The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was adopted in 1995, after two years of comprehensive negotiations. It was opened for signature on 4 December 1995 and remained open for one year, during which time it received 59 signatures, including those of all major fishing nations. It was originally envisaged that it would take approximately two years for sufficient States to ratify the agreement in order for it to enter into force. In actual fact, this process took six years to complete, with the agreement entering into force on 11 December 2001, following ratification by the thirtieth State, Malta. This guide first outlines the background leading to the adoption of the Agreement and then reviews the main provisions of the Agreement.

Background

The negotiation of the Fish Stocks Agreement was quite a lengthy process. The process essentially started at the United Nations Conference on Environment and Development (UNCED) in 1992. Although the issue was not considered comprehensively at UNCED, it was decided to call for an intergovernmental conference to be convened under UN auspices “with a view to promoting effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks.” Accordingly, in December 1992, the UN General Assembly adopted a Resolution establishing the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, which held its first session in April 1993. Although the Conference was originally authorized to meet for only one year, the work of the Conference, which involved six formal rounds of negotiation and numerous intersessional meetings of various degrees of formality, was not completed until August 1995. Over the six sessions, more than 130 States and one regional economic integration organization (the European Community) participated to some extent.

As might have been expected, considerable differences of opinion emerged during the Conference. At one extreme was the grouping of coastal States, which in general terms sought to secure enhanced coastal State jurisdiction over the resources of the high seas. At the other extreme was the distant water fishing group, which sought to limit any elements of such ‘creeping jurisdiction’. Particularly during the early stages of the Conference, the negotiations were marked by a pattern of accusation and counter-accusation as many coastal States placed the blame for the high seas fisheries collapses on the irresponsible fishing practices of distant water States, while these States pointed to instances of long-term mismanagement of stocks in areas under coastal State jurisdiction.

During the course of the negotiations, several issues caused considerable difficulty. These included: the geographical scope of the Agreement; compatibility of conservation and management measures inside and outside areas of national jurisdiction; general principles of fisheries cooperation and management, in particular the precautionary principle; duties of the flag State; port State responsibilities; and compulsory dispute settlement. During the early stages of the Conference there were also disagreements over the legal nature of the final document, which had not been determined by the General Assembly when it convened the Conference, with the coastal States generally preferring the negotiation of a treaty and the high seas group preferring the negotiation of a non-binding set of guidelines. The latter view was based on some genuine concerns that a treaty would either become so watered down as to be meaningless or would not be ratified by major fishing nations, but ultimately deepening concerns about the state of fish stocks and fears that some coastal States might otherwise take unilateral steps to extend their fisheries jurisdiction, tipped the balance of support in favour of a treaty.

The Agreement

The text which was finally negotiated by the Conference is comprehensive, innovative and authoritative, and contains a detailed elaboration of the basic duty to cooperate under the LOS Convention, and gives States some definite and substantial guidance as to how they should give effect to that duty. The Agreement is based on a number of essential features, namely: general principles for conservation and management; enhanced cooperation through and participation in regional organizations or arrangements; comprehensive provisions on enforcement, based primarily (but not exclusively) on the concept of responsible flag State jurisdiction; and the peaceful settlement of disputes. In some respects, the measures contained in the Agreement may be viewed as merely facilitating the implementation of the Convention regime, as the title of the Agreement would suggest. However, a large part of the Agreement should more properly be viewed as strengthening the regime or, in the case of some provisions can even be viewed as the development or extension of the Convention regime.

General Principles

Underlying the Agreement is a broad set of general principles, which contain the most detailed statements to date of the duties and responsibilities of States in relation to the conservation and management of straddling and highly migratory fish stocks [Article 5]. Some of these principles flow directly from provisions contained in the LOS Convention, such as the requirement to utilize the best available scientific evidence to maintain or restore stocks at levels which allow the production of the maximum sustainable yield [Art. 5(b)]. Other provisions, however, introduce new obligations and criteria. Among the criteria listed in Article 5 are requirements to: adopt measures to ensure the long-term sustainability of straddling stocks; apply the precautionary approach in accordance with Article 6; assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or dependent upon or associated with the target stocks; adopt, where necessary, measures for the conservation and management of species belonging to the same ecosystem or associated with or dependent upon the target stocks; minimize pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species and utilize selective, environmentally safe and cost-effective fishing gear and techniques; protect biodiversity in the marine environment; collect and share complete and accurate data concerning fishing activities, including vessel location and catch of target and non-target species; and implement and enforce conservation and management efforts through effective monitoring, control and surveillance.

