, however, useful at least to address at the outset certain inherent questions that the words prompt. ‘Illegal’ fishing is probably the best understood of these terms, provided that it is taken to cover not just fishing without an authorisation, but also fishing contrary to the conditions of an otherwise valid authorisation. The greater imprecision may, however, seem to exist with respect to ‘Unreported’ and ‘Unregulated’.
Having regard to the history of the IUU fishing mandate and the experience of regional fisheries bodies, it is suggested that ‘unreported’ should not be confined to literally non-reporting, but should also include misreported and under-reported fishing (either intentionally or otherwise). It is also suggested that the term should be interpreted broadly for at least two other reasons. First, it is apparent from both the 1982 UN Convention and more recently from the 1995 UN Fish Stocks Agreement that the collection of data is recognised to be of fundamental importance. A particularly strong statement on this can be found in Annex I of the 1995 UN Fish Stocks Agreement.[32]
Second, it is apparent that the purpose of addressing ‘unreported’ fishing in the context of IUU is to achieve a situation where all fishing activity and related operations are reported more effectively, primarily in order to achieve more reliable stock assessments and a better understanding of the implications for fisheries management. To restrict the scope of the IUU initiative to literally unreported fishing might result in stunting any recommendations that can be made, and would appear to be inconsistent with the purpose underlying the IUU mandate to address the matter further in the context of an IPOA. Likewise, an appropriate understanding of ‘unregulated’ would mean not only that there is no management regime applying to a particular fishery (for example, on the high seas for a fishery not covered by any fisheries organisation or arrangement), but it would also mean that while there is in place a management regime, much of the fishing activity is not effectively controlled (that is, regulated). This could be said to include such situations with regard to fishing in areas under national jurisdiction, as well as on the high seas.
For example, it might be argued that, in the EEZ there is no ‘unregulated’ fishery in the sense that Part V of the 1982 UN Convention has provided a regime, and the great majority of coastal states have enacted laws and regulations governing their management. However, this would ignore the fact the UN General Assembly has already called for measures by the flag state to ensure that no vessel flying its flag shall fish in areas under the national jurisdiction of other states unless duly authorised to fish there, and that such fishing operations are carried out in accordance with the conditions under which it was authorised. This would suggest that the General Assembly did not intend the term ‘unregulated’ to be used in such a narrow sense. This is bolstered by the consideration that, in the case of the CCAMLR regime (in which context the IUU fishing terminology evolved and quite probably drew upon earlier General Assembly resolutions that had referred to the problems of unauthorised fishing), the area was ‘regulated’: the problem was both that the regulatory regime was not effectively applied by states parties to the regime, and was accentuated by the activities of vessels whose flag states were non-parties to CCAMLR.
One issue that is constantly referred to in these background documents is the lack of flag state control over the activities of vessels flying their flag on the high seas, and this is linked in many, but not all, instances to the problem of reflagging. To a large extent, this can be overcome by bringing into force the 1993 FAO Compliance Agreement, and the 1995 UN Fish Stocks Agreement. However, if these agreements are not widely and effectively implemented, the problems identified in the original IUU discussions would remain. Thus, it is necessary to consider the problem on at least two levels: first, the introduction of suitable regimes through the widespread adoption and entry into force of the two Agreements, and second, on the level of making the agreements effective in their operation.
