2. RECENT DEVELOPMENTS IN OCEAN LAW AND POLICY ABA ANNUAL MEETING SAN FRANCISCO August 11, 2007 INTERNATIONAL LAW OFFICES OF SAN DIEGO PETER H. FLOURNOY www.international-law-offices.com

3. LANGUAGE FISHERIES – ANADROMOUS, CATADROMOUS, PELAGIC, GROUNDFISH, COASTAL PELAGIC, HIGHLY MIGRATORY SPECIES, STRADDLING STOCKS, REEF FISH, INVERTEBRATES FISHERIES – ANADROMOUS, CATADROMOUS, PELAGIC, GROUNDFISH, COASTAL PELAGIC, HIGHLY MIGRATORY SPECIES, STRADDLING STOCKS, REEF FISH, INVERTEBRATES GEAR TYPES – TRAWL, PURSE SEINE, LONG LINE, POLE AND LINE (HOOK AND LINE), TROLL, DRIFT NET, FISH TRAP, CYANIDE, DYNAMITE GEAR TYPES – TRAWL, PURSE SEINE, LONG LINE, POLE AND LINE (HOOK AND LINE), TROLL, DRIFT NET, FISH TRAP, CYANIDE, DYNAMITE ORGANIZATIONS – COUNCILS, RFMOs ORGANIZATIONS – COUNCILS, RFMOs

4. FISHERY MANAGEMENT COUNCILS Magnuson- Stevens Conservation and Management Act of 1976, as amended through December of 2006. –8 Fishery Management Councils New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf, Pacific, North Pacific, Western Pacific New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf, Pacific, North Pacific, Western Pacific Council Members – Federal, State, Tribal, Public Council Members – Federal, State, Tribal, Public Advisory Panels – often by species/gear type Advisory Panels – often by species/gear type Scientific and Statistical Committee Scientific and Statistical Committee FMPs – Fishery Management Plans FMPs – Fishery Management Plans

5. FISHERY MANAGEMENT COUNCILS Types of Fisheries “managed” Types of Fisheries “managed” –Anadromous – Salmon – bilateral and multilateral –Coastal Pelagic – Squid – unilateral and access agreements GIFAs –“Shared” or Straddling Stocks – Pacific Whiting – bilateral, Halibut -- multilateral –Highly Migratory Species – Tuna and Swordfish - multilateral

6. CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOs History of HMS Jurisdiction and Magnuson Act Requirements History of HMS Jurisdiction and Magnuson Act Requirements –When MSAct passed in 1976 to set up the equivalent of EEZs U.S. did not recognize any country’s jurisdiction over HMS in their zones –Provision for State Department slot on Councils was to advise on GIFAs –1992 Recognition of Other Countries’ Jurisdiction With Critical Caveat that HMS Must be Managed Multilaterally by RFMOs

7. CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOs Amendment to Sections 303(a) and 302(h) requiring Councils to Set “annual catch limits” for all species included in their FMPs including HMS Amendment to Sections 303(a) and 302(h) requiring Councils to Set “annual catch limits” for all species included in their FMPs including HMS NOAA-NMFS Guidance States Discards and “all” fishing mortality Including Rec and Sport must Be included – Lack of Data NOAA-NMFS Guidance States Discards and “all” fishing mortality Including Rec and Sport must Be included – Lack of Data

8. CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOs “overfishing occurring” “overfishing occurring” “overfished” “overfished” Prior Interpretation – Council Had to Do an Amendment to the FMP – 2 year process Prior Interpretation – Council Had to Do an Amendment to the FMP – 2 year process Current Interpretation After Amendment to Section 304 by adding 304 (i) (or (j)) is “ develop recommendations for domestic regulations to address the relative impact of fishing vessels of the US on the stock” Current Interpretation After Amendment to Section 304 by adding 304 (i) (or (j)) is “ develop recommendations for domestic regulations to address the relative impact of fishing vessels of the US on the stock”

9. REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS North Pacific Anadromous Fish Commission North Pacific Anadromous Fish Commission International Pacific Halibut Commission International Pacific Halibut Commission Antarctic Living Marine Resources Antarctic Living Marine Resources Tuna (HMS) RFMOs Tuna (HMS) RFMOs

10. TUNA (HMS) RFMOs IATTC -Inter-American Tropical Tuna Commission IATTC -Inter-American Tropical Tuna Commission IOTC – Indian Ocean Tuna Commission IOTC – Indian Ocean Tuna Commission ICCAT – International Commission for the Conservation of Atlantic Tunas ICCAT – International Commission for the Conservation of Atlantic Tunas WCPFC – Western and Central Pacific Fisheries Commission WCPFC – Western and Central Pacific Fisheries Commission CCSBT – Commission for the Conservation of Southern Blue fin Tuna CCSBT – Commission for the Conservation of Southern Blue fin Tuna

11. KOBE, JAPAN January 22-26, 2007 KOBE, JAPAN January 22-26, 2007 Share and Co-ordinate Data And Stock Assessments Share and Co-ordinate Data And Stock Assessments Work Collectively to End IUU (Illegal, Unregulated, Unreported) Fishing Work Collectively to End IUU (Illegal, Unregulated, Unreported) Fishing Develop Procedures for Allocating Fishing Opportunities Develop Procedures for Allocating Fishing Opportunities Capacity Controls Capacity Controls Establish Decision Making Processes Establish Decision Making Processes Promotion of Compliance With RFMO Resolutions Promotion of Compliance With RFMO Resolutions Development of Monitoring, Control, and Surveillance (MCS) Measures Development of Monitoring, Control, and Surveillance (MCS) Measures Monitor Catches from Vessels to Market Monitor Catches from Vessels to Market RFMO Performance Review RFMO Performance Review Ecosystem Approach to Fisheries Management Ecosystem Approach to Fisheries Management Coordination of meetings Coordination of meetings

12. 1982 U.N. LAW OF THE SEA CONVENTION In Force Since November 16, 1994 In Force Since November 16, 1994 Ratified by 155 Countries Ratified by 155 Countries Not Ratified By the United States Not Ratified By the United States Priority of Bush Administration Since The Beginning Priority of Bush Administration Since The Beginning Passed Unanimously By Senate Foreign Relations Committee In 2006 Passed Unanimously By Senate Foreign Relations Committee In 2006 Better Chance With Absence of Amb. Kilpatrick Better Chance With Absence of Amb. Kilpatrick and Senator Helms and Senator Helms Prognosis Not Good Prognosis Not Good

13. U.N. HIGHLY MIGRATORY SPECIES AND STRADDLING FISH STOCKS AGREEMENT In Force Since 11 December 2001 In Force Since 11 December 2001 Ratified by 67 Countries (UNCLOS – 155) Ratified by 67 Countries (UNCLOS – 155) Ratified by United States Ratified by United States Not Ratified by Japan, Korea, China Not Ratified by Japan, Korea, China July 2006 Review Conference July 2006 Review Conference

14. WESTERN AND CENTRAL PACIFIC FISHERIES CONVENTION Enabling Legislation – Part of MS Act Amendments Enabling Legislation – Part of MS Act Amendments Five U.S. Commissioners Five U.S. Commissioners –U.S. “industry” –WPFMC –PFMC –Federal – PIRO Director –Public Interest = ENGO?

15. WCPFC WCPFC –Advisory Committee Guam, American Samoa, Northern Marianas Guam, American Samoa, Northern Marianas Payment of out of pocket expenses Payment of out of pocket expenses Attendance at U.S. Commissioner’s Meetings Attendance at U.S. Commissioner’s Meetings Attendance at Government to Government Meetings (?) Attendance at Government to Government Meetings (?) Administrative Procedures Act does not apply Administrative Procedures Act does not apply

