Law to Promote Environmental Sustainability of Oceans & Seas: Conservation & Sustainable Use of Fisheries Resources

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1 Law to Promote Environmental Sustainability of Oceans & Seas: Conservation & Sustainable Use of Fisheries Resources Milton Haughton Executive Director

2 Presentation Overview International legal framework Fisheries Specific instruments Key principles Current state Regional & National situation Key weaknesses

3 Overview of Legal Framework for Sustainable Fisheries Fisheries Law International Fisheries specific Instruments Regional Instruments National Legislation and regulations

4 Fisheries Specific Instruments 1. Law of the Sea Convention 2. UN Fish Stocks Agreement 3. FAO Compliance Agreement 4. FAO Port States Agreement 5. RFMOs Instruments & measures 1. UNGA Resolutions on Sustainable Fisheries (global policy guidance) 2. FAO Code of Conduct for Responsible Fisheries

5 UNCLOS KEY Provisions Transfer of property rights from international commons to state property regime Creation of the Exclusive Economic Zone concept Rights and Responsibilities

6 UNLOS KEY Provisions Rights Art 56, 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 UNCLOS Responsibilities:- Arts.61, 63-67; 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 to establish conservation & management measures for shared stocks (transboundary, straddling & highly migratory) - bilaterally and regionally Cooperation to manage high seas fisheries

8 ITLOS Case 21 on IUU Fishing Sub-Regional Fisheries Commission (SRFC) Responsibility and Liability of States for IUU Comprehensive analysis of duties of flag and coastal states Due diligence to ensure the vessels flying its flag are not involved in IUU fishing Failure comply with obligations could result liability Must adopt measures such as: legislation, regulations, administrative & enforcement capacity to monitor, regulate &control vessels flying their flag.

9 FAO Code of Conduct for Responsible Fisheries Adopted in 1995, against a background of growing risks to global fisheries resource sustainability and food security Comprehensive non-binding instrument, which sets out principles and international standards for responsible practices with a view to ensuring the effective conservation, management and development of fisheries and aquaculture

10 Scope of the Code General principles & detailed provisions on their application 4 International Plans of Action (IPOA) Seabirds Fishing Capacity Sharks IUU Fishing 12 Technical Guidelines and supplements

11 Significance of the Code Voluntary Instrument BUT. Contains general principles of conservation and management found in binding instrument - Customary international law of fisheries To be interpreted and applied in accordance with applicable rules of international law NOT really Voluntary

12 KEY Principles for Sustainability Long-term conservation and sustainable use Science-based decision-making Ecosystem approach Precautionary approach Effective monitoring, control and surveillance Consistency with international trade law Good governance participation, transparency Multi level cooperation international, reg. national

13 Science-Based Decision making Assessment of stocks ecosystems, including bycatch, discards, and waste (UNCLOS Art. 61 and 119; FAO code of Conduct, Collection & exchange of fisheries data (UNCLOS, Art. 61(5), 119(2) Stock specific target and limit reference points (Code of Conduct, Art & FSA Art. 6(3)(b) Costs, benefits and effects of alternative management options related to excess capacity and fishing effort (Code of Conduct, Art. 7.3

14 Precautionary & Ecosystem Approach Absence of adequate information should not be used as a reason for postponing or failing to take measure (Code of Conduct, Art ; FSA, Art. 6(2) Cautious conservation and management measures for new or exploratory fisheries (Code of Conduct, Art ; UNFSA, Art. 6(6)) Stock specific target and limit reference points (FAO Code of Conduct, Art ; UNFSA, Art. 6(3)(b)) ITLOS Case 3&4 - Bluefin Tuna Case

15 Current State of Fisheries Study by Pitcher et al Use FAO Code as benchmark to evaluate performance 53 countries that produce 96% of global catch Found dismayingly poor compliance No country achieved a score in the good category Average score of all countries just over fail threshold. Norway, USA, Canada, Australia, Iceland and Namibia had overall compliance scores (60 %). At the bottom of the ranking are 28 countries that together land over 40 % of global fish catch achieved failed grades overall.

16 HIGH SEAS: RFMO - ICCAT Performance (2008 Review Hurry et al) Serious concern about state of: bluefin tuna, yellowfin tuna, swordfish, albacore States not taking their obligations seriously especially provision of scientific data and compliance with conservation & management regulations Concluded - performance could dramatically improve if States complied with their legally binding obligations

17 Caribbean Situation : Implementation of Global Fisheries Treaties

18 Regional Fisheries Bodies in Caribbean Facilitate cooperation for the conservation and management ICCAT FAO/WECAFC CRFM OSPESCA

19 Caribbean RFB - CRFM Established by treaty in 2002 Headquarters in Belize City 17 Member States Objective: efficient management and sustainable development of resources Co-operative arrangements for management of shared, straddling or highly migratory spp Sharing of expertise overcome capacity

20 CARIBBEAN REGIONAL FISHERIES MECHANISM (CRFM) COTED MINISTERIAL COUNCIL (Ministers Responsible for Fisheries) COFCOR Scientific Meeting FORUM (Fisheries Officials) Executive Committee Working Groups CRFM SECRETARIAT CRFM Secretariat Belize

21 CRFM Recent Fisheries Policy Instruments Common Fisheries Policy Castries Declaration on IUU Fishing Sub-regional Management Plan for Flyingfish Regional Coral reef action plan St. Georges Declaration on conservation, management and sustainable use of lobster Regional Strategy for climate change & DRM

22 National Legislation Harmonized fisheries law in several States Current laws outdated in many cases Main objective: The minister shall take such measures as he thinks fit.. to promote the management and development of fisheries, so as to ensure the optimum utilization of the fisheries resources [ (s3(1) St. Lucia; s 3(1) Dominica; s3(1) Grenada; and s3(1) St. Kitts & Nevis ]

23 National Fisheries Law Express commitment to sustainability in new fisheries laws e.g. Antigua & Barbuda, Guyana Objective: to promote.. sustainable development of fisheries.and in so doing shall promote precautionary approaches,..as well as the need to conserve fisheries resources for future generations. - (s3, Fisheries Act Guyana 2002)

24 National Fisheries Laws New Laws and regulations being developed: e.g. Bahamas, Jamaica, Belize, Trinidad and Tobago, St Kitts/Nevis are in the process of preparing new primary fisheries legislation stronger commitments to sustainability principles: - precautionary & ecosystem approach Example - Belize s4 Draft Fisheries Act the precautionary approach as described in the FSA shall be applied widely to the conservation and management of fishery resources in order to protect those resources and to preserve the aquatic ecosystems

25 Conclusion Even though several treaties limit a State s rights over its resources, the fundamental legal status of fishery resources as property to be exploited by States remains unchanged :- State sovereignty principle

26 Conclusions Comprehensive international framework for sustainable fisheries Limited acceptance / ratification Inadequate domestic implementation Lack of consistent interpretation of norms and principles - ambiguity and exceptions Inadequate mechanisms for compliance verification