Improving accountability and performance in international fisheries management

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1 A series of papers on policy options, prepared for the third meeting of the Global Ocean Commission, November 2013 Policy Options Paper # 9: Improving accountability and performance in international fisheries management What are the issues? High seas fish stocks have seen dramatic declines over the last half-century. Today, two-thirds of stocks in the high seas are overexploited and/or depleted. This is a significantly larger percentage than the average across the whole ocean, including exclusive economic zones (EEZs), where one-third of all stocks are overexploited and/or depleted. The primary driver for the situation in the high seas is a flawed, patchworked management system: the existing international regulatory regime for high seas fisheries fails to adequately manage fisheries to prevent overfishing and indiscriminate fishing practices and to prevent adverse impacts on ocean ecosystems. The system faces numerous challenges, including structural and governance weaknesses associated with regional fisheries management organisations (RFMOs); a lack of political will; lack of implementation or compliance with international agreements such as the United Nations Fish Stocks Agreement (UNFSA); and illegal, unreported and unregulated (IUU) fishing. This paper focuses on the RFMO system, which forms the backbone of high seas fisheries management (See Appendix 1, below). Although there has been tremendous investment in this system, it has fallen short with regards to the sustainable management of fish stocks. The Global Ocean Commission has an opportunity to make recommendations to address the shortcomings of the existing management system and to promote ways of improving fisheries management. Current status Global fisheries Driven by growing market demand, improvements in the technology to catch, process, store and transport fish, and a large expansion in the size and capacity of fishing fleets, the global marine fish catch increased dramatically from approximately 20 million tonnes per year in the early 1950s to over 80 million tonnes per year in the 1990s. Since then, however, in most ocean regions, marine fish catches have plateaued or declined. As of 2009 (the latest year for which the UN Food and Agriculture Organization 1

2 [FAO] estimates are available), the FAO reported that 57% of fish stocks were fully exploited, 30% were overexploited, and only 13% were moderately or non-fully exploited 1. However, the FAO s assessment of the status of world fisheries is likely to underestimate the scale of the problem. A number of scientific studies over the past decade have looked at historical information on fisheries and changes to ocean and coastal ecosystems as a result of overfishing. They concluded that the massive overharvesting of large marine vertebrates including fish species, dugongs, sea cows, sea turtles, whales, and other marine mammals, has led to major structural and functional changes in coastal ecosystems. This has often resulted in the wholesale collapse of ecological communities, e.g. through weakening the ability of these ecosystems to withstand the deleterious effects of other human impacts such as increased nutrient input into the seas from agriculture or urban development 2,3.The impacts of more recent and potentially severe ocean stressors ocean acidification and the warming of the oceans as a result of increased greenhouse gas emissions (see Policy Options Paper # 2 on Climate Change and Ocean Acidification for further discussion of these topics) are likely to be similar. The collapse of coastal ecosystems may take decades or centuries to occur after the initial onslaught of overfishing, raising the spectre that many more marine ecosystems may yet be seriously affected as a result of the technological intensification and globalisation of fishing within the past 50 years. Declines in fisheries have dire consequences for the global community; as well as reducing available jobs in the fishing sector, declining stocks threaten food security. The FAO estimates that 3 billion people derive 20% of their animal protein from fish or fish products and that fisheries and aquaculture combined, including ancillary industries such as processing, marketing and distribution, support the livelihoods of 660 to 820 million people, which is approximately 10 12% of the world s population 4. However, these benefits are threatened as fish continue to be harvested at unsustainable levels. The World Bank estimates that mismanagement of fisheries represents an annual loss of $50 billion to the global economy 5, in large part to the detriment of developing countries 6. High seas fisheries High seas fisheries are a subset of global fisheries, but share many of the same trends. The fish of the high seas are an open-access resource they belong to no-one and they belong to everyone. They are located far from the eyes of most of us, in areas that were until recently perceived as vast and unendingly bountiful. However, documentation of global catch from these areas reveals that they are subject to the same trends in overexploitation that are documented in coastal waters. While the FAO does not maintain a global database of high seas fisheries, it is able to estimate current and historic catch based on species type and catch location. Figure 1, for example, shows the dramatic rise in the catch of species fished in part or wholly on the high seas since the 1950s more than a five-fold increase in tonnage. Furthermore, a recent study estimated that the high seas catch corresponded to approximately 15% of the total global marine catch in

