Implementing the Fish Stocks Agreement
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Article 2 of the Fish Stocks Agreement sets out its overarching objective: "to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the [Law of the Sea] Convention." To this end, the agreement focuses on creating a detailed framework for the management of these fish stocks. It can be seen from the preamble of the agreement, however, that it does not only address issues concerned with the fish stocks themselves and their capture, but also places their conservation and management squarely within the wider context of the need to avoid adverse impacts on the marine environment, of the preservation of marine biodiversity, and of the integrity of the marine ecosystem.
The Fish Stocks Agreement will enter into force 30 days after the date of deposit of the thirtieth instrument of ratification or accession. At the time of writing, 57 states have signed the agreement, and 27 have ratified it.47
The Fish Stocks Agreement applies, "unless otherwise provided," to the conservation and management of straddling fish stocks and highly migratory fish stocks "beyond areas under national jurisdiction."48 However, Article 6, concerning the precautionary approach, and Article 7, concerning compatibility of conservation measures established for the high seas and those adopted for areas under national jurisdiction, also apply within areas under national jurisdiction. Likewise, the coastal state is required to apply-mutatis mutandis-the general principles set out in Article 5 in the exercise of its sovereign rights concerning straddling fish stocks and highly migratory fish stocks.
With regard to national implementation of the Fish Stocks Agreement, the main provisions that call for implementation through national legislation are Articles 5, 6, and 7, which expressly apply within the EEZ. There are, however, Page 22
1. The agreement requires coastal states and distant water fishing states (DWFS) to ensure that the conservation and management measures, which are created within the EEZ and on the high seas, are compatible.
2. The agreement sets out general principles for the conservation and management of straddling fish stocks and highly migratory fish stocks, including the precautionary approach, which parties to the agreement are to apply on the high seas as well as within their EEZ.
3. The agreement specifies the duties of the flag states with respect to their vessels fishing on the high seas for straddling fish stocks and highly migratory fish stocks.
4. The agreement contains detailed rules on the establishment and operation of subregional or regional fisheries management organizations or arrangements (RFOs) which are to establish conservation and management measures on the high seas. Parties to the agreement are obliged to join RFOs or agree to comply with the measures they create. Otherwise they will not be allowed to fish in the areas where these management and conservation measures apply.
5. The agreement introduces innovative provisions on enforcement for non-flag states, and a new concept of port-state jurisdiction in respect of fishing vessels.
6. The agreement contains detailed provisions on peaceful dispute settlement. Page 23a number of other issues to be addressed at the national level-notably the implementation of those provisions of the agreement that require state parties to impose duties and obligations directly on natural or legal persons.
This section seeks to identify the issues contained in the Fish Stocks Agreement that require specific implementation at the national level. Drawing heavily on the practice of those states that have already passed national legislation, it also seeks to suggest ways in which the issues may be transposed into national law. Page 23
The Fish Stocks Agreement envisages the implementation of its norms at both the international and the national levels. Many of the norms it contains require development, adoption, and implementation within the context of an appropriate subregional or regional management organization, with competence to establish conservation and management measures for highly migratory fish stocks. The obligations of the individual state party under the agreement are therefore to ensure that its own legal system is able to provide the necessary legal means and modalities to accommodate the new concepts, the expanded jurisdictional powers, and other general requirements of the agreement, but also able to utilize these specifically in the context of the appropriate regional or subregional management organization. Although implementation at the international level is beyond the scope of this Guide, it will be necessary to refer to aspects of international implementation in order to provide some of the international legal context within which national implementation must operate.
In developing the national legal framework for implementing the Fish Stocks Agreement, however, a wise starting point would seem to be-as it is with the Compliance Agreement-to define what duties the agreement expects the national authorities to carry out and to decide which national authority is to be designated as responsible for doing so.
It seems highly likely that the national body designated to carry out the national actions and functions that are required to be performed by the national government under the Fish Stocks Agreement will be the same as that designated for the purposes of the Compliance Agreement. This is obviously a matter for national determination, but the designation of this authority and of its responsibilities would normally have to be a part of the national implementing legislation.
One example of this can be found in the draft OECS fisheries law:
This Act shall be administered by the [title] appointed pursuant to [relevant fisheries law] who shall be responsible for:
(1) Issuing fishing permits for fisheries on the high seas in accordance with further rules in chapter [x] of this Act. Page 24
(2) Maintaining a record of fishing vessels of [country] in respect of which high seas fishing permits have been issued including all information submitted during the application process.
(3) Maintaining a record of international conservation and management measures and sub-regional or regional fisheries management organizations which are recognized by [country].
(4) Where, following the conclusion of inspection measures in any high seas areas covered by a sub-regional or regional fisheries management organization, in accordance with section [x] of this Act, in respect of a fishing vessel of [country], it is alleged by a foreign State which is Party to the Fish Stocks Agreement that there is clear evidence that an offence has been committed under this Act, the Chief Fisheries Officer may authorize a foreign authorized officer to undertake enforcement measures in respect of that vessel under section [x].
(5) Where, following the conclusion of inspection measures in any high seas areas covered by a sub-regional or regional fisheries management organization, in accordance with section [x] of this Act, in respect of a fishing vessel of [country], it is alleged by a foreign State which is Party to the Fish Stocks Agreement that there is clear evidence that there has been a serious violation of international conservation and management measures [title] may authorize a national authorized officer to undertake enforcement measures in respect of that vessel under section [x].
(6) If [title] has reasonable grounds to believe that a foreign fishing vessel has engaged in activities that undermine the effectiveness of international conservation and management measures, [title]:
(a) shall provide to the appropriate authorities of the flag State of the vessel concerned such information, including evidentiary material, relating to those activities as may be necessary to assist the flag State to identify the vessel;
(b) when such foreign vessel is voluntarily in a port of [country], promptly notify the appropriate authorities of the flag State and, if requested by the flag State make arrangements to undertake such lawful measures as may be considered necessary to establish whether the vessel has been used contrary to the Fish Stocks Agreement.49
(c) The International Bank for Reconstruction and Development / The World BankPage 25
Article 5 of the Fish Stocks Agreement sets out the general principles that coastal states and states fishing on the high seas are to apply in order to conserve and manage straddling fish stocks and highly migratory fish stocks. Some of these principles simply restate...
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