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AGREEMENT RELATING TO THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS

Circumstances Surrounding International Discussion

Management of straddling fish stocks (SFS) (12) and highly migratory fish stocks (HMFS) (13) has remained elusive. These species exist both within and beyond states' exclusive economic zones (EEZs). (14) Since fish are generally exploited wherever economically feasible throughout their range, management efforts within EEZs and in international waters must be complementary. Prior to recent negotiations, management efforts in these two zones often have been incompatible. Excessive fishery exploitation in international waters is one factor frustrating sustainable use management efforts within states' EEZs. The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks convened April 19, 1993, in New York City to begin work on an international convention to address these concerns.

This Conference was an outgrowth of a series of international declarations concerning the necessity of addressing the conservation and management of SFS and HMFS. As early as 1982, UNCLOS recognized that states fishing in international waters needed to seek agreement on the management of SFS (Article 63) and HMFS (Article 64). For a decade, the issues went unaddressed, intensifying the severity of the situation. The 1992 Declaration of Cancun urged the FAO to consider the issues plaguing fisheries operating in international waters, including the overexploitation of SFS and HMFS. Additionally, UNCED avowed in 1992 that:

States should take effective action, including bilateral and multilateral cooperation, where appropriate at the subregional, regional and global levels, to ensure that high seas fisheries are managed in accordance with the provision of the United Nations Convention on the Law of the Sea. In particular, they should:

Convene, as soon as possible, an intergovernmental conference under United Nations auspices, taking into account relevant activities at the subregional, regional and global levels, with a view to promoting effective implementation of the provisions of the United Nations Law of the Sea on straddling stocks and highly migratory stocks. The conference, drawing, inter alia, on scientific and technical studies by FAO, should identify and assess existing problems related to the conservation and management of such fish stocks, and consider means of improving cooperation on fisheries among states, and formulate appropriate recommendations. The work and the results of the conference should be fully consistent with the provisions of UNCLOS, in particular the rights and obligations of coastal states and states fishing on the high seas. (15)

The United Nations General Assembly adopted Resolution No. 47/192 on December 22, 1992, establishing the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks.

The Conference consisted of six sessions over a period of two years. The last session, held July 24 - August 4, 1995, resulted in 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. The Agreement was opened for signature on December 4, 1995, and will remain open for 12 months. Twenty-six nations, including the United States, signed the Agreement of the day it was opened for signature.(16) The Agreement will enter into force 30 days after the United Nations Secretary-General receives the thirtieth instrument of ratification, acceptance, approval, or accession.

Provisions of the Convention

The initial goals for the United Nations Conference included identifying and assessing existing problems related to the conservation and management of SFS and HMFS, considering means of improving fishery cooperation among states, and formulating appropriate recommendations. Over the course of negotiations, support grew for creating a binding agreement. The Agreement, reached after fourteen weeks of negotiations, covers general provisions (Articles 1-4); conservation and management measures (Articles 6-7); mechanisms for international cooperation (Articles 8-16); non-members and non-participants (Articles 17 and 33); duties of flag states (Article 18); compliance and enforcement (Articles 19-23); requirements of developing states (Articles 24-26); dispute settlement (Articles 27-32); and additional (Articles 34-36) and final provisions (Articles 37-50).

General Provisions

The objective of the Agreement, expressed in Article 2, calls for the implementation of the relevant provisions of UNCLOS to assure long-term conservation and sustainable use of SFS and HMFS. The Agreement aims to preserve and increase the sovereignty of coastal states. The Agreement only applies to the conservation and management of SFS and HMFS beyond areas of national jurisdiction, except as provided in Articles 6 and 7.

Conservation and Management Measures

To ensure sustainable fisheries in international waters, the Agreement decrees that states should act to promote optimum utilization. (17) Management schemes should be based on the best scientific information available to maintain a maximum sustainable yield (18) considering environmental and economic factors. The Agreement calls for considering holistic ecosystem preservation and, under those provisions, minimizing pollution, waste, and bycatch. It also espouses protecting marine biodiversity and eliminating overfishing and excess capacity. The Agreement requires states to have their commercial fishing vessels accurately collect and share data. (19) States must also promote scientific research and technological advances designed to help achieve the Agreement's objective. Under this Agreement, states assume a much greater responsibility for effective monitoring, control, and surveillance of fishing to implement and enforce conservation and management efforts in international waters.

The Agreement mandates a precautionary approach in designing and implementing conservation and management schemes, encouraging states to act judiciously and conservatively when information is uncertain, unreliable, or inadequate. However, the absence of adequate scientific information is not to be used as a reason for postponing or failing to take conservation and management measures. The precautionary approach encourages management organizations to err on the side of prudence. As opposed to traditional maximum sustainable yield management methods, the inherent flexibility of this approach provides numerous options whereby states may choose to adjust catch quotas in light of new scientific information or to ensure that fishing does not exacerbate damage arising from natural phenomena. (20)

Article 7 of the Agreement emphasizes the need for compatible conservation and management measures across jurisdictions with regard to SFS and HMFS. Complementary efforts to conserve these stocks within coastal state EEZs and adjacent international waters are essential. If compatible measures cannot be reached, the Agreement provides that states may invoke dispute settlement procedures. Until states resolve matters, they must enter into practical provisional agreements that protect the resource by preventing excessive exploitation.