3 Figure 1. Trends in catch of species fished in part or wholly on the high seas from Trends in the fisheries for highly migratory, straddling and discrete high seas fish stocks stocks managed by RFMOs appear to be even more problematic than the global norm 9. The most recent FAO assessment of these stocks indicates that while less than one-third (30%) of highly migratory tuna stocks are considered overexploited or depleted, more than one-half of the stocks of highly migratory oceanic sharks and almost two-thirds of straddling stocks are overexploited or depleted 10. Indeed, in a widely cited study published in 2003, Myers and Worm triggered considerable debate and controversy when they published a paper suggesting that the world s oceans had lost some 90% of large predatory fish since the advent of industrialised fishing and that the major declines in top predators in coastal ecosystems have now extended throughout continental shelf and open ocean ecosystems, including the high seas 11. As we shall see, several drivers have led to the decline in high seas stocks, including developments in technology, the rise of illegal activity, and fisheries subsidies programmes. Growing consumer demand and technology development over the last 50 years have resulted in a larger, more powerful distant water fleet 12, although it is difficult to accurately estimate the number of vessels fishing on the high seas. The High Seas Vessels Authorization Record (HSVAR) 13 is intended to be an up-to-date record of authorised high seas fishing vessels, but it is not been maintained and does not contain records from a number of known high seas fishing nations (e.g. China, Russia, Chinese Taipei) 14. It could, therefore, be used as a minimum figure, with roughly 4,000 vessels authorised to fish on the high seas. Meanwhile, the Secretariat of the Indian Ocean Tuna Commission (IOTC) has identified 19,587 vessels authorised by the five main RFMOs managing fisheries for tunas and other highly migratory stocks (ICCAT, WCPFC, IOTC, IATTC, CCSBT) in While the majority of these vessels are likely to be fishing within EEZs, a significant portion would be authorised by their flag States to fish on the high seas, and all are authorised to operate in the fisheries managed by the RFMOs. 3

4 The bottom line is that there is a real lack of knowledge about the exact scale of fishing on the high seas, and this applies not only to the number of vessels involved but also to the amount of fish being caught. Although RFMOs set quotas for their member States, additional fish are caught in the high seas through IUU fishing. This has many consequences, including a positive feedback loop in stock declines, as science-based management decisions are stymied with false catch data. This issue and others related to IUU fishing are discussed in detail in Policy Options Paper # 8 on Illegal, Unreported and Unregulated Fishing. Another driver in the decline of fish stocks is continued subsidies. Individual nations have encouraged the overexploitation of fish stocks by offering their fishing fleets substantial subsidies to continue in an otherwise economically unviable industry. As discussed in detail in Policy Options Paper # 6 on Fisheries Subsidies, global subsidies are high and well-entrenched in a handful of States due to strong fishing lobbies. The ultimate consequence is higher, non-sustainable catch levels, which imposes an adjustment cost on to the resource itself. Regional fisheries management organisations The 1982 UN Convention on the Law of the Sea (UNCLOS) establishes the overall legal framework for the management of fisheries on the high seas. Amongst its requirements are the duty to conserve the living marine resources of the high seas and to cooperate with relevant coastal states and other high seas fishing states in the conservation and management of stocks of fish that occur both within areas of national jurisdiction and on the high seas primarily straddling and highly migratory fish stocks. Moreover, UNCLOS contains obligations to protect and preserve the marine environment and requires that flag States exercise effective control over their vessels operating in high seas areas. UNFSA elaborated on the general provisions of UNCLOS and established RFMOs as the institutions charged with managing high seas fisheries. As a result, RFMOs are assumed to provide a forum through which States will cooperate to achieve and enforce conservation objectives, both on the high seas and in areas under national jurisdiction. Their responsibilities include assessing the status of fish stocks of commercial value within their area of jurisdiction; setting limits on catch quantities and the number of vessels allowed to fish; conducting inspections and/or regulating the types of gear that can be used. Today, there are 18 RFMOs covering nearly the entire ocean (see Appendix 1 for a map of coverage). RFMOs vary widely in their effectiveness but most suffer from a number of shortcomings in their governance and management structures and, in general terms, have failed to live up to expectations. RMFOs are member-driven organisations. The regulations adopted by RFMOs only bind those nations that are Parties to the RFMO. Non-parties are free to do as they please, often with minimal repercussions; their catch, if in contravention of the RFMO regulations, would be considered unregulated. While the offending non-party vessels and countries are often subject to port- and market-access restrictions, fishing on the high seas in the waters managed by an RFMO is not a crime. 4