16. ANTIGUA CONVENTION (Update of IATTC) Ratified by U.S. Ratified by U.S. Ratified by 8 Countries Ratified by 8 Countries –Belize, Korea, El Salvador, France, Mexico, Nicaragua, Panama, E.U. Entry Into Force Likely by 2008 Entry Into Force Likely by 2008 Implementing Legislation Languishes Implementing Legislation Languishes Current Members of IATTC Current Members of IATTC –Costa Rica, France, Ecuador, El Salvador, Guatemala, Japan, Korea, Mexico, Nicaragua, Panama, Peru, Spain, U.S., Venezuela, Vanuatu

17. NEW AMENDMENT TO PUNISH IUU FISHING Definition by NMFS – overly broad Definition by NMFS – overly broad NMFS Guidance – check out the web-sites NMFS Guidance – check out the web-sites NMFS Presentation NMFS Presentation Recent Actions (Bud Walsh covered) Recent Actions (Bud Walsh covered)

18. INTERNATIONAL AGREEMENTS CONCERNING LIVING MARINE RESOURCES OF INTEREST TO NOAA FISHERIES ATLANTIC OCEAN International Convention for the Conservation of Atlantic Tunas (Basic Instrument for the International Commission for the Conservation of Atlantic Tunas -- ICCAT) Convention for the Conservation of Salmon in the North Atlantic Ocean (Basic Instrument for the North Atlantic Salmon Conservation Organization -- NASCO) Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (Basic Instrument for the Northwest Atlantic Fisheries Organization -- NAFO)

19. Cont. PACIFIC OCEAN Agreement on the International Dolphin Conservation Program (AIDCP) Convention for the Establishment of an Inter-American Tropical Tuna Commission (IATTC) Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Basic Instrument for the International Pacific Halibut Commission -- IPHC) Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (Basic Instrument for the North Pacific Anadromous Fish Commission – NPAFC) Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon (Basic Instrument for the Pacific Salmon Commission – PSC)

20. PACIFIC (CONT.) Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (South Pacific Tuna Treaty -- SPTT) Multilateral High-level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific (Western and Central Pacific Fisheries Convention-WCPFC)

21. SOUTHERN OCEAN Convention for the Conservation of Antarctic Marine Living Resources (Basic Instrument for the Commission for the Conservation of Antarctic Marine Living Resources – CCAMLR) Convention for the Conservation of Antarctic Seals (CCAS)

22. AND ……………………………… WESTERN HEMISPHERE Inter-American Convention (IAC) for the Protection and Conservation of Sea Turtles GREAT LAKES Convention on Great Lakes Fisheries Between the United States and Canada (Basic Instrument for the Great Lakes Fishery Commission – GLFC) GLOBAL Agreement on the Conservation of Albatrosses and Petrels (ACAP) Convention on Biological Diversity (CBD) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) International Whaling Commission (IWC)

23. USEFUL WEBSITES http://www.usunnewyork.usmission.gov/index.htm U.S. Mission to the U.N. http://www.usunnewyork.usmission.gov/index.htm http://www.usunnewyork.usmission.gov/index.htm National Marine Fisheries Service http://www.nmfs.noaa.gov/ http://www.foia.state.gov/alphalisting State Department Telephone Directory http://www.foia.state.gov/alphalisting http://www.foia.state.gov/alphalisting http://wwwnmfs.noaa.gov/msa2007/ NOAA-NMFS Magnuson Act Amendments http://wwwnmfs.noaa.gov/msa2007/ http://wwwnmfs.noaa.gov/msa2007/ http://www.oceancommission.gov/ U.S. Commission on Ocean Policy http://www.oceancommission.gov/ http://www.oceancommission.gov/ NOAA Office of International Affairs http://www.nmfs.noaa.gov/ia/index.htm http://www.nmfs.noaa.gov/ia/index.htm

24. QUESTIONS ? What happened to 90% of the big fish? What happened to 90% of the big fish? Are we, or sharks, at the top of the food chain? Are we, or sharks, at the top of the food chain? Why is NMFS worse than the IRS? Why is NMFS worse than the IRS? Where have all the sea turtles gone? Where have all the sea turtles gone?