It emerges from the examples given above concerning the EEZ and the call for more effective flag state control that the IUU fishing initiative is also intended to bring about a more effective use of existing powers. Thus, the starting point in any analysis of the scope of ‘IUU’ should proceed from the broad approach taken in the documents that have led to formulation of the IUU initiative.[33]
Against that background, there will be a need to focus attention, in the proposed IPOA, on those elements of IUU fishing which states, regional fisheries bodies and others have identified as priority tasks of particular concern. The resolutions and decisions of COFI, FAO Council, the General Assembly, and the approaches of the regional fisheries bodies will provide a starting point in evaluating and considering such priorities. Put another way, it will be necessary to focus less on a legally perfect definition of IUU at this stage, and more on identifying priorities and problems that still require solution.[34]
Following a meeting in Sydney from 15 to 19 May 2000 a preliminary draft IPOA was prepared. Although it can be expected that it will be subject to considerable change at a technical consultation scheduled to be held in Rome from 2 to 6 October 2000, it contains many innovative proposals. The solution to the problem of definition or scope adopted so far has not been to come up with a full definition,[35] rather, the document contains at an early stage an explanation of its nature and scope in the following terms:
The scope of the IUU fishing problem encompasses fishing and related activities, including:
• fishing in areas under national jurisdiction without the authorization of the coastal State;
• fishing which contravenes or undermines conservation and management;
• failure to effectively exercise the required jurisdiction or control over vessels and nationals;
• failure to fully and accurately meet fishery and fishing vessel data collection and reporting requirements.
This statement of scope side-steps the need for a more elaborate definition, especially as the phrase ‘fishing and related activities’ is used in many fisheries laws and in such contexts, it often includes activities such as: storing, buying, selling, transhipping, processing, or transporting fish, refuelling or supplying fishing vessels, or performing any other act in support of fishing, exporting any fish or fish product, as well as, including any act of agency, consultancy or similar services. It remains to be seen whether this phrase is left untouched or whether it becomes the subject of a tighter definition or whether there is an attempt made to restrict the scope.
The preliminary draft states the following key actions for implementation as including:
• Full and effective implementation of existing international instruments;
• Ratification, accession, acceptance or adoption of international instruments;
• Introduction and effective implementation of port State measures;
• Introduction and effective implementation of WTO-consistent trade-related measures;
• Establishing or strengthening global and regional international databases and other information systems;
• Strengthening regional fisheries management organizations and improving their effectiveness;
• Improving the effectiveness of the measures adopted by regional fisheries management organizations;
• States should, as appropriate, develop and implement national plans of action to prevent, deter and eliminate IUU fishing and related activities;
• Flag States should ensure effective control over fishing vessels flying their flag, in particular by maintaining and further developing the ability to oversee flagging, chartering and fishing operations;
• Flag States should co-operate with each other, coastal States, port States, market States and countries within whose jurisdiction owners or operators reside, through information exchange and other means to ensure compliance;
• Flag States should ensure that actions to reduce fishing capacity do not contribute to IUU fishing and related activities;
• States should take action to prevent natural or legal persons subject to their jurisdiction from engaging in IUU fishing and related activities;
• Strengthening national and regional institutional capacity and infrastructure through international agencies and organizations; and
• The special requirements of developing countries should be considered in accordance with the 1982 UN Convention and Article 5 of the Code of Conduct
The text of the IPOA-IUU is long and has much detail. Parts of it concern the nature and scope of the action plan, objectives and principles, key actions in combating IUU fishing. It also has parts for the implementation of measures to prevent, deter, and eliminate IUU fishing (which has parts on all state responsibilities, international instruments, national legislation, State control over nationals, stateless vessels, sanctions, monitoring, control and surveillance, national plans of action) flag state responsibilities, (vessel registration, record of fishing vessels, authorisation to fish, cooperation), port state measures, market-related measures, regional management fisheries organisations, special requirements of developing states, reporting, and the role of FAO. The text in its present form will almost certainly be subject to considerable editing and reduction. It was the outcome of a meeting of experts, and often, though by no means always, government officials who participate in such meetings as ‘experts’ will allow a text to go forward for discussion that contains more adventurous proposals than would come out of a governmental consultation.