5 Effective RFMO decision-making is often undermined by one or a handful of Parties. Many RFMOs operate on consensus-based decision-making, whether as a formal requirement or as standard practice; thus a conflict of interest, or a lack of political commitment by just one member, can prevent the adoption of meaningful regulations. Where RFMOs do not require consensus but can adopt regulations on the basis of a vote by a majority or qualified majority of the members, most also allow members to opt out of regulations they don t wish to accept or be bound by. Moreover, many RFMOs lack transparency in important respects: key decisions are often made in closed sessions without the need for Parties to justify positions or decisions that do not reflect scientific advice and with little accountability. Most RFMO member States have a direct economic interest in the fisheries managed by that organisation. They are often reluctant to accept new members and allocate them a quota. There is also pressure to establish overall levels of catch (Total Allowable Catch or TACs) higher than those recommended by their scientific bodies or advisors, so that all interested parties can get a quota as high as possible. The adoption of sustainable TACs is further hindered by IUU fishing, which reduces the accuracy of stock assessments. RFMOs tend to focus their management on a single species or handful of species of commercial value, which leaves the impact of fishing on many non-commercial species and the ecosystem effectively unregulated. Some RFMOs have made significant efforts to reduce the impact of fisheries within their competence on some bycatch species; for example, the IATTC established management measures to reduce the mortality of dolphins in the purse seine fisheries for tuna in the eastern Pacific, and CCAMLR put measures into place to reduce albatross mortality in the longline fisheries in the Southern Ocean. However, despite being mandated to establish measures with respect to non-target species, associated and dependent species, and species belonging to the same ecosystem on the basis of the precautionary approach and ecosystem approach, RFMOs often fail to consider impacts on the broader ecosystems affected by the fisheries they regulate, much less the cumulative effects or impacts. In terms of the use of science, moreover, RFMOs often use the lack of scientific information as an excuse or reason for failing to take precautionary management decisions, when it should be just the reverse according to the precautionary principle. Communication and coordination between adjacent RFMOs is often weak. Each RFMO operates independently, with its own staff and funding. Of course the fish, especially highly migratory species, do not recognise these political divisions, so it would be logical for adjacent RFMOs to coordinate the setting of TACs. Beyond managing shared stocks, RFMOs could benefit from greater communication, to ensure they share lessons and avoid repeating mistakes; some RFMOs are much younger than others and can benefit from their greater experience. There have been important improvements in recent years, however. For example, the Contracting Parties to the five main tuna RFMOs have established the Kobe process in order to share information on issues of mutual concern and facilitate better coordination amongst themselves. In addition, a number of RFMOs (e.g. NAFO and NEAFC; SEAFO and CCAMLR) share 5

6 information on IUU fishing and IUU vessel blacklists, while the Secretariats of the major RFMOs have held meetings in conjunction with the biennial meetings of the FAO Committee on Fisheries since Issues with a lack of coordination extend beyond fisheries. Other regional or global structures often exist in the same ocean space as RFMOs but manage other sectors. For example, UNEP s Regional Seas Programmes address topics such as marine health and pollution; the International Maritime Organization (IMO) addresses shipping and potential discharges; and the International Seabed Authority (ISA) covers seabed mining. The actions and management decisions of these various groups may affect the marine environment and its fish stocks but coordination across the sectors is largely absent. In some areas there has been improvement (e.g. in the North Atlantic), but it is far from comprehensive and is time-intensive. As a final point of discussion, there is a great disparity in funding levels and corresponding capacity between different RFMOs. Roughly US$ 28 million is spent annually on fisheries management in the main 11 RFMOs (see Table 1). This is not spent uniformly, rather it is disproportionately directed to the five main tuna RFMOs. There is a direct correlation between capacity and funding levels, so it is not surprising that some RFMOs are not as successful as others. The funding figure has a particularly dramatic contrast when compared to the approximately US$ 35 billion spent annually on global fishing subsidies 16. Table 1. RFMO annual budgets ($US) 17 RFMO ICCAT (2006) (a) WCPFC (2012) (b) NAFO (2012) (c) TOTAL ANNUAL BUDGET OF MAIN RFMOs IOTC (2001) (d) SPRFMO ( ) (e) CCSBT (2012) (f) IATTC/CIAT (2013)(g) SEAFO (2012)(h) CCAMLR 2013(i) IPHC 2012 (j) NEAFC (2008) (k) Total (US) 2,954, ,403,884 1,875,000 1,085, , ,960,848 6,335, , ,651,430 4,900,000 1,533,197 Current policy landscape UN Fish Stock Agreement (UNFSA) Arguably the most important of the international fisheries agreements the UNFSA, establishes a range of obligations related to the conservation and management of fisheries on the high seas, which build on the more general provisions of UNCLOS 18. Articles 5 and 6 of the UNFSA oblige States to: assess the impacts of fishing on target stocks and species associated with or dependent upon the target stocks, and prevent overfishing minimise bycatch, waste and discards, and impacts on non-target species protect biodiversity in the marine environment collect and share accurate and timely data on catch and bycatch and areas fished apply the precautionary approach, particularly where scientific information is poor protect habitats of special concern. 6

