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POSTMODERN INTERNATIONAL FISHERIES LAW, OR WE ARE ALL COASTAL STATES NOW

  • Andrew Serdy (a1)
Abstract

International fisheries law is no longer driven by the clash of interests between coastal and distant-water fishing States, but is increasingly about how States in existing international fisheries, mostly with some degree of responsibility for their depletion, are striving to exclude newcomers. The residual freedom of fishing on the high seas is an obstacle to regulation by international commissions since States outside are not bound by treaties to which they are not party—which in turn creates a disincentive for States inside to accept the necessary restraints. Rules to limit entry to international fisheries are therefore now needed, and articles 8 and 17 of the UN Fish Stocks Agreement come close to this, but their transformation into custom (or that of regulations adopted by fisheries commissions into objective regimes) so as to bind non-parties is being stunted by commissions' self-serving views on what cooperation with them by new entrants to the fisheries entails for the latter. The result is that the modern arguments for exclusion of newcomers bear an uncomfortable resemblance to the discredited 1950s abstention doctrine. This article suggests why those arguments are now meeting little resistance, despite being advanced by States collectively unwilling even to restore depleted stocks to the biomass corresponding to their maximum sustainable yield, as the doctrine would have required (and the current law also does).

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Corresponding author
Email: A.L.Serdy@soton.ac.uk.
References
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1 LB Sohn and JE Noyes, Cases and Materials on the Law of the Sea (Transnational Publishers, Ardsley, New York, 2004) 755.

2 New York, 4 December 1995; 2167 UNTS 3.

3 On the issues that brought these matters to a head see RR Churchill and AV Lowe, The Law of the Sea (3rd edn, Manchester University Press, Manchester, 1999) 305–308.

4 United Nations (UN) Doc A/CN.4/42 (10 April 1951), Deuxième rapport sur la haute mer par J.P.A. François, rapporteur spécial, reprinted in Yearbook of the International Law Commission (1951), Vol II (‘ILC Yearbook 1951/II’) (UN, New York, 1957) 88, para 78.

5 Montego Bay, 10 December 1982; 1833 United Nations Treaty Series (UNTS) 3. See text between nn 25 and 29.

6 For example MH Nordquist, SN Nandan and S Rosenne (eds), United Nations Convention on the Law of the Sea, 1982: A Commentary (Virginia Commentary), vol III (Martinus Nijhoff, Dordrecht, Boston, London, 1995), state at 284 that at a significant informal meeting in 1975 the high seas articles were not discussed in their own right but treated merely as an adjunct to the EEZ provisions.

7 Vienna, 23 May 1969; 1155 UNTS 331. Art 34 states that ‘A treaty does not create either obligations or rights for a third State without its consent.’

8 A practical example is the chagrin doubtless caused to Japan by anecdotal reports of Taiwanese vessels moving onto southern bluefin tuna fishing grounds vacated by Japanese vessels after they had filled their quota for that species: see AE Caton, ‘Commercial and Recreational Components of the Southern Bluefin Tuna Fishery’ in RS Shomura, J Majkowski and S Langi (eds), Interactions of Pacific Tuna Fisheries: Proceedings of the First FAO Expert Consultation on Interactions of Pacific Tuna Fisheries, 3–11 December 1991, Nouméa, New Caledonia, Vol 2 (FAO Fisheries Technical Paper No. 336/2; FAO, Rome, 1994) 361.

9 Mendelson, MH, ‘Fragmentation of the Law of the Sea’ (1988) 12 Marine Policy 199.

10 See text between nn 35 and 36.

11 See Rayfuse, R, ‘The United Nations Agreement on Straddling and Highly Migratory Fish Stocks as an Objective Regime: A Case of Wishful Thinking?’ (1999) 20 Australian Yearbook of International Law 278; R Barnes, ‘Entitlement to Marine Living Resources in Areas beyond National Jurisdiction’ in EJ Molenaar and AG Oude Elferink (eds), The International Legal Regime of Areas Beyond National Jurisdiction: Current and Future Developments (Martinus Nijhoff, Leiden, 2010) 134.

12 Report of the Fourth Meeting of the Permanent Working Group for the Improvement of ICCAT Statistics and Conservation Measures (PWG) (ICCAT-PWG4 Report; Annex 6–5 to Fourteenth Regular Meeting of the Commission, Madrid, November 10–17, 1995 (‘ICCAT14 Report’)), in ICCAT, Report for biennial period, 1994–95 Part II (1995), vol 1 (‘ICCAT Green Book 1996/1’) 196. The latter term is used in the documents of two other commissions to guide expectations of new members, quoted at (n 103) and (n 105) respectively.

13 Scheiber, HN, ‘Origins of the Abstention Doctrine in Ocean Law: Japanese-US Relations and the Pacific Fisheries, 1937–1958’ (1989) 16 Ecology Law Quarterly 2931; WT Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clarendon Press, Oxford, 1994) 156–157.