Certain aspects are worthwhile highlighting,[36] inasmuch as they indicate what might be acceptable, or, even if not accepted, are becoming part of the legal debate in the fisheries sector. Probably the area most susceptible to being accepted is the possibility of port state controls over fishing vessels. The text adopted by the experts is forward looking in that it gives an indication of the matters port states might address in dealing with foreign fishing vessels.[37] For example, paragraph 47 of the preliminary draft states:
States should designate ports at which foreign flagged vessels may be permitted to enter and should ensure that these ports have the capacity to conduct inspections as follows:
(a) in the course of an inspection States should collect the following information and remit it to the flag State and, where appropriate, the relevant regional fisheries management organization:
i. the flag State of the vessel and identification details;
ii. name, nationality, and qualifications of the master and the fishing master;
iii. fishing gear;
iv. catch on board, including origin, species, form, and quantity; and
v. where appropriate, other information required by regional fisheries management organizations or other international agreements;
(b) if in the course of an inspection, it is found that there are reasonable grounds to suspect that the vessel has engaged in IUU fishing and related activities in areas beyond the jurisdiction of the port State, the port State should, in addition to such actions it may take consistent with international law, immediately report the matter to the flag State of the vessel and, where appropriate, the relevant regional fisheries management organization, as well as other action with the consent of, or upon the request of, the flag State;
A further measure referred to is in paragraph 50, which is based upon measures already adopted by some regional organisations, namely placing a responsibility on a vessel which flies the flag of a state that is not a party to regional or subregional conservation and management measures to demonstrate that any fish on board have been taken in accordance with applicable conservation and management measures.[38] This proposal is worded as follows:
States should develop within regional fisheries
management organizations port State measures building on the presumption that fishing vessels flying the flag of non-co-operating States sighted in the area of that particular organization are undermining the effectiveness of the organization’s conservation, management and enforcement measures and prohibit landings and transhipment of catch unless the vessel can establish that the catch was taken in a manner consistent with those measures.[39]
Finally, the document calls for a conference to address establishing bilateral or multilateral instruments such as memoranda of understanding on port state controls to deter IUU fishing and related activities. Some indication of the agenda is given here:
• the nature of data to be collected in the course of port State inspections and the purposes for which it may be used;
• measures to govern nationals;
• measures for and conditions governing the detention by port States of fishing vessels suspected of violating conservation and management measures of regional fisheries management organizations or national fishing laws or regulations;
• the extent to which existing agreements governing merchant and transport vessels may have application to fishing vessels;
• the feasibility of and provisions for reciprocal enforcement and inspection arrangements; and
• measures regarding monitoring and control of landings and transhipments.
The provisions on market related measures are also interesting as they attempt to provide some guidance in the murky area of the interaction between the 1982 UN Convention and the WTO Agreement, and in particular, what trade-related measures concerning so called IUU fishing and related activities might be acceptable. For example:
56. Trade-related measures to reduce or eliminate trade in fish and fish products derived from IUU fishing and related activities could include the adoption of catch documentation and certification requirements, as well as other appropriate measures such as import and export prohibitions. 57. In particular, species-specific trade-related measures may be necessary to reduce or eliminate the economic incentive for vessels to engage in IUU fishing and related activities.
There are many other provisions concerning market related measures that urge action to be undertaken by states, including, for example, urging states to support the implementation of trade-related measures adopted by regional fisheries management organisations, including certification and documentation requirements, to reduce or eliminate commerce in specific fish species and fish products derived from IUU fishing and related activities (paragraph 58). Some of the provisions, unusually, called for states to urge people and companies to voluntarily forego doing business with vessels engaged in fishing and related activities.
The final area of comment is that the document called for actions to be taken over ‘nationals’, or more fully, ‘natural or legal persons’ subject to their jurisdiction. Thus:
16. States should take effective measures, such as the creation of offences, to ensure that natural or legal persons subject to their jurisdiction do not engage in fishing and related activities, wherever they occur, that contravene or undermine applicable conservation and management measures or provisions adopted at a national, regional or global level. 17. All States should co-operate to identify natural or legal persons who are the operators or beneficial owners of vessels engaged in IUU fishing and related activities. All States having jurisdiction over such persons should do their utmost to ensure that no vessel owned or operated by those persons fishes in a manner which undermines or contravenes applicable conservation and management measures or provisions adopted at a national, regional or global level. 26. States whose nationals fish on the high seas in fisheries not regulated by a regional fisheries management organization, particularly new or exploratory fisheries, should fully implement their obligations under Part VII of the 1982 UN Convention to take measures with respect to their nationals as may be necessary for the conservation of the living resources of the high seas.
