The 1995 FAO Code of Conduct for Responsible Fisheries: Adopting,implementing or scoring results?

The paper presents the results of a major assessment of Code adoption and implementation in nine fishing countries in Asia (China, Thailand, Vietnam), Africa (Senegal, Guinea Bissau and Guinea) and in the Caribbean (Jamaica, Dominican Republic and Trinidad & Tobago), which are part of the international research project ECOST. The main findings are that the Code as an international policy instrument remains relevant and adaptable to the current international fisheries context, and that its guiding principles and provisions have been endorsed and adopted in almost unanimous fashion by the countries covered, and integrated into fisheries policy letters and legal frameworks. However, results also suggest that tackling the truly difficult issues in fisheries, such as combating illegal, unreported and unregulated (IUU) fishing or adjusting fishing overcapacity has been a lot less successful. The design and implementation of necessary measures often remains very weak in domains with important economic and political dimensions. The causes for this are attributed to a mix of administrative inertia, lack of political will and stamina, and short-sighted economic considerations.     

The EU restrictive trade measures against IUU fishing

The opportunities for operators to increase their revenue when illegal, unreported and unregulated (IUU) fishing catches are converted to currency through the market encourage the persistence and growth of this activity. It is often the same market that is targeted for the legal trade of fish. Thus, paradoxically, the market demand creates and incites it, at least from an economic point of view. To deter IUU fishing activities, some fish and fishery products importing countries have started to enact or implement additional regulatory measures, the goal of which is to tackle the problem from a new trade-related perspective. This contribution provides an analysis of various aspects of the market state competence. Within the framework of the European Union (rights and markets) the study analyses the emergence of regional trade-related measures and explore how they are linked to the international trade law regime especially the World Trade Organization rules. Finally, the paper draws implications for the market state measures and considers their limits and potential in combatting IUU fishing.     

International trade law compatibility of market-related measures to combat illegal,unreported and unregulated (IUU) fishing

Measures to combat illegal, unreported and unregulated (IUU) fishing increasingly seek to constrain access to markets. These measures include enhanced seafood traceability and catch documentation schemes, the blocking of port access and landings, the identification and assessment of vessels engaged in IUU fishing and the prohibition on imports, transhipments or trade of fish products. It is important that such measures are in accordance with international law, including the agreements of the World Trade Organisation (WTO). This article evaluates a range of market-related measures for compatibility with international trade law, including the General Agreement on Tariffs and Trade (GATT) and the Agreement on Technical Barriers to Trade. The law requires measures to be non-discriminatory and, for certain technical regulations, not more trade-restrictive than necessary to achieve a legitimate objective. However, there are exceptions to these rules, including for measures relating to the conservation of exhaustible natural resources or for measures necessary for the protection of animal life or health, public morals, or to secure compliance with certain laws or regulations. While the design of current unilateral measures to combat IUU fishing appears to accord with trade law requirements, this article argues that there is scope for a wider and more collective approach. In this vein, new provisions in the recently concluded Trans-Pacific Partnership (TPP) are identified. The article concludes with recommendations for governments, international organisations, private actors and the global community wishing to take action in this area.     

Policy responses to IUU fishing in Northern Australian waters

Illegal, unreported and unregulated (IUU) fishing activities continue to thrive in the northern region of Australia's Fishing Zone (AFZ). Indonesian fishermen involved in IUU fishing in this area target specific marine species such as shark, reef fish, sea cucumber and trochus that are destined for the Asian market. Many of these marine species’ stocks are now at critical levels. Local communities based in Northern Australia, state and Federal governments are also concerned with issues of border security and quarantine measures that coincide with the IUU fishing activities. Whilst Australian and Indonesian governments continue to negotiate this pressing issue, international instruments, bilateral agreements and domestic policies are not deterring Indonesian fishermen from pursuing IUU fishing activities in the AFZ.     