7 The UNFSA obliges States to ensure the compatibility of measures for the management of straddling and highly migratory fish stocks adopted by coastal States within EEZs and RFMOs on the high seas. With regard to the duties of flag States fishing on the high seas, the UNFSA establishes a series of obligations in relation to compliance and enforcement (Articles 18 22). Amongst these is a requirement that the flag State exercises effective enforcement capabilities over fishing vessels flying its flag, so as to ensure compliance with applicable regional conservation and management measures irrespective of where violations occur. The flag State is also required to investigate immediately and fully any alleged violation of sub-regional or regional conservation and management measures and to report promptly on the progress and outcome of the investigation to the State alleging the violation and the relevant sub-regional or regional organisation or arrangement. In addition, the flag State must require any vessel flying its flag to give information to the investigating authority and, where sufficient evidence is available in respect of an alleged violation, refer the case to its authorities with a view to instituting proceedings without delay. UNFSA Article 21 establishes a list of serious violations requiring enforcement action by the flag State and obligates the flag State to, where appropriate, detain the vessel concerned and ensure that, where it has been established that a vessel has been involved in the commission of a serious violation, the vessel does not engage in fishing operations on the high seas until such time as all outstanding sanctions imposed by the flag State in respect of the violation have been complied with. In language similar to UNCLOS Article , UNFSA Article 19.2 requires the flag State to impose sanctions that are adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities. There have been numerous cases where vessels identified by an RFMO as having engaged in IUU fishing have reflagged and continued fishing without effective action taken by the flag State concerned to penalise and prevent the vessel from continuing as an IUU fisher on the high seas 20. The UNFSA has been ratified by 79 nations plus the European Union, which includes most high seas fishing nations; however, important exceptions remain, e.g. China, Chile and Mexico. While several provisions of the UNFSA, primarily the compatibility and high seas boarding and inspection provisions, have been cited by a number of States as a reason for not having ratified the UNFSA, the conservation provisions of the UNFSA (Articles 5 and 6) are not in dispute. The relatively low number of ratifications is particularly striking when compared to the 166 ratifications which UNCLOS has. Many nations have not ratified the UNFSA because they do not want to be bound by its more prescriptive requirements for fisheries management. The development of the Agreement was in recognition of the fact that the regime established by UNCLOS was inadequate to deal with the continued depletion of the world s fish stocks, particularly straddling and high seas stocks. Importantly, however, the UNFSA does not seek to impose any additional requirements on Parties to UNCLOS, in fact it is first and foremost an agreement for the purpose of implementing the provisions of UNCLOS. While individual 7

8 countries may consider it deficient, it cannot reach its full potential unless the most important coastal, fishing and flag States are parties to it, and implement it effectively. FAO Code of Conduct The 1995 FAO Code of Conduct for Responsible Fisheries is one of the most important soft law instruments. Its purpose is to set international standards and norms for the development, management and utilisation of fisheries and aquaculture resources, in areas beyond and within national jurisdiction. As such it has been described as a global ethic for the conduct of fisheries 21. The Code has 10 objectives through which it promotes responsible fisheries by establishing scientifically based management decisions, which take into account all relevant biological, technological, economic, social, environmental and commercial aspects; establishes responsibilities for flag and port States; and recognises the importance of fisheries to food security, nutrition, and ecosystem health. There is a particular emphasis on conservation of living aquatic resources and their environments. It intended to serve as guidance for the development of national legislation. The conservation and management provisions of the UNFSA (Articles 5 and 6) and the FAO Code of Conduct (Articles 6 and 7) 22 are very similar and in many cases contain identical wording. The FAO Compliance Agreement forms an integral part of the Code and is referenced in Article 1. The Compliance Agreement elements remain binding but overall the Code is a voluntary agreement. It relies on the goodwill of Parties to enact and abide by its recommendations. Unfortunately, it seems that this does not happen across the board. One study documented that 28 countries, representing 40% of the world catch, failed in the majority of evaluation criteria for compliance with the Code. Compliance scores from developed nations are on average twice as high as those from developing nations. Only six countries had overall compliance scores whose confidence limits overlap with 60% (Norway, USA, Canada, Australia, Iceland and Namibia) 23. The FAO Code of Conduct reinforces the universality of the conservation provisions in the UNFSA and thus, together with the UNFSA provisions, should serve as the international minimum standard for the management of fisheries on the high seas and be fully reflected in the basic convention texts and regulations adopted by RFMOs to manage fisheries on the high seas. FAO Compliance Agreement The purpose of the 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement) is to provide an instrument for countries to take effective action, consistent with international law, to ensure compliance with applicable international conservation and management measures for living marine resources of the high seas. Adopted in 1993 and entering into force in 2003, the Compliance Agreement has been ratified by 48 nations plus the EU. 8