What is interesting about these provisions is that in them, and elsewhere, the term ‘nationals’ was used, for example as in paragraph 26, with a deliberate ambiguity. On the one hand, it was merely a call to use existing jurisdiction over nationals on the basis of the so-called active nationality principle of jurisdiction in international law. On the other hand, it was also intended to leave untouched the ambiguous reference in Articles 116 to 119 of the 1982 UN Convention to that term.[40]
The primary purpose of this paper has not been to explore the soft law instruments from the point of view of their legal impact. That said, some of the instruments referred to in this article could be drawn upon to support the evolution of certain principles or ideas. For example, there can be little doubt that the role of the precautionary approach, through its adoption in the Rio Declaration and Agenda 21 of UNCED, the Code of Conduct, and its inclusion in the UN Fish Stocks Agreement, has been strengthened by these soft law instruments. Indeed, the references to UNCED in the preambles of both the 1993 FAO Compliance Agreement and the UN Fish Stocks Agreement would provide at least a basis for drawing on certain of its principles in interpreting those agreements.
Likewise, the Code of Conduct, having been adopted by a formal resolution of the FAO Conference, could be considered as something to which a judicial body might turn for evidence of the possible development of new norms or principles in the area of the international regime of fisheries. Indeed, it should be remembered that the preamble to the UN Fish Stocks Agreement refers in the preamble to ‘responsible fishing’, which is presumably a reference to the Code. It has also been suggested that the Code could be considered to ‘reflect international minimum standards’ which may be applied by the International Tribunal for the Law of the Sea.[41]
The interest to a lawyer in these documents also lies in the fact that they often reveal the stages in the development of concepts and principles such as the precautionary approach. They can provide testing grounds for new ideas, or adaptations of old ideas to new areas, as seen with port state controls over foreign fishing vessels, and the possible use of nationality jurisdiction to control the activities of fishers.
One main defect of these instruments stems from the very fact that they are ‘voluntary’, in other words they have no legally binding force. The consequence is that it is sometimes very easy to include text in such documents in the knowledge that they will not have to be implemented. Shifting from the language of ‘should’ to ‘shall’ can have a stunning effect on drafting. Most of the IPOAs and the Code of Conduct have many clauses that would not have had a chance of surviving were it not for the fact they were placed in the context of voluntary or non-binding instruments. However, this defect is also their advantage.
Another major disadvantage of these soft law instruments is that there is a tendency toward repetition. This is especially noticeable in the calls for action, for example, to accede to certain international agreements such as the 1982 UN Convention, the 1993 FAO Compliance Agreement, and the 1995 UN Fish Stocks Agreement, or to implement the provisions of the Code of Conduct. Another constant call is for special attention to be paid to the needs of developing states. While these calls are understandable and laudable, they tend to sound hollow unless accompanied by specific actions to achieve these aims, such as the provision of technical assistance to facilitate the achievement of these goals.[42]
There is also the problem that there are possibly too many instruments affecting fishing that require implementation in one form or another. These range from binding instruments, such as the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement, through to the vast scope of the Code of Conduct. Few would disagree with the assertion that there is now a need to concentrate on giving effect to all these instruments and being cautious about creating new commitments.[43]
Nonetheless, there can be little doubt that these soft law instruments are viewed by most participants in the fisheries sector as having a role in the overall regime of fisheries, both on the high seas and in areas under national jurisdiction. At a time when the provisions of the 1982 UN Convention concerning high seas fishing are widely regarded as not having addressed all the main issues confronting fishing on the high seas, and with the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement not yet in force, and, in any event, still lacking a widespread participation, their importance, for all their imperfections, should not be underestimated.