Taiwan's response to international fisheries management after 2005 as influenced by ICCAT and fishers' perception

It is widely recognized that fishing states are obliged to exercise flag state responsibility over their vessels. In an attempt to become a responsible fishing actor, Taiwan has endeavored to manage its distant water fishing fleet in accordance with international fisheries management. However, the long-standing problems of illegal, unreported and unregulated (IUU) fishing, fish laundering, and fishing overcapacity, which remained unsolved during the 1990s and early 2000s, brought its management capability into doubt. Failure to address these problems undermined the credibility of all management measures and ultimately resulted in a recommendation adopted by International Commission for the Conservation of the Atlantic Tunas (ICCAT) in 2005. This recommendation significantly affected Taiwan's distant water fishing policy. This paper examines how Taiwan assimilated this outside force into its fishing policy as a new response to international fisheries management and how fishers perceived this response. It shows that Taiwan's efforts in controlling distant water fisheries marked a big change, specifically manifest in three noticeable actions - reducing excessive bigeye-targeted efforts, deterring IUU fishing, and strengthening fisheries management. The study advises that management of small tuna vessels be effectively exercised and recommends future actions on providing subsidies for fishers to partially offset costs incurred by rule compliance, streamlining their administrative work, enhancing communication with them, putting more enforcement and meaningful penalties in place. Finally, the study indicates the existence of an interaction in the international fisheries management scheme, potentially favoring Taiwan to bargain for fishing rights and a favorable status in the participation of regional fisheries management organizations (RFMOs) in the future if it continues to exercise effective control of distant water fisheries.     

An economic analysis of illegal, unreported and unregulated (IUU) fishing: Key drivers and possible solutions

The fight against illegal, unreported and unregulated (IUU) fishing activities has recently become a high priority in the international fisheries management agenda. While a number of academic contributions have sought to improve the understanding of the problem, most remain limited in scope. To help policy makers obtain a more comprehensive picture of the situation, the OECD Committee for Fisheries recently completed a study addressing the full economic dimensions of IUU fishing in an integrated manner. This paper presents the analytical framework developed by the OECD as well as some of the key results of the study regarding the causes of and the potential solutions to this widespread problem.     

Fragmentation in high seas fisheries: Preliminary reflections on a global oceans governance approach

Notwithstanding the wide range of actions taken to strengthen the legal regime of international fisheries, overexploitation and the risk of depletion of stocks have been strong concerns for decades. Indeed, the regime of international fisheries law is currently not rooted in sustainability, and it does not adequately take into consideration the impact of fishing activities on the wider marine environment. One of the main causes lies in fragmentation of international fisheries law: a lack of coordination between instruments and institutions, and gaps in effective coherent structures for fisheries management. Areas beyond national jurisdiction (ABNJ), including the high seas, are particularly prone to this lack of coordination and integration.One alternative to reach a durable management of high seas fisheries might be found in a ‘global oceans governance approach’. This paper explores how this approach could impact the fragmented regime of fisheries. It suggests that governance-based perspectives underline concepts rooted in adaptability and interactions, concepts that suggest to approach international fisheries law not as a static set of rules but as an evolutive process. Reflecting on an overarching goal of coordination and possible management challenges in ABNJ provides an interesting starting point to develop a comprehensive understanding of the impacts of oceans governance on the fragmented legal regime of high seas fisheries. We now need to see how to give effect to governance, a task that remains, at this point, a work in progress.     

海洋地球工程的研究进展与相关国际法探析

全球气候变化及其引发的负面影响是当今人类面临的最大挑战之一,地球工程因被认为是减缓甚至扭转气候变化的切实可行的方案之一而备受关注。为推动地球工程技术的发展和相关国际法的完善,文章分析海洋施肥、人工上升流、人工海洋碱化、海洋云增白和海底造墙5种海洋地球工程的技术原理、研究进展及其在具体实施中对现行国际法的挑战。研究结果表明:无论是处于理论模拟阶段还是处于实验阶段,上述海洋地球工程技术都显示其减缓气候变化的潜力,同时也存在对海洋环境和人类生活的潜在风险;由于科学的不确定性和国际法的模糊性,各项技术在实际应用中都存在与国际法的冲突或适用问题,但目前从科研实践角度分析具体技术涉及的相关国际法问题的研究较少;虽然应在国际法框架下进行探索性研究,然而目前有关地球工程技术的国际法在理论研究和实践应用中仍存在很多争议。因此,必须加强对地球工程技术的研究,将技术风险降到最低,并在科学探索中做好环境基线研究,完善技术探索的环境影响评估方法;随着旨在减缓气候变化的小规模地球工程研究得到越来越多的支持,更应明确地球工程技术在国际法中的地位,建立合理的法律框架,推进国际法的改进。     