9 This instrument was negotiated to address the circumvention of international fisheries regulations by reflagging vessels to the flags of States that are unable or unwilling to enforce such conservation and management measures. The main obligation is for a Party to exercise responsibility over vessels flying its flag, and to provide information to a global record of fishing vessels (which became known as the High Seas Vessels Authorization Record HSVAR). RFMO performance review One of the proposed ways to reform RFMOs is to evaluate each organisation against a standard set of metrics in order to identify areas of improvement and to motivate the RFMO to modify its behaviour accordingly. The international community adopted this idea in the 2006 UN General Assembly Resolution on Sustainable Fisheries (61/105) and again through the FAO Committee on Fisheries in Eight RFMOs have conducted performance reviews thus far (IOTC, ICCAT, CCSBT, WCPFC, NEAFC, CCAMLR, NAFO, SEAFO). The five tuna RFMOs, however, have gone one step further and have met three times to improve their coordination (2007 in Japan, 2009 in Spain and 2011 in the US) in what is known as the Kobe process 25. During their first meeting, the tuna RFMOs agreed to a uniform set of criteria on which they should be evaluated; these criteria have been used in subsequent reviews of the tuna RFMOs and those targeting other species. Most of the RFMO performance reviews to date have been conducted by panels that include a number of members employed by the RFMO and/or one or more States that are Party to the RFMO. As such, they cannot be considered truly independent. Another shortcoming is that there is not an established timeline to review the implementation of corrections to the problems identified by the panels. Nonetheless, these eight RFMOs have taken a step, albeit a small one, towards reform. An examination of the performance reviews revealed a variety of problems shared by the RFMOs, including poor data provision, failure to adopt appropriate conservation measures, and inadequate compliance with management measures 26. Other common RFMO shortcomings include the following: (i) many RFMO conventions need updating to incorporate the provisions of the UNFSA and other internationally agreed standards and modern principles of fisheries management; (ii) a failure of RFMOs to require, and States to provide, timely and accurate catch and by-catch data; (iii) lack of sufficient mechanisms to enforce compliance by RFMO members with the rules and recommendations of the RFMOs; (iv) a lack of transparency in decision-making; (v) failure to establish management measures consistent with scientific information and advice; (vi) decision-making structures which allow one or more states to block or opt out of compliance with agreed regulations; (vii) inability to agree on participatory rights such as allocations of allowable catch or levels of fishing effort; and (viii) inadequate funding 27,28. A handful of NGOs and academics have conducted independent reviews, usually targeting a specific aspect of management (e.g. ecosystem-based fisheries management, bycatch reduction, implementation 9

10 of a specific regulation such as the Port State Measures Agreement [PSMA]) 29. Others have focused on identifying metrics against which to evaluate RFMO performance 30. Bottom fishing as a case study In at least one key respect, the management of high seas bottom fisheries and the performance of States and RFMOs has been a success story. Deep sea bottom fishing on the high seas has been the subject of much debate and negotiation at the UN General Assembly (UNGA) and other global bodies (the FAO and Conferences of Parties to the Convention on Biological Diversity). This has resulted in enhanced calls for action, and periodic review by the UNGA, with regards to managing these fisheries for sustainability and the protection of the environment. Since 2002 the UNGA has adopted a series of increasingly proscriptive resolutions calling for action by States and RFMOs to protect vulnerable deep-sea ecosystems and sustainably manage deep-sea fish stocks in areas beyond national jurisdiction through, amongst other measures, requiring prior environmental impact assessments of bottom fisheries on the high seas and precautionary area closures where vulnerable marine ecosystems (VMEs) are known or likely to occur. As of 2013, the UNGA has conducted three reviews of the implementation of the measures called for in the resolutions, with a fourth review scheduled for As a result of the UNGA resolutions and reviews, three new agreements have been negotiated to establish RFMOs in the North Pacific, South Pacific, and Southern Indian Ocean. The resolutions have also prompted States and RFMOs to take a number of tangible measures to protect so-called VMEs, such as deep-water coral reefs and sponge fields, through area closures and gear restriction (e.g. CCAMLR has banned the use of bottom trawls on the high seas and several RFMOs have prohibited high seas bottom gillnet fishing). However, the UNGA resolutions have not yet been fully implemented by States and RFMOs in spite of the deadline of December 2008 set by the UNGA. Many high seas areas where VMEs are known or likely to occur remain under threat from bottom fishing, in particular bottom trawling. The impact assessments called for by the UNGA have often been inconclusive, and of the hundreds of species worldwide known or likely to be impacted by deep-sea fishing on the high seas, few are managed for sustainability 31. Nonetheless, the progress the international community has made on bottom fishing is the best example of high seas fisheries management to date. Momentum needs to be maintained if we are to continue to implement the UNGA resolutions more effectively in order to prevent adverse impacts to the marine environment and ensure the effective management of deep-sea fisheries. Capacity development Not all nations possess the same capacity to enforce the international or regional rules and regulations they have adopted. In an FAO survey in the mid-2000s more than one-half of the 64 self-reporting 10