OTHER AUTHORITIES
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1982) 1995 2, 5, 6, 7, 10, 11, 12, 14, 15, 16, 17, 19, 21, 22
Convention on Biological Diversity 1992 11
Convention on the Conservation of Antarctic Marine Living Resources 1982 13, 15
Convention on the Law of the Sea 1982 2
Declaration of Cancun 1992 2, 4, 5, 8, 10
International Code of Conduct for Responsible Fishing 1995 8
International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries 1998 11
International Plan of Action for the Management of Fishing Capacity 1998 12
International Plans of Action on Illegal, Unreported and Unregulated Fishing 2000 2, 12, 13, 18
Rio Declaration on the Environment and Development 1992 2, 4, 5, 21
Rome Consensus on World Fisheries 1995 11
Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries 1999 11
[∗] Legal Office, Food and Agriculture Organization (FAO), Rome. The views expressed in this article are personal and do not necessarily reflect the views of FAO.
[1] Eg, the care taken in the use of sensitive terms such as ‘fishing entities’ to refer to the problem of Taiwan Province of China.
[2] For a recent discussion of soft law, see H Hillgenberg, ‘Soft Law and the Legal Adviser’, Collection of Essays by Legal Advisers of States, Legal Advisers of International Organisations and Practitioners in the Field of International Law (1999). See also generally, D Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (2000).
[3] Hereafter referred to as the 1982 UN Convention. Likewise, the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas will be referred to as the 1993 FAO Compliance Agreement, and the Agreement for the Implementation of the Provisions of the UN 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 will be referred to as the 1995 UN Fish Stocks Agreement. References to the UN Conferences on the Law of the Sea will be UNCLOS I, II, and III.
[4] It would be incomplete not to refer to a number of regional agreements and arrangements such as the Convention on Southern Bluefin Tuna and the measures being introduced by regional fisheries bodies. For a detailed review of fisheries bodies, see G Lugten, ‘A Review of Measures Taken by Regional Marine Fisheries Bodies to Address Contemporary Fisheries Issues’, FAO Fisheries Circular No 940; J Swan, ‘The Role of National Fisheries Administrations and Regional Fisheries Bodies (RFBs) in Adopting and Implementing Measures to Combat IUU Fishing’ (paper AUS:IUU/2000/10) <http://www.affa.gov.au/ecoiuuf/papers.html> .
[5] This is an initiative principally that of the Australian government, which raised the matter at the Committee on Fisheries (15 to 19 February 1999) and has subsequently provided funding for an expert consultation and a technical consultation, discussed further below under IPOA-IUU.
[6] See in particular, GA Res 44/225 and 46/215.
[7] For a discussion of these resolutions, see W T Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994) 100 et seq. See also the recent, very detailed analysis of this subject by D Rothwell, ‘The General Assembly Ban on Driftnet Fishing’ in Shelton above n 2, 121. For an agreement which seeks to prohibit driftnet fishing in a region, see the Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, 24 November, 1989
[8] The term ‘fishing’ was originally intended to be used in the title, and it was referred to in this way in the preamble to the 1993 FAO Compliance Agreement. However, in the negotiations on the Code, it was changed to ‘fisheries’ in order to emphasise that it applied to the sector as a whole and not just to fishing. The decision to make this change was also influenced by the fact that there was no satisfactory way of translating the term fishing into Spanish without some loss of meaning.
[9] Chapter 17[53] states: ‘States should take effective action, consistent with international law, to deter reflagging of fishing vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas.’
[10] FAO Council report 102nd session, Rome, 9 to 20 November, 1992 [58]. It was on the basis of this statement that the negotiations for the FAO Compliance Agreement were placed on the so called ‘fast track’.