Importantly, the general principles apply both within and outside areas under national jurisdiction [Art. 3]. Thus, within their EEZs, coastal States agree to abide by the general principles, laid down in Article 5, and to follow the precautionary approach to fisheries management, laid down in Article 6. This is an important exception to the trend of greater coastal State authority, although it is clear that the overall emphasis of the Agreement is to give a greater preference towards the coastal State.

Possibly the most important of the principles laid down is the duty to apply the precautionary approach [Art. 5(c), Article 6]. In general terms, the Agreement requires States to “apply the precautionary approach widely” to the conservation, management and exploitation of straddling stocks. This general obligation is to be achieved through the implementation of a number of more specific requirements, namely: improvement of the fishery decision-making process and sharing of the best scientific information available as well as implementation of techniques for dealing with risk and uncertainty; use of the guidelines for application of precautionary reference points, as set out in Annex II, and determination of stock specific reference points and the action to be taken if they are exceeded; consideration of uncertainties with respect to the biological and geographical characteristics of the stocks, as well as the environmental and socio-economic impacts of fishing activities; and establishment of data and research programs on environmental impact on the ecosystem and protection of marine habitats of special concern [Art. 6(3)].

The guidelines in Annex II lay down a procedure whereby precautionary reference points are used to define acceptable levels of mortality and recruitment criteria. Two types of reference point are used, limit (or conservation) reference points and target (or management) reference points. Limit reference points “set boundaries which are intended to constrain harvesting within safe biological limits within which the stocks can produce maximum sustainable yield” [Annex II, para. 2]. Target reference points are set at some point lower than the limit reference point intended to meet management objectives. Maximum sustainable yield (MSY) is no longer, therefore, a target (a management objective) but an outer limit, with the intention being to keep all harvests at a defined point below MSY. Thus, management strategies are to ensure that target reference points are not to be exceeded on average and the risk of exceeding limit reference points is very low [Annex II, para. 5]. States are required to take measures to avoid exceeding reference points for target stocks and must take action without delay if they are exceeded and, in particular, if a stock falls below a limit reference point or is at risk of falling below such a reference point, conservation and management action should be taken to facilitate stock recovery [Art. 6(4) and Annex II, para. 5]. The Agreement further provides that in cases where there is scientific uncertainty, the absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures [Art. 6(2)]. In general terms, States are required to be more cautious where information is uncertain, unreliable or inadequate and in the case of new or exploratory fisheries, States are required to adopt cautious conservation and management measures until there are sufficient data for assessing the impact of the fisheries on the long-term sustainability of the stocks [Art. 6(2) and (6)].

The detailed provisions of Article 6 and Annex II if implemented widely and comprehensively have the potential to create vastly improved systems of fishery management. The difficulty of course arises, as in all risk assessment strategies, in selecting an appropriate reference point. The Agreement contains little guidance in this respect although States are required to take into account, inter alia, uncertainties relating to the size and productivity of the stocks, levels and distributions of fishing mortality and the impact of fishing activities on non-target and associated or dependent species as well as existing and predicted oceanic, environmental and socio-economic conditions [Art. 6(3)].

The duty to cooperate (compatible measures)

Some of the most fundamental differences of opinion at the Conference existed over the precise content of the duty to cooperate. On the one hand, coastal States argued that the Agreement should reflect the ‘special interests’ or even the ‘preferential rights’ of coastal States over straddling stocks adjacent to their EEZs, while, in contrast, the distant water fishing States argued that the Agreement should be based on, inter alia, the concept of ‘due regard’ for the interests of both flag and coastal States; the compatibility of measures across the whole range of stocks; and the priority of regional organizations. The balance that was ultimately struck reflected the distant water fishing States concerns, as the notion of preferential coastal State rights was rejected, although the text nevertheless incorporates a number of important concessions to the coastal State position, resulting in slight a “slight jurisdictional tilt” towards coastal States. 