11 countries said their ability to control the activities of their flagged vessels on the high seas was ineffective or inefficient 32. Developing countries face a huge number of often competing pressures that limit their ability to make progress in fisheries management. Fisheries management requires a robust legal system, political will to develop binding management arrangements, and a justice system capable of successfully prosecuting offenders. There are numerous studies that show a high degree of correlation between weak governance and IUU fishing. Inshore resources are frequently heavily fished by subsistence or artisanal fishers and traditional management arrangements do not provide the necessary guidance and tools to manage such circumstances. There is a disparity in the level of return when implementing binding fisheries management arrangements; the returns can be offered to hard-working government officials to persuade them to weaken controls or turn a blind eye to illegal activities. Despite the millions of dollars that have been provided in direct aid to the fisheries sectors in developing countries and the capacity development funds established under specific treaties, with the exception of a few notable examples (i.e. Namibia), there have not been substantial improvements in domestic fisheries management. Neither has this funding, by and large, enabled developing countries to take a meaningful place in international management arrangements and a share of high seas resources. The 1993 FAO Compliance Agreement was the first international fisheries instrument to address capacity building directly. However, the 1995 UN Fish Stocks Agreement devoted an entire section to capacity development, including the establishment of an assistance fund to address the requirements of developing countries 33. Known as the Part VII Assistance Fund, it has operated successfully since its inception in Between 2005 and 2010 the fund amounted to just under US$ 1 million. The assistance fund has facilitated increased participation by developing countries in regional and international meetings and also enabled technical work and capacity development that might have not been undertaken if such activities had been dependent on funding from other sources 34. The FAO has channelled a significant amount of resources to support the implementation of the 1995 FAO Code of Conduct across the world. Funding has come from the FAO Regular Programme and non- FAO resources and was managed by a dedicated programme within the FAO Fisheries and Aquaculture Department. In 2000 the programme was replaced by the more elaborate, better-funded and more flexible FishCode Programme. A significant amount of FishCode Programme funding has been devoted to helping countries implement programmes to combat IUU fishing, including capacity development for the implementation of port State measures 35. Other international agreements also have provisions for capacity development (e.g. PSMA and the International Plan of Action to Prevent, Deter and Eliminate IUU fishing [IPOA-IUU]), as do individual 11

12 RFMOs (e.g. ICCAT, CCAMLR, WCPFC and IATTC 36 ) and individual States. The UN maintains a list of sources of financial assistance and other available vehicles for helping increase the capacity of developing States to better conserve and manage their fishery resources, including straddling fish stocks and highly migratory fish stocks 37. But there is no overarching programme to ensure that funding through all these mechanisms is dedicated to the most needy projects or that it is equitably distributed around nations in need. Moreover, most of the development programmes address coastal issues, and do not necessarily directly address high seas issues. Conclusions RFMOs vary greatly in their activities and effectiveness. Despite the many efforts by States and RFMOs to better regulate fisheries on the high seas, the situation does not appear to be substantially improving and in some cases it seems to be getting worse. Many high seas fish stocks managed by RFMOs continue to decline or remain at low levels of abundance; bycatch of many associated or non-target species on the high seas remains high and in most cases unregulated or insufficiently regulated; and adverse impacts on the marine environment are not effectively addressed or assessed, There are a variety of reasons for this, including structural and governance weaknesses associated with RFMOs, lack of political will, lack of consequence for poor performance, and deficiencies in capacity. The fundamental principles and legal obligations (e.g. the precautionary approach, ecosystem approach, etc.) that could lead to sustainable fisheries management, are contained in many of the binding and nonbinding fisheries agreements, and in the UNFSA in particular. What is needed is effective and uniform application of these principles and obligations in practice. A number of changes to the existing system, put forward below, would likely result in dramatic improvements to the effectiveness and sustainability of high seas fisheries management. Options to consider Whilst much work has been done to improve the effectiveness of high seas fisheries management, including through strengthening RFMOs, much more needs to be done to address the problems and shortcomings outlined in this paper. RFMOs need to be made more accountable to the international community and society as a whole. Many of the solutions are well known, but the Global Ocean Commission may be able to create a sense of urgency that would help these solutions be implemented more quickly. Possible recommendations include the following. 1. UNFSA and RFMO biennial performance review The Commission may recommend that the UNGA adopts a resolution to institute a biennial UNFSA review conference, including standing agenda items covering RFMO performance review and the state of related scientific knowledge, based on an independent and transparent assessment and objective criteria. 12