[11] The follow through from UNCED to the General Assembly adoption of a resolution (47/192 of 22 December, 1992) is well set out in the introductory note to the 1995 UN Fish Stocks Agreement in ‘International Fisheries: instruments with Index’. Here the closeness of the language used at UNCED and the mandate given to the meeting which eventually led to the 1995 UN Fish Stocks Agreement is very clear.
[12] For a very comprehensive and useful analysis of this, see E Francks, ‘Pacta Tertiis and the Agreement for the Implementation of the Provisions of the United Nations 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’ FAO Legal Papers On-Line No 8 June 2000 <http://www.fao.org/Legal/default.htm> .
[13] Art II Application.
[14] Art I Definitions. It should be noted however that the preamble also made a reference to the need for states to control vessels engaged in the transshipment of fish.
[15] Further, an exemption may not be granted where the bordering coastal states have not declared exclusive economic zones or equivalent zones, and in which they ‘may agree either directly or through appropriate regional fisheries organisations, to establish a minimum length of fishing vessels below which this Agreement shall not apply in respect of fishing vessels flying the flag of any such coastal state and operating exclusively in such fishing region’ (art II.3). In essence, this relates to the Mediterranean. The General Commission for Fisheries in the Mediterranean has acted with respect to this matter: Resolution 95/2, Alicante meeting, May 1995, where a minimum length limit of 15 metres was set. In addition, the exemption does not remove the obligation of the party to take such measures as may be necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures (art III.1), and it still leaves the party with the obligation to provide information to FAO concerning an exemption it has granted, the number and type of fishing vessels involved and the geographical area in which such fishing vessels operate (art VI.7).
[16] Because length itself is an elusive criterion, the Agreement adopted, in respect of vessels built after 18 July 1982, a technical definition of length taken from the Torremolinos Convention: see art I of the FAO Compliance Agreement.
[17] Art I (The Nature and Scope of the Code).
[18] Although recreational fisheries is not specifically mentioned in this clause, it was clearly also intended to be covered, as the ‘Introduction’ to the Code refers to the role of fisheries in ‘recreation’.
[19] Art 1.1.
[20] It should be noted that ‘should’ is used throughout the Code of Conduct, consistently with its status as a voluntary instrument.
[21] See Art 4.3. For a discussion of the introductory articles of the Code of Conduct; see W R Edeson, ‘The Code of Conduct for Responsible Fisheries: An Introduction’ (1996) 11 The International Journal of Marine and Coastal Law 233. For a discussion of the implementation of the Code of Conduct, see W Edeson, ‘Towards Long-term Sustainable Use: Some Recent Developments in the Legal Regime of Fisheries’ in A Boyle and D Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (1999) 202.
[22] <http://www.fao.org/fi/agreem/kyoto/H4F.asp#> .
[23] For the text, see <http://www.fao.org/fi/agreem/consensu/cone.asp> .
[24] However, the resolution adopting the Code of Conduct did refer to the Ministerial declaration. See preambular paragraph resolution 4/95 FAO Conference. in the case of the 1999 Ministerial Declaration on the Code of Conduct, the Council commended the efforts of the Director-General in convening the ministerial meeting.
[25] The same point is applicable to the other two instruments concerning seabirds and sharks.
[26] This part addresses a number of factors: participation, phased implementation, holistic approach, conservation, priority, new technologies, mobility, and transparency. These are repeated in the IPOA-IUU.
[27] Thus [16]–[21] largely cover the area already addressed in that Agreement, except that the paragraphs contemplate action being taken even if a state is not a party to that Agreement, while other provisions call for the entry into force of recent agreements such as the Compliance agreement and the 1995 UN Fish Stocks Agreement.
[28] For the full versions see D Doulman, ‘Illegal, Unreported and Unregulated Fishing: A mandate for an International Plan of Action’ <http://www.affa.gov.au/ecoiuuf/papers.html> . AUS: IUU/2000/4. The term ‘unauthorised’ was already being used in General Assembly resolutions concerning fishing.