Trade measures and the combat of IUU fishing: Institutional interplay and effective governance in the Northeast Atlantic

The use of trade measures to combat illegal, unreported and unregulated (IUU) fishing in the Northeast Atlantic has evolved from unilateral denial of the landing of fish taken outside international quota arrangements to a multilateral Scheme of Control and Enforcement under the North-East Atlantic Fisheries Commission (NEAFC). International trade rules have not constrained this development, mostly due to successful management of the interplay between international resource management and trade regimes. States protect resource management objectives from such constraint by inserting clauses that establish a normative hierarchy, or they employ various means for adapting IUU measures to the ‘environmental window’ of the global trade regime. The fact that regional states have introduced trade restrictions only when non-restrictive or less restrictive measures have failed enhances such compatibility, as do the gradual shift from unilateral to multilateral measures and the rise in transparency, openness and target-state involvement. None of those features reduces the effectiveness of regional trade measures; they minimize tension with trade commitments and largely strengthen their clout in the struggle to combat IUU fishing in the Northeast Atlantic.     

Assessment of IUU fishing for Southern Bluefin Tuna

Illegal, unreported and unregulated (IUU) fishing is recognized as one of the largest threats to the sustainability of the world's fisheries. This paper focuses on IUU fishing in the context of unreported catches by members or co-operating non-members of regional fisheries management organizations (RFMOs) and their implications for scientific assessments of stock status and management advice. A review of Japanese market statistics was undertaken in 2006 by an independent panel in relation to catches of southern bluefin tuna (SBT). Based on this review, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) concluded that very substantial and continuous unreported catches of SBT had been taken by longline vessels since at least the early 1990s. While uncertainty exists about the fleets contributing to these IUU catches, the assumption used within the CCSBT Scientific Committee is that a significant proportion of these were taken by Japanese longliners. Implications of these unreported catches for the stock assessments by RFMOs are discussed in light of the central role that Japanese vessel reported data have in the assessment of the world's tuna and billfish stocks. Results indicate that it is plausible that the unreported catches of SBT stem from the misreporting of catches as other tuna species and/or the location of fishing effort. The magnitude and extended period of the unreported SBT catches highlight the wide-spread risks of relying on fishery dependent logbook data in the absence of verification. An urgent need exists for minimum standards of verification of catch, effort and landing statistics for use in scientific assessments. The fisheries science community needs to be more pro-active in the development of such standards and the implementation of independent monitoring and verification. In addition, there is a need to reform the operation of the scientific bodies of RFMOs in terms of transparency, the treatment of uncertainty and the burden of proof if they are to be effective in providing objective scientific advice consistent with the intent of international agreements.     

Global scope and economics of illegal fishing

We present a conceptual model for the analysis of the costs and benefit aspects of the risk inherent in illegal, unreported and unregulated (IUU) activity. We then develop and present a map of IUU incidences as reported in the Fisheries Centre's Sea Around Us project IUU global database. This map shows that IUU activities are quite widespread geographically. We next present an analysis of the cost and benefit aspects of risks of IUU fishing. A key result of the study is that for the cases analyzed as a group; the expected benefits from IUU fishing far exceed the expected cost of being apprehended. For an assumed 1 in 5 chance of being apprehended, our calculations show that reported fines for the vessels apprehended will have to be increased by 24 times for the expected cost to be at least as much as the expected benefits.     