13 The Commission may suggest that the convention texts governing the different RFMOs fully incorporate flag States obligations and the conservation and management provisions of Articles 5 and 6 of the UNFSA; eliminate the opt-out clauses; and establish a majority (or qualified majority) procedure for adopting regulations. 2. Regional Ocean Management Organisations (ROMOs) The Commission may also in addition to or instead of Option 1 above unequivocally express its concern for the lack of effectiveness of the current RFMO system and state that a preferable option could be a new approach based on the creation of Regional Ocean Management Organisations (ROMOs). This would break out of the narrow single-species or single classes of species approach in order to facilitate the implementation of precautionary ecosystem-based management measures that would address and seek to mitigate the impacts of all the possible uses of the sea and types of human activities on the entire marine ecosystem. A possible first option could be to merge overlapping RFMOs and Regional Seas Programmes. If there is interest in this option at the third meeting of the Commission, the Commission may want to ask the Secretariat to prepare a paper for the fourth meeting, based on literature review and informal consultations with key stakeholders to identify how and within what time-frame this could be done, legally and politically. 3. Improve adherence to international instruments The Commission may actively urge a list of key States to, as a matter of urgency, ratify or accede to international fisheries instruments to which they are not yet parties, in particular the UNFSA and the PSMA, and relevant regional agreements. 4. Stop blind fishing (environmental impact assessments) The Commission may recommend that States and RFMOs only authorise fishing on the high seas in areas where, and for species for which, a prior impact assessment has determined that the fisheries can be managed to prevent adverse impacts on the marine environment, ensure the sustainability of the target species, and have minimal impact on other species in the ecosystem. No fishing should be authorised where a robust assessment of the potential impact of the fishery has not been conducted. Assessments should be conducted on a regular basis, including where new scientific information becomes available or before new technology is deployed in the fisheries. 5. A freeze on and/or reduction of fishing capacity The Commission may propose that RFMOs establish a freeze on any increase in fishing capacity and/or set ambitious targets and an expedited timetable (e.g. 50% over five years) for a progressive reduction in the numbers and overall capacity of vessels authorised to fish in their respective areas of competence. 6. Equitable distribution of fishing opportunities 13

14 The Commission may recommend that States and RFMOs be required to establish an equitable distribution of fishing opportunities, so as to provide opportunities to all countries interested in fishing on the high seas. Allocation of fishing opportunities should be contingent on the flag State having demonstrable capacity to effectively manage and control the activities of its vessels and ensure compliance with regulations, in order to avoid situations where some countries could be used as flags of convenience, such as when vessels are owned by companies from developed countries which cannot or do not wish to flag their vessels to the country where they are based. For example, New Zealand companies are flagging deepwater high seas trawl vessels to the Cook Islands in order to be able to fish in conditions that New Zealand regulations would not permit. Overall levels of catch, based on precautionary and independent scientific advice, should be agreed and established before deciding on allocations amongst Parties to RFMOs. 14

15 Appendix 1 15

16 Source: N. C. Ban et al., Systematic conservation planning: a better recipe for managing the high seas for biodiversity conservation and sustainable use, Conservation Letters (2013; Systematic conservation planning: a better recipe for managing the high seas for biodiversity conservation and sustainable use). 16

17 References 1 FAO Fisheries and Aquaculture Department, The state of the world fisheries and aquaculture 2012 (FAO, Rome, Italy, 2012; 2 D. Pauly et al., Fishing Down Marine Food Webs. Science 279, (1998). 3 J. B. C. Jackson et al., Historical Overfishing and the Recent Collapse of Coastal Ecosystems. Science 293, (2001). 4 FAO World Bank, The Sunken Billions: the Economic Justification for Fisheries Reform (World Bank, Washington DC, 2009). 6 D. J. Agnew et al., Estimating the Worldwide Extent of Illegal Fishing. PLoS ONE 4(2), e4570 (2009). 7 California Environmental Associates, Charting a Course to Sustainable Fisheries (2012; 8 FAO Fisheries and Aquaculture Department, The state of the world fisheries and aquaculture 2008 (FAO, Rome, Italy, 2009; ftp://ftp.fao.org/docrep/fao/011/i0250e/i0250e01.pdf). 9 FAO J. J. Maguire et al., The state of world highly migratory, straddling and other high seas fishery resources and associated species. FAO Fisheries Technical Paper. No Rome: FAO pp. 11 R. A. Myers & B. Worm, Rapid worldwide depletion of predatory fish communities. Nature 423, (2003). 12 M. Gianni & W. Simpson, The changing nature of high seas fishing: how flags of convenience provide cover for illegal, unreported and unregulated fishing (Australian Department of Agriculture, Fisheries and Forestry, International Transport Workers Federation, and WWF International, 2005); FAO, Deep-sea fisheries in the high seas: ensuring sustainable use of marine resources and the protection of vulnerable marine ecosystems (FAO, Rome, Italy, 2009; FAO Fisheries and Aquaculture Department, Fishing vessels, FAO (2013; R. Baird, Illegal, unreported and unregulated fishing: an analysis of the legal, economic, and historical factors relevant to its development and persistence, Melbourne Journal of International Law 5 (2004); FAO Fisheries and Aquaculture Department, The state of the world fisheries and aquaculture 2004 (FAO, Rome, Italy, 2005; Plenty more fish in the sea? A special report on the sea, The Economist (3 Jan 2009). 13 FAO Fisheries and Aquaculture Department, HSVAR: High Seas Vessel Authorization Record, FAO (2013; 14 According to the information available on the UN FAO website, Japan has a total of 1,607 vessels in the Record but not one of them is listed under Authorized Vessels; rather all 1,607 are listed as Expired Vessels. Australia and New Zealand are also listed as having no Authorized Vessels; both countries authorise vessels to engage in bottom fisheries on the high seas. accessed 14 October Global Consolidated List of Authorized Vessels (CLAV). Document K rd Joint Meeting of the Tuna RFMOs. La Jolla, California, July 11 15, 2011: 16 Sumaila et al., (a) (b) (c) (d) (e) (f) 17

