Backgrounder
Backgrounder
The Agreement on High Seas Fishing: An Update
In the decade following the adoption of the 1982 United Nations Convention on the Law of the Sea, fishing on the high seas became a major international problem. The Convention gave all States the freedom to fish without regulations on the high seas, but coastal States, to which the Law of the Sea conferred exclusive economic rights, including the right to fish within 200 miles off their shores, began to complain that fleets fishing on the high seas were reducing catches in their domestic waters.
The problem centred on fish populations that "straddle" the boundaries of countries' 200-mile exclusive economic zones (EEZs), such as cod off Canada's eastern coast and pollack in the Bering Sea, and highly migratory species like tuna and swordfish, which move between EEZs and the high seas.
By the early 1990s, most stocks of commercially valued fish were running low, according to the Food and Agriculture Organization of the United Nations (FAO). As catches became smaller, coastal States complained that the industrial-scale fishing operations of the so-called "distant-water" States on the high seas were undermining their efforts to conserve and revitalize fish stocks within the EEZs.
Reports of violence between fishing vessels from coastal and distant-water States became increasingly frequent, especially during the "cod wars" of the 1970s. Several countries, including Britain and Norway, sent naval ships to protect fishing fleets on the high seas. Spanish fishers clashed with British and French driftnetters in what came to be known as the "tuna wars". Before the UN Agreement on Straddling and Highly Migratory Fish Stocks was finalized in October 1995, several coastal States had fired shots at foreign fleets. In the northern Atlantic, Canada seized and confiscated a Spanish boat and crew fishing in international waters just beyond the Canadian 200-mile limit.
The coastal States most concerned during the negotiations about the impact of high seas fishing on their domestic harvest include Argentina, Australia, Canada, Chile, Iceland and New Zealand. Six countries are responsible for 90 per cent of "distant-water" fishing: Russia, Japan, Spain, Poland, the Republic of Korea, and Taiwan province of China. The United States also does a significant amount of high-seas fishing, especially for tuna, and in recent years China has become a major fishing nation.
At the Earth Summit -- the UN Conference on Environment and Development, held in Rio de Janeiro in June 1992--Governments called on the United Nations to find ways to conserve fish stocks and prevent international conflicts over fishing on the high seas. The UN Conference on Straddling and Highly Migratory Fish Stocks held its first full meeting in July 1993. After six negotiating sessions, a legally binding Agreement was opened for signing on 4 December 1995.
"This Agreement gives us a tool for winning the battle to save the world's fish", Ambassador Satya N. Nandan of Fiji, the Conference Chairman, said at the close of the talks. "It confers on States both the right to fish and the obligation to manage fish stocks sustainably."
Commercial fishing operations are exceeding the ocean's ecological limits, unravelling an intricate web of marine life that makes the sea a vital part of the earth's life support system. Almost 70 per cent of all fish stocks are either fully to heavily exploited (44 per cent), over-exploited (16 per cent), depleted (6 per cent) or very slowly recovering from overfishing (3 per cent), according to the FAO.
In a third of the world's major fishing regions, the annual catch is down 20 per cent or more from peak years. Without sweeping changes in current fishing practices and remedial action to allow endangered fish stocks to regenerate, the world's fisheries face possible collapse.
Two major factors threaten the sustainability of straddling and highly migratory fish stocks: overfishing and the impact of human activities. Efforts to conserve and manage the long-term sustainability of fish stocks are undermined by overfishing, which is driven in part by the need for higher economic returns to compensate for over-investment in the industry and excess fleet capacity, which has been encouraged by generous government subsidies.
Human activities that imperil fish include oil spills; destruction of mangrove swamps and estuaries; industrial air pollution; and production of nutrients, pesticides and other materials that run off the land and pollute the oceans. Some fishing practices, such as using dynamite on coral reefs to kill fish, also destroy critical habitats. Introducing exotic species either accidentally or deliberately into a marine environment can also harm other species in the ecosystem.
Sound fisheries conservation and management practices are needed if the demand for food from the sea is to be met over the next two decades. Better knowledge of marine resources and environments, more select fishing practices, less wasteful processing facilities and improved training for personnel responsible for managing and conserving marine living resources are needed.
The United Nations "fish talks" focused on finding ways to reverse the decline in stocks of commercially valuable species of fish to ensure sustainable yields in the future. Central to the negotiations was how to ensure the "continuity" of fisheries management regimes between the EEZs and the high seas. Straddling and highly migratory fish stocks--which also include billfish, marlins, swordfish, oceanic sharks, horse mackerel and squid--inhabit both coastal areas and the high seas at various times during their life cycles.