Cooperation and compliance control in areas beyond national jurisdiction

Past decades have shown a constant increase in the number of international agreements regulating marine areas. Environmental changes as well as technological developments resulting in an increased use of oceans ensure the need for further governance in the future of high seas. At the same time, compliance by States with international obligations remains a considerable challenge in international law. In particular, regulations governing areas beyond national jurisdiction (ABNJ) are at risk of not being obeyed due to factual challenges posed to the control of high seas territories and the (legal) limits of the law of the sea. This article evaluates a stronger cooperation between States through the incorporation of compliance control systems in agreements regulating ABNJ in order to enhance compliance by States. For this purpose, provisions on compliance control measures which have already been established in two agreements regulating ABNJ, namely the International Convention for the Regulation of Whaling and the United Nations Fish Stocks Agreement, are analyzed. It is argued that the incorporation of compliance control elements into agreements regulating ABNJ is a promising avenue to secure improved compliance among States Parties and further implementation of this approach is recommended.     

Law and fisheries reform: Legislative and policy developments in South African fisheries over the decade 1994–2004

Following the enactment of the Constitution in 1996, the South African government undertook a process of legal reform in the fishing sector. This led to the publication of a new fisheries policy endorsing equity and sustainability, as reflected in the Marine Living Resources Act. This paper examines efforts to implement the policy, particularly the objective of “transformation”, against the background of law reform in fisheries over the last decade. The discussion is located within the context of related domestic legal developments and current trends in international fisheries law. Methods for enhancing effective implementation of the new fisheries policy are highlighted.     

为违法捕捞提供便利行为的法律责任研究

随着近年来我国水产品市场需求的增大,违法捕捞案件逐年增多,且在实践中为违法捕捞提供便利行为也越发猖獗。由于立法的缺失,这种行为尚未受到法律的规制,行为人能够逃避应承担的法律责任,严重影响渔业捕捞秩序和渔业资源的可持续发展。文章阐述为违法捕捞提供便利行为的基本概念,分析在《中华人民共和国渔业法》中增设为违法捕捞提供便利行为法律责任的必要性和可行性,并提出法律责任的构成要素和立法建议。     

新时代法治渔村建设的挑战与出路

渔村治理现代化作为实现乡村振兴战略的重要组成部分,因其自身固有的发展特征,亟须进行法治化改革。这既是对全面依法治国方略在渔村治理的落实,也同新时代乡村治理体系的基本逻辑相符合。因此,新时代法治渔村建设需要中国特色社会主义法治价值的指引,法治价值同时为推进新时代渔村治理法治化,为渔村的政治、经济、社会发展以及生态文明建设等提供了重要的思想基础。法治价值的适用同样对于促进渔村渔业的高质量发展和改善传统渔村经济落后的局面具有重要意义,有必要在中国特色社会主义法治价值的指引下,找到新时代渔村良法善治的有效路径。     

Potential ecological and social benefits of a moratorium on transshipment on the high seas

One way that illegal, unreported, and unregulated (IUU) fish catch is laundered into the seafood market is through transshipments at-sea. This practice, which often occurs on the high seas (the areas of ocean beyond national jurisdiction), allows vessels fishing illegally to evade most monitoring and enforcement measures, offload their cargo, and resume fishing without returning to port. At the same time, transshipment at-sea can facilitate trafficking and exploitation of workers who are trapped and abused on fishing vessels. This study gives an overview of high seas transshipment as well as evaluates transshipment at-sea regulations across 17 Regional Fisheries Management Organizations (RFMOs), which are responsible for regulating fisheries on the high seas. Transshipment at-sea regulations have become increasingly strict in most RFMOs since the late 1990s. However, only five RFMOs have mandated a partial ban, and only a single RFMO, the South East Atlantic Fisheries Organization (SEAFO), has mandated a total ban on transshipment at-sea. A total ban on transshipment at-sea across all RFMOs would support the ability of oversight and enforcement agencies to detect and prevent IUU fishing and also likely reduce human trafficking and forced labor on the high seas.     