Mechanisms for Internationalation Cooperation

The Agreement calls for states to cooperate in establishing regional and subregional fishery management organizations to ensure SFS and HMFS are preserved. When creating new management organizations, their relationship to existing fishery management organizations must be defined. Within a new organization, fishery access is to be limited to member states of any existing regional organization and any additional states that participate in the new arrangements. States must agree on the managed stocks and areas, and also determine how they will obtain scientific advice. (21) Article 10 of the Agreement outlines the need for consensus on issues such as participatory rights, allowable catch allocation, data collection standards, and decision-making procedures. (22) Organizations should distribute participatory rights based on the condition of fish stocks, the respective interests and fishing patterns of new and existing member states, (23) the needs of communities dependent on fishing the stocks, and the interests of developing states. The Agreement aims to assure that the activities of regional and subregional fishery management organizations are public knowledge. Entering into the Agreement obligates states to cooperate in strengthening existing organizations and ensuring that their fishing vessels collect data to bolster scientific research. Pursuant to Article 7, Articles 15 and 16 call for states fishing in enclosed or semi-enclosed seas to cooperate with the relevant coastal states in coordinating sustainable management efforts. (24)

Non-Members and Non-Participants

The Agreement seeks cooperation between member and participant states and non-member and non-participant states to deter activities that might undermine conservation and management efforts. States not party to the regional or subregional fishery management organizations must cooperate with the conservation and management efforts of these organizations. Vessels flying the flag of non-members and non-participants cannot or should not fish for SFS and HMFS in areas covered by organized management efforts. Enforcement against non-member states that fail to comply with the strictures of the Agreement parallels disciplinary action proposed for non-compliant member states.

Duties of Flag States

Flag states must ensure that fishing vessels flying their flag comply with the conservation and management strictures established by regional and subregional management organizations. The responsibilities of flag states include licensing fishing vessels that operate in international waters, prohibiting fishing by unlicensed vessels in international waters, and ensuring that vessels flying their flag do not conduct unauthorized fishing within areas of national jurisdiction. The SFS/HMFS Agreement requires that flag states comply with the Reflagging Agreement. Article 18 also reiterates the need for cooperative monitoring, control, and surveillance of all fishing vessels operating in international waters. Most international agreements implemented prior to the SFS/HMFS Agreement require states to monitor and control vessels only within waters under their jurisdiction. The Reflagging Agreement and the SFS/HMFS Agreement represent initial efforts to extend similar obligations into international waters. This portion of the SFS/HMFS Agreement duplicates provisions of the Reflagging Agreement to reinforce its intent. Duplication of the essential conditions binds states that ratify the HMFS/SFS Convention, but may not have ratified the Reflagging Agreement, to the reflagging stipulations.

Compliance and Enforcement

The international cooperation of flag and port states participating in regional and subregional fishery management organizations is necessary to ensure compliance and enforcement of this Agreement. Flag states must enforce the provisions of the SFS/HMFS Agreement independent of any violation's location. It is the responsibility of the flag state to conduct a full investigation of all alleged infractions within 3 days of any incident. Flag states must provide expeditious judicial proceedings and levy sanctions of adequate severity. When fishing vessels flying their flag fall subject to inquiry, flag states must ensure that their vessels comply completely with the requests of the investigating authority. Flag states are to prevent vessels with outstanding sanctions from fishing in international waters. To ensure the effectiveness of subregional, regional, and global management schemes, port states may prohibit landings and transshipments if the catch has been taken in a manner that undermines conservation and management efforts. Flag and port states must identify and report violating vessels to the regional management organizations. Together, flag and port states are authorized to take any action in accordance with international law that might deter vessels from acting illegally. To protect the interests of fishing vessels as well as those of the investigating authority, the basic procedures for boarding and inspection are outlined.

Requirements of Developing States

Optimally, the Agreement seeks to encompass all states involved in the exploitation of SFS and HMFS. It acknowledges the need to support and protect the interests of developing states and, thus, obligates developed states to incorporate developing states as participants in fisheries conducted in international waters as well as their management organizations. Recognizing the burden that implementation of the SFS/HMFS may impose on developing states, the Agreement requires cooperation by developed states to enhance the ability of developing states to conserve and manage fish stocks. Developed states are to provide funds to assist developing states in implementing the SFS/HMFS Agreement, to aid efforts by developing states to ensure compliance with the Agreement, and to permit research participation by scientists from developing states.

Dispute Settlement

Communication and cooperation represent the desired means for settling disputes between and among member states. The Agreement encourages states to avoid disputes, but to institute expeditious dispute-settlement procedures if needed. Pending the settlement of a dispute, Parties are encouraged to adopt practical provisional arrangements. In technical disputes, the Agreement provides for ad hoc panels to promote resolution. Part XV (Settlement of Disputes) of UNCLOS applies to all disputes between states party to the SFS/HMFS Agreement, regardless of whether the states are participants in UNCLOS.

Additional and Final Provisions

When establishing regional conservation and management organizations, states can modify provisions of the Agreement provided that they do not detract from the effective execution of the Agreement's objective and purpose. The states party to the Agreement must fulfill their obligations in good faith. To ensure that the Agreement meets its objective of securing the conservation and management of SFS and HMFS, a review conference is scheduled four years after the Agreement enters into force.

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