The principal difference between the Agreement and the LOS Convention is that the Agreement requires States to cooperate for the purpose of achieving compatible measures. Article 7(2) provides States with a set of factors to be taken into account in the determination of compatible measures. These include a requirement to take into account conservation and management measures adopted by coastal States within their EEZs, in accordance with Article 61 of the LOS Convention; a requirement to ensure that measures established for the high seas do not undermine the effectiveness of measures taken by coastal States; a requirement to take into account previously agreed measures established by other States or by regional or subregional fisheries organizations or arrangements; and the consideration of other factors such as the biological characteristics of the stocks, the respective dependencies of coastal States and distant water fishing States and the geographical peculiarities of the region. This latter requirement alludes to enclosed and semi-enclosed seas, such as the Bering Sea “Donut Hole” and the Mediterranean and areas of high seas surrounded entirely by an area under the national jurisdiction of one State, namely the Sea of Okhotsk "Peanut Hole." (The duties of States whose vessels fish in such areas are elaborated upon in Articles 15 and 16). 

The Agreement does not go so far as to oblige States actually to reach an agreement, although Article 7 does provide a procedure to deal with the consequences of a failure to agree on compatible measures. Thus, under Article 7(3) States are required to “make every effort” to agree on measures “within a reasonable period of time,” but if no such agreement is reached, any of the States concerned may, under Article 7(4), bring the matter to compulsory and binding settlement, in accordance with Part VIII of the Agreement. Given that this could be a potentially slow process Article 7 provides that, pending an agreement on compatible conservation and management measures, the States concerned, “in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature” [Art. 7(5)]. 

Cooperation through regional fisheries organizations

Like the LOS Convention, the principal method by which States are to fulfil the duty to cooperate under the Agreement is through subregional and regional fisheries organizations. The Agreement builds considerably on the Convention regime, however, and contains several measures designed to improve the institutional structure of international fisheries management, through, broadly speaking, the strengthening of existing organizations and the creation of new organizations where none exist. Thus, where such organizations do exist, States are to give effect to their duty to cooperate by becoming a member of that organization or a participant in a regional arrangement or by agreeing to apply the regional conservation and management measures [Art. 8(3)]. There is also a further general requirement to cooperate to strengthen regional fisheries organizations in order to improve their effectiveness [Art. 13]. Where there is no regional organization or arrangement to establish conservation and management measures for a particular straddling stock, the relevant States are required to cooperate in order to establish an organization or arrangement for those stocks [Art. 8(5)].

The functions of new and existing regional organizations are specified in Articles 9 and 10. As to new organizations, Article 9 lays down various matters upon which States must agree, and factors they must take into account, when establishing such organizations. These include agreement on: the stocks to be covered, taking into account the biological characteristics of the stocks and the nature of the fisheries involved; the area of application, taking into account the characteristics of the region, including socio-economic, geographical and environmental factors; the relationship between the new organization and any relevant existing organizations; and the mechanisms by which the organization or arrangement will obtain scientific advice and review the status of the stocks, including, where appropriate, the establishment of a scientific advisory body. As to existing bodies, Article 10 lists a number of factors which States must take into account, such as the determination of participatory rights, the establishment of cooperative mechanisms for effective monitoring, control, surveillance and enforcement, agreement on decision-making procedures and the promotion of the peaceful settlement of disputes. Particular emphasis is placed on the collection and evaluation of scientific evidence and the reporting, verification, exchange and dissemination of data, as to which further duties and are set out in Article 14 and Annex I, which specifies at some length the standard requirements for the collection and sharing of data.

The Agreement contains a number of provisions on participation in regional fisheries organizations. The central provision is Article 8(3) which, after providing that any States fishing for the stocks on the high seas and the relevant coastal States are to give effect to their duty to cooperate by becoming a member of the regional fisheries organization or arrangement, adds that any States “having a real interest in the fisheries concerned” may also become members of such organizations or arrangements. No guidance is given on the meaning to be given to “real interest,” however, and it is not clear to what extent it goes beyond those States mentioned in the first sentence of Article 8(3) – i.e. relevant coastal States and States fishing on the high seas. Whatever the correct interpretation of “real interest” might be, it is at least clear that Article 8(3) establishes that distant water States have an equal right, in relation to coastal States, to participate in regional management organizations and arrangements. That right is underlined in the last sentence of Article 8(3) which states that the terms of participation of such organizations or arrangements shall not preclude any States with a real interest from membership or participation. This is important because such participation has not always been possible in the past.