Conservation and the right to fish: International conservation NGOs and the implementation of the Voluntary Guidelines for securing Sustainable Small-Scale Fisheries

The Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSF-Guidelines) were agreed with extensive input from small-scale fishers themselves, and hold great promise for enhancing both small-scale fishers’ human rights and fisheries sustainability in a meaningful and context relevant manner. However, this promise will not be fulfilled without continued input from fishing communities as the SSF-Guidelines are implemented. This paper proposes that international conservation NGOs, with their extensive geographical and political networks, can act as a conduit for communication between small-scale fishing communities and other parties and thus catalyse implementation of the Guidelines. In order to do so, they will first need to demonstrate a genuine commitment to people-as-well-as-parks and the human rights based approach espoused in the SSF-Guidelines. This paper reviews current engagement of international conservation NGOs with human rights in fisheries; looks at their potential motivations for doing more; and identifies challenges in the way. It concludes with a proposal for how international conservation NGOs could play a critical part in catalysing the implementation of the SSF-Guidelines.     

Cooperation and unregulated fishing: interactions between customary international law,and the European Union IUU fishing regulation

The extent to which flag States are bound by the conservation rules of regional fishery management organisations is an important question in the quest to reduce unregulated fishing. The European Union implemented a trade suspension against Cambodia under Council Regulation 1005/2008, in response to unregulated fishing by Cambodian vessels in high seas areas managed by regional fishery management organisations. Limitations in the arguments underpinning the decision evidence the flaws of unregulated fishing as a legal concept, underlining the need for it to be appropriately interpreted and contextualised in the international legal framework. Clarity on the differences between conventional and customary sources of international legal obligation, and their implications for State consent, should guide the implementation of the Regulation to maximise the normative potential of resulting practices.     

Experimental catches and the precautionary approach: the Southern Bluefin Tuna dispute

Southern Bluefin Tuna (SBT) is a depleted stock with a rebuilding target and timeframe defined by the responsible management body (CCSBT). All recent stock assessments have found that the stock is depleted but large differences exist in estimates of recovery probabilities under current catches. In 1996, CCSBT adopted a set of principles and a process for considering experimental fishing, which are fundamentally consistent with an actively adaptive management policy. Substantial efforts to develop a program in line with these principles did not succeed, partially due to the lack of a decision-making framework. In 1998 and 1999, Japan conducted unilateral experimental fishing arguing that the additional substantial catches could reduce uncertainty in stock assessments and thus were justified. This led to international legal proceedings under UNCLOS, in which preliminary measures were issued preventing further unilateral experimental fishing (these were later rescinded when an UNCLOS arbitral tribunal found that it lacked jurisdiction in the dispute). This decision has been cited as a possible manifestation of industry's “worst fear with the implementation of the precautionary approach”. This paper examines the SBT dispute in relationship to adaptive management and the precautionary approach, Results of recent stock assessments indicate that the Japanese experimental fishing, even if successful, was unlikely to resolve the disparity in estimates of the recovery probabilities or provide an improved basis for management decision making. In this context, it is the absence of a management framework, rather than a fundamental problem with adaptive management, that challenges the compatibility of these experimental fishing catches and the precautionary approach. The real issue in the SBT situation is the standards and burden of proof required if experimental fishing is to be considered.     

Power Europe: EU and the illegal,unreported and unregulated tuna fisheries regulation in the West and Central Pacific Ocean

Illegal, unreported and unregulated (IUU) fishing activities are widely considered a main cause of unsustainable fisheries across the globe. The EU has taken a leading role in the fight against IUU fishing, using both its market and normative power to advance its EU IUU Regulation (no. 1005/2008) and wider fisheries sustainability agenda outside its territory. This paper examines how successful the EU has been in using its market and normative power to influence regulatory strategies and frameworks governing tuna fisheries in the Pacific Islands region of the Western Pacific Ocean. The results indicate that while the market power of the EU remains an influential factor, the diminishing normative power of the EU in WCPO is weakening any attempts to implement its IUU fishing regulation and Pacific Island nations have promoted their own regulatory agenda. We conclude that the changing asymmetries between market and normative power has led to a differentiated geography of regulatory uptake, and while market power will remain a dominant strategy for the EU, normative power, when exercised should focus on cooperation rather than ‘teaching’ the benefits of an EU regulatory approach.