[29] GA Res 54/32.
[30 ] Illegal, Unreported, and Unregulated Fishing: Mandate for an International Plan of Action AUS above n 28.
[31] An ad hoc Workshop held at the request of the Asia-Pacific Economic Cooperation (APEC) Fisheries Working Group (FWG), (Kesen-numa, Japan, 13–15 July 1999) noted, with respect to the IUU fishing agenda item, that it was agreed, inter alia, that further consultation among Member Economies would be required on this subject. In addition, a list of topics was proposed for consideration by the 2000 follow-up meetings planned by Australia and FAO. These topics included landing and port call prohibitions, international inspection schemes, inputs and output controls (for fisheries management), trade measures, eco-labelling, administration of fishing vessel registries, improved vessel monitoring systems, information exchange on ratification of the Compliance Agreement and study on the provisions of IMO regarding the regulation of open registry vessels. It was envisaged by the workshop that these topics would be subject areas to be addressed within the IPOA that would subsequently be elaborated.
[32] Note the chapeau to art 1 of annex I of the 1995 UN Fish Stocks Agreement: ‘The timely collection, compilation and analysis of data are fundamental to the effective conservation and management of straddling fish stocks and highly migratory fish stocks.’ See further, W Edeson, ‘Legal Aspects of the Collection of Fisheries Data’ (December 1999) FAO Fisheries Circular No 953.
[33] It might be added that when the Ministerial meeting addressed the matter, it referred to the need to address ‘all forms of’ IUU fishing. Further, the placing of the initiative on IUU within the context of the Code of Conduct for Responsible Fisheries lends support to a broad interpretation being given to the scope of the initiative.
[34] In the Code of Conduct for Responsible Fisheries, definitions were to a very large extent avoided and specific provisions were absorbed into individual articles as required. The only time a definition was used was in art 1.4: ‘In this Code, the reference to States includes the European Community in matters within its competence, and the term fisheries applies equally to capture fisheries and aquaculture.’
[35] However, the document does contain definitions of regional, and regional fisheries management organisation, as well as adopting shorthand references to the 1982 UN Convention, the 1995 UN Fish Stocks Agreement, and the FAO Compliance Agreement.
[36] It must be emphasised that there is much of general interest in the provisions as they stand, and what follows is very selective.
[37] The basis for the work of the meeting was a paper prepared by T Loebach, ‘Measures to be Adopted by the Port State in Combating IUU Fishing’ AUS:IUU/2000/15 <http://www.affa.gov.au/ecoiuuf/papers.html> .
[38] See Edeson, above n 21, 196.
[39] There are of course limits as to how far a state should go in formulating such presumptions. The 1995 UN Fish Stocks Agreement in art 23.3 refers to ‘where it has been established that the catch has been taken in a manner which undermines the effectiveness’ of’ such conservation measures.
[40] For a discussion of this term in the context of the high seas provisions of the 1982 UN Convention, see W Edeson, ‘Tools to address IUU Fishing: the Current Legal Situation’ [34]. AUS: IUU/2000/8 <http://www.affa.gov.au/ecoiuuf/papers.html> .
[41] R Wolfrum, ‘The Role of the International Tribunal for the Law of the Sea’, Paper to be published in the forthcoming proceedings of the Conference on Current Fisheries Issues and the Food and Agriculture Organisation of the United Nations’, organised by the Center for Oceans Law and Policy, University of Virginia, and FAO, Rome (16–17 March 2000).
[42] Norway has been one of few states to provide assistance to achieve these goals. For a discussion of its contributions, see W Edeson, ‘Implementing the 1982 UN Convention, the FAO Compliance Agreement, and the UN Fish Stocks Agreement’ ibid.
[43] For a discussion that implicitly supports this see the comments by D Balton ‘Making The New Rules Work: Implementation of the Global Fisheries Instruments’ ibid.
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