18 (g) (h) (i) (j) (k) (l) M. Gianni & W. Simpson, The Changing Nature of High Seas Fishing: how flags of convenience provide cover for illegal, unreported and unregulated fishing. Australian Department of Agriculture, Fisheries and Forestry, International Transport Workers Federation, and WWF International, (2005). 21 NOAA Fisheries, Improving international fisheries management: report to Congress pursuant to Section 403(a) of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (US Department of Commerce, 2013) T. Pitcher et al., Not honouring the code, Nature 457, (2009). 24 Pew Environment Group, Finding sustainability: recommendations to the UN Fish Stocks Review Conference, Pew Charitable Trust (2010; s%20to%20the%20unfsa%20review%20conference% pdf?n=8198). 25 IOTC Secretariat, Performance review of tuna regional fishery management organizations, Indian Ocean Tuna Commission (08[E]-rev1, 2007; 26 Pew Environment Group, Finding sustainability: recommendations to the UN Fish Stocks Review Conference, Pew Charitable Trust (2010; s%20to%20the%20unfsa%20review%20conference% pdf?n=8198). 27 K. M. Gjerde & D. Freestone, Conference on the governance of high seas fisheries. The International Journal of Marine and Coastal Law 20, 3 4 (2005). 28 K. Gjerde et al., Ocean in peril: reforming the management of global ocean living resources in areas beyond national jurisdiction, Marine Pollution Bulletin, in press (2013). 29 S. Cullis-Suzuki & D. Pauly, Failing the high seas: a global evaluation of regional fisheries management organizations, Marine Policy 34(5), (2010). 30 M. Lodge et al., Recommended Best Practices for RFMOs, Report of an Independent Panel to Develop a Model for Improved Governance by RFMOs (Chatham House, The Royal Institute for International Affairs, London, UK, 2007; 31 M. Gianni, et al., Unfinished business: a review of the implementation of the provisions of UNGA resolutions 61/105 and 64/72 related to the management of bottom fisheries in areas beyond national jurisdiction, Deep Sea Conservation Coalition, September See also the report of the UN General Assembly Workshop to discuss implementation of paragraphs 80 and 83 to 87 of resolution 61/105 and paragraphs 117 and 119 to 127 of resolution 64/72 on sustainable fisheries, addressing the impacts of bottom fishing on vulnerable marine ecosystems and the long-term sustainability of deep-sea fish stocks: Letter dated 27 October 2011 from the Moderator of the Workshop to the President of the General Assembly. UN General Assembly document A/66/566 (18 November 2011; 32 Action Taken by FAO Members and FAO to Implement the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) (Document TC IUU-CAP/ 2004/2 prepared for the UN FAO Technical Consultation on the Implementation of 18

19 the IPOA to Prevent, Deter and Eliminate IUU Fishing and the IPOA for the Management of Fishing Capacity, FAO, Rome, Italy, June 2004). 33 D. J. Doulman & J. Swan, A guide to the background and implementation of the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (FAO Fisheries and Aquaculture Circular No. 1074, Rome, 2012). 34 Doulman & Swan Doulman & Swan NOAA Fisheries, Improving international fisheries management: report to Congress pursuant to Section 403(a) of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (US Department of Commerce, 2013). 37 Sources of available assistance for developing States and the needs of developing States for capacity building and assistance in the conservation and management of straddling fish stocks and highly migratory fish stocks, (ICSP8/UNFSA/INF.4/Rev; 19

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