At the Earth Summit, Governments also called on the United Nations to negotiate an agreement to reduce land-based sources of marine pollution. Under a programme of action adopted by the UN General Assembly in December 1995, States agreed to reduce ocean pollution caused by sewage, heavy metals, oil, pesticides, nutrients and litter, and to stop activities that physically alter and destroy marine habitats.
"Too many vessels chasing too few fish" is how Ambassador Nandan, Chairman of the Conference, characterizes the problem. According to the FAO, the size of the world's fishing fleet increased at twice the rate of the increase in the global marine catch between 1970 and 1990. This explosion in the number of fishing vessels is what has helped undermine the sustainability of fisheries and the viability of the fishing industry itself.
Simply put, the fishing industry is overcapitalized. Some 46 per cent of revenue from the "landed catch" is now absorbed as return on investment. Over-investment in previous years produced too many boats, many of which are now aging and economically inefficient to operate. To break even, they must bring in ever-larger catches. Many fleets continue to operate only with the support of State subsidies. Worldwide, government subsidies to the fishing industry total some US$ 54 billion annually.
The Law of the Sea was expected to lead to a reduction in the number of distant-water fishing fleets. Instead, companies began to use refrigerated factory trawlers or "mother ships" that allow fleets to travel vast distances from the home country and to stay at sea for longer periods without having to return to shore. The fleets undermine the livelihoods of local fishers and deprive poor people in coastal areas of a primary source of sustenance. As global fish stocks decline, seafood becomes an increasingly expensive item for the rich and a rarity for the poor.
Typically, fleets on the high seas use non-selective fishing equipment, which indiscriminately sweeps up everything in its path -- undersize target species and non-target species and other marine life such as mollusks, jellyfish, turtles and porpoises. This "by-catch", currently estimated at 27 million tonnes annually, is thrown back into the ocean and the creatures are usually too damaged to survive.
The negotiations focused on the conflict between the coastal and distant-water fishing States. By mid-1993, Canada had declared a moratorium on cod fishing off its Atlantic coast until stocks were able to regenerate, putting between 20,000 and 30,000 fishers out of work. In the United States, fisheries for Atlantic haddock, cod and flounder and for Pacific salmon virtually collapsed. Iceland cut back its domestic fishing by 50 per cent because of depleted stocks. Meanwhile, unregulated foreign fleets continued to fish just off these countries' boundaries.
Coastal States argued that the high social and economic cost at home of fishermen out of work in order to preserve fish stocks could not be supported if foreign fleets continued to fish without restrictions on the high seas. Russia mounted military surveillance to keep Chinese, Japanese, Republic of Korea and Polish boats from overfishing pollack in the hotly contested Peanut-Hole, a small area of international water surrounded by Russian seas. In the South Pacific, island States tried to stop Taiwanese and Korean fishers poaching tuna. At the same time, distant-water States pointed to research that suggested coastal States were not sustainably managing stocks within their zones.
At first, many countries were reluctant to accept the need for a legally binding agreement. But as talks progressed, "most coastal States realized the time had come for a meaningful international agreement and the distant-water fishing States understood very well that it was time to either play by a set of internationally agreed upon regulations or face anarchy on the high seas", according to Brian Tobin, who spoke in his capacity as Canada's Minister of Fisheries and Oceans.
Officially, the treaty is the "Agreement for the implementation of the provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks". It was opened for signing on 4 December 1995 and will become legally binding after ratification by 30 countries, a process which could take two years. Four years after it takes effect, the United Nations will hold a review conference to examine implementation.
"The freedom to fish on the high seas no longer exists as it did under the old law of the sea. It is no longer a free-for-all", Ambassador Nandan said at the close of negotiations. Governments would be required to cooperate to regulate high seas fishing or their vessels would not be allowed to fish.
The 50-article Agreement legally binds countries to conserve and sustainably manage fish stocks and to settle peacefully any disputes that arise over fishing on the high seas. Specifically, the treaty:
Responsibility for regulating and enforcing sustainable fishing practices falls to the regional fishing organizations, which must also collect, report, verify and exchange data on catches. On the basis of a periodic review of the status of fish stocks, they will allocate quotas for States fishing on the high seas.