14 Tokyo, 9 May 1952, 205 UNTS 65. For a general history of the abstention doctrine see for example Scheiber (n 13) 36–90; S. Oda, International Control of Sea Resources (2nd edn, Martinus Nijhoff, Dordrecht, Boston and London, 1989) 67–71, 85–90 and 124–127, Yamamoto, S, ‘The Abstention Principle and its Relation to the Evolving International Law of the Sea’ (1967) 43 Washington Law Review 49; Herrington, WC, ‘In the Realm of Diplomacy and Fish: Some Reflections on the International Convention on High Seas Fisheries in the North Pacific Ocean and the Law of the Sea Negotiations’ (1989) 16 Ecology Law Quarterly 101.

15 See the US comment on the ILC's 1955 provisional articles on the high seas, in Yearbook of the International Law Commission (1956) Vol II (‘ILC Yearbook 1956/II’) (UN, New York, 1957) 93. The draft articles themselves are in Report of the International Law Commission covering the work of its seventh session, 2 May–8 July 1955 (UN Doc A/2934), reprinted in Yearbook of the International Law Commission (1955) Vol II (UN, New York, 1960) 29–31.

16 See generally WM Chapman, ‘The United States Fish Industry and the 1958 and 1960 United Nations Conferences on the Law of the Sea’ in LM Alexander (ed), The Law of the Sea: International Rules and Organization for the Sea: Proceedings of the Third Annual Conference of the Law of the Sea Institute June 24–June 27, 1968, University of Rhode Island (University of Rhode Island, Kingston, 1969) 35.

17 See the discussion in UN Doc A/CONF.10/6, Report of the International Technical Conference on the Conservation of the Living Resources of the Sea, Rome, 18 April–10 May 1955 (UN, New York, 1955) 7–8 (paras 60–66).

18 ibid 7, para 61.

19 ibid 9, para 79.

20 See the summary record of the ILC's 356th meeting, 30 May 1956, in Yearbook of the International Law Commission (1956) Vol I (‘ILC Yearbook 1956/I’) UN, New York, 1956) 123 (para 47); Chapman (n 16) 48; Herrington (n 14) 116.

21 See the ILC's commentary on art 53 of its Draft Articles in Report of the International Law Commission covering the work of its eighth session, 23 April–4 July 1956 (UN Doc A/3159), reprinted in ILC Yearbook 1956/II (n 15) 290.

22 The resolution forms the annex to UN Doc A/CONF.13/L.21, reprinted in UN, United Nations Conference on the Law of the Sea, Official Records, Volume V: Plenary Meetings (UN, New York, 1958) 162. On the fate of the abstention principle see also Scheiber (n 13) 90–94; Herrington (n 14) 108–117.

23 Johnson, R, ‘The Japan-United States Salmon Conflict’ (1967) 43 Washington Law Review 1, 29. For a persuasive criticism of the principle see Oda (n 14) 8990 (‘very similar to acquisitive prescription … completely contrary to the concept of freedom of the high seas’).

24 S Oda and H Owada (eds), The Practice of Japan in International Law 1961–1970 (University of Tokyo Press, Tokyo, 1982) 131.

25 Protocol amending the International Convention for the High Seas Fisheries of the North Pacific Ocean (Tokyo, 25 April 1978); 1207 UNTS 325.

26 HG Knight, Managing the Sea's Living Resources: Legal and Political Aspects of High Seas Fisheries (Lexington Books, Lexington MA and Toronto, 1977) 43.

27 Geneva, 29 April 1958; 450 UNTS 11.

28 UN Doc A/AC.138/53 (undated), reprinted in Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond National Jurisdiction: General Assembly Official Records, Twenty-Sixth Session, Supplement No. 21 (A/8421) (UN, New York, 1971) 117 (art 5).

29 UN Doc A/AC.138/SC.II/L.21 (undated), reprinted in Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond National Jurisdiction: General Assembly Official Records, Twenty-Eighth Session, Supplement No. 21 (A/9021), Vol III (UN, New York, 1973) 21 (art 16).

30 Burke's interpretation (n 13) at 214 is that ‘Article 116 appears to introduce a drastic change in high seas fishing rights by providing for a priority in coastal state rights and interests affecting high seas fishing states.’, elaborated at 220–224. The degree of that subordination is also canvassed in F Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge University Press, Cambridge, New York, 1999), passim but esp 62–72.

31 From the coastal State's point of view art 61 is expressed in mandatory terms, the auxiliary verb ‘shall’ denoting an imperative duty or obligation (see ‘Note on the use of the word ‘shall’', in SN Nandan and S Rosenne (volume editors), Virginia Commentary, Vol II (Martinus Nijhoff, Dordrecht/Boston/London, 1993) xlv–xlvi).

32 As urged by Virginia Commentary (n 6) Vol III, 309–310.

33 J-P Lévy and GG Schram (eds), United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: Selected Documents (Martinus Nijhoff, The Hague, Boston and London, 1996) 9. Addressing the General Assembly the day after UNFSA was opened for signature, the Canadian Minister for Fisheries, Mr Tobin, went so far as to say that the high seas fisheries provisions of UNