1. Fisheries Management: The Current Legal and Normative Framework
Martin Tsamenyi
Professor of Law & Director
The Australian National Centre for Ocean Resources & Security
(ANCORS)
University of Wollongong, Australia
Prepared for the UNEP-WWF Symposium on Disciplining Fisheries Subsidies:
Incorporating Sustainability at the WTO & Beyond
1st – 2nd March 2007 Geneva, Switzerland

2. Presentation Summary
Overview of the international legal and normative framework for fisheries management
Examination of two key instruments
Law of the Sea Convention
Code of Conduct for Responsible Fisheries
Summary of key principles underpinning the international legal framework for fisheries management

3. Legal & Normative Framework at a Glance

4. Law of the Sea Convention FAO Technical Guidelines
International Legal and Normative Framework
Law of the Sea Convention
UN Fish Stocks
Agreement
FAO Compliance
Agreement
Fisheries Specific
Instruments
UNGA Resolutions
RFMOs
Together with the other voluntary fisheries instruments that were developed within its framework, – the four International Plans of Action on Seabirds, Sharks, Fishing Capacity, and IUU Fishing, and the FAO Strategy for Improving Information on Status and Trends in Capture Fisheries – the Code embraces and informs FAO’s fisheries work programme and seeks to hasten structural adjustment within the fisheries sector as a means of putting it on a more sustainable footing.
FAO Technical Guidelines
IPOAs
Seabirds
Sharks
Capacity
IUU

5. The Constitution of the OCEANS
The most significant modification of the law of the sea in the past 500 years
Transfer of property rights from international commons to state property regime
Creation of the Exclusive Economic Zone concept
Rights and Responsibilities

6. Rights [Art. 62] Promotion of the objective of optimum utilization
Conditioned by conservation obligations
Determination of capacity to harvest allowable catch
Allocation of surplus to foreigners
Subject to agreement
Enforcing fisheries laws and regulations against foreigners
Subject to some safeguards

7. Fisheries Responsibilities [Arts.61, 63-67; arts 116-119]
Conservation of the living resources
Ensure that fisheries resources are not endangered through over-exploitation
Standard to be applied is the maximum sustainable yield (MSY), qualified by relevant environmental and economic circumstances
Determination of the allowable catch
Protection of dependent and associated species
Collection and exchange of scientific data
Cooperation bilaterally and regionally to establish management measures for species that move between EEZ and high seas
Cooperation to manage high seas fisheries

8. Code of Conduct for Responsible Fisheries
In 1995, against a background of growing risks to global fisheries resource sustainability and food security, FAO Member States adopted the
Code of Conduct for Responsible Fisheries

9. Improving Information Responsible Fisheries
Scope of the Code of Conduct
Strategy for
Improving Information
on Status and Trends
IPOA-Sharks
IPOA-Capacity
Responsible Fisheries
IPOA-Seabirds
IPOA-IUU
Together with the other voluntary fisheries instruments that were developed within its framework, – the four International Plans of Action on Seabirds, Sharks, Fishing Capacity, and IUU Fishing, and the FAO Strategy for Improving Information on Status and Trends in Capture Fisheries – the Code embraces and informs FAO’s fisheries work programme and seeks to hasten structural adjustment within the fisheries sector as a means of putting it on a more sustainable footing.
12 Technical Guidelines
and
Supplements
Compliance
Agreement

10. Significance of the Code of Conduct
Said to be a “Voluntary Instrument”
BUT….
States general principles of conservation and management of fisheries resources found in binding instrument
Customary international law of fisheries
To be interpreted and applied in accordance with applicable rules of international law
Code of Conduct is NOT really “Voluntary”

11. Key Normative Principles of Responsible Fisheries
Long-term conservation and sustainable use
Science-based decision-making
Precautionary approach
Effective monitoring, control and surveillance
Consistency with international trade law
Special requirements of developing States

12. Long-term Conservation and
Ecosystem approach to fisheries - associated and dependent species
LOSC, Art. 61, 119
target stocks
LOSC, Art. 61 and 62; UNFSA, Art. 5(h)
Limiting capacity and prevention of overfishing and transfer of excess capacity
FAO Code of Conduct, Art , Art ; UNFSA, Art. 5(h)
Long-term Conservation and
Sustainability Use
Protection of critical fisheries habitats in marine and freshwater ecosystems
FAO Code of Conduct, Art. 6.8
Use of selective and environmentally safe fishing gears and practices
FAO Code of Conduct, Art. 6.6

13. Science-based Decision making
Costs, benefits and effects of alternative management options related to excess capacity and fishing effort
FAO Code of Conduct, Art. 7.3
Assessment of stocks ecosystems, including bycatch, discards, and waste
LOSC, Art. 61 and 119; FAO code of Conduct,
Science-based Decision making
Collection & exchange of fisheries data
LOSC, Art. 61(5), 119(2)
Fisheries information and data collection
UNFSA, Annex I
Relevant social, economic, and institutional factors
FAO Code of Conduct, Art
Stock specific target and limit reference points
FAO Code of Conduct, Art
UNFSA Art. 6(3)(b)

14. Precautionary approach
Discards, non-target and associated or dependent species
FAO Code of Conduct, Art ; UNFSA, Art. 3(d)
Absence of adequate information should not be used as a reason for postponing or failing to take measure
FAO Code of Conduct, Art ; UNFSA, Art. 6(2)
Stock specific target and limit reference points
FAO Code of Conduct, Art ; UNFSA, Art. 6(3)(b)
Precautionary approach
Size and productivity of stocks, reference points, fishing mortality, impact of fishing activities
FAO Code of Conduct, Art ; UNFSA, Art. 6(3)(c), Annex II
Cautious conservation and management measures for new or exploratory fisheries
FAO Code of Conduct, Art ; UNFSA, Art. 6(6)

15. control, and surveillance
Effective control over nationals
LOSC, Art. 94; UNFSA, Art. 18; FAO Code of Conduct, Art. 8.2
Vessel monitoring systems
LOSC, Art. 62(4)(e), UNFSA, Art. 18(3)(g)(iii); FAO Code of Conduct, Art
Effective monitoring,
control, and surveillance
Sanctions of sufficient severity
UNFSA, Art. 19(2); FAO Code of Conduct, Art
Observer programmes
LOSC, 62(4)(g); UNFSA, Art. 18(3)(g)(ii); FAO Code of Conduct, Art
Boarding and inspection
LOSC, Art. 73(1); UNFSA, Art

16. International Trade Law Consistency for compliance Measures
Other Import and export controls
Trade/statistical documentation schemes
IUU list of vessels
International Trade Law Consistency
for compliance Measures
Catch documentation schemes
Port State measures

17. Special requirements of developing States
Training and scientific cooperation
Financial and Technical assistance
Technology transfer
Special requirements
of developing States
Access agreements, joint ventures
Vulnerability of developing States and dependence on marine living resources
Not to carry disproportionate burden of conservation onto developing States

18. Evaluation
Adequate international norms for sustainable fisheries management exist….BUT
Lack of ratification/acceptance
Lack of domestic implementation
Lack of consistent interpretation of norms and principles
Ambiguity and exceptions
Lack of adequate mechanisms for compliance verification

19. One day, all seafood might look like me. Yum, Yum!