The Agreement aims to make the fishing industry more transparent. Fishers are obliged to report, through their Governments to the FAO and regional fishing organizations, the size of catches and the amount of fish they discard. Deliberate under-reporting, which is thought to be widespread, will be monitored by other States, which all have the right to board and inspect vessels to ensure compliance with regional agreement.
Because data for many stocks do not exist or are unreliable, the Agreement calls for Governments to use the "precautionary principle" in devising conservation regimes. Regional organizations have the right to impose quotas or restrictions on fishing if they suspect that a stock is in danger of full exploitation. The precautionary principle, which obliges Governments to act conservatively if there is reason to suspect that serious damage is being done to the environment, underlies all of the Earth Summit agreements.
Only States that agree to adhere to the conservation and management measures adopted by the regional organizations will have access to the fishing grounds administered by those organizations, but boats of all States are subject to the Agreement, whether or not they are party to it. Under international law, a country which does not ratify an international agreement cannot be bound by its provisions. However, the Agreement devolves responsibility for regulating and enforcing sustainable fishing practices to regional organizations, which can take action against any boat that undermines the agreed conservation regime.
Any State that is a member of a regional fisheries organization can enforce the terms of the Agreement against any State wishing to fish in the area. In areas where no regional organizations exist, States concerned about declining fish stocks are expected to organize their establishment. The question of which States are eligible to join regional organizations was left to the organizations to decide.
The Agreement breaks new ground in international law. Most maritime law is enforced by the State that registers the vessel -- the "flag State". The Agreement addresses situations where ships on the high seas are too distant from their flag State to be adequately supervised or where the flag State is unwilling or unable to police its vessels. It gives any country that is a member of a regional fishing organization the right to board and inspect vessels of any other States fishing in the area in order to ensure that regional quotas and conservation measures are being followed.
Where there are reasonable grounds for believing that a fishing vessel is violating conservation rules, the inspecting State can notify the flag State. If the flag State does not respond within three working days--during which time the inspectors are permitted to stay on board -- the inspecting State can require the vessel to go to the nearest appropriate port for further action. If the flag State feels that enforcement measures have been taken unjustifiably, it can begin dispute-settlement procedures, as outlined in the Agreement.
The Agreement calls for the compulsory and legally binding settlement of high seas fishing disputes by a third party. States can choose from options established under the Law of the Sea, which include appeal to the International Tribunal on the Law of the Sea, the International Court of Justice or an ad hoc tribunal set up to arbitrate particular disputes.
During the negotiations, the right to board and inspect fishing vessels in international waters proved controversial. Distant-water States, including members of the European Union (EU), felt that the issue should be determined by regional fishing organizations. Coastal States maintained that the right to board and inspect must be included in the international agreement, since it is essential for ensuring compliance with conservation measures. The EU expressed the fear that the practice could lead to harassment and the use of force on the high seas. It said it would seek more specific conditions from regional fishing organizations.
The most notorious non-selective equipment includes nets large enough to envelop twelve 747 airliners and capable of catching up to 200,000 pounds of fish at each setting; and lines up to 80 miles long that carry some 3,000 hooks. In addition to target fish, "longlines" also capture and drown scores of large seabirds, such as albatrosses and petrels, which are attracted to the baited hooks and pulled under by weighted lines.
One year after signing of the Agreement, little has been done to implement its provisions. In a report to the United Nations General Assembly in December 1996, the FAO and the WWF identified reasons for the slow progress and sounded a new alarm over the state of the world's fishing. According to the FAO, levels of fish stocks have not improved since the early 1990s. Many commercially valuable stocks are still subject to heavy and sparsely regulated fishing, and some stocks continue to be overfished.
Among the problems are:
Among the States that have not signed the Agreement are some of the world's largest fishing nations, including Chile, Mexico, Peru, Poland, Thailand and Viet Nam. The WWF also points out that several States that played key roles in the negotiations have not ratified the Agreement and that some countries, such as Argentina, are now arguing that the Agreement does not apply to their regional organizations. The WWF said that the United Nations should, as a priority, set up a mechanism to ensure implementation of the Agreement by regional organizations.
For further information contact:
Development and Human Rights Section
Department of Public Information
Room S-1040
United Nations
New York, NY 10017
Tel.: (212) 963-3771
Fax: (212) 963-1186
E-mail: vasic@un.org
Published by the United Nations Department of Public Information * DPI/1871/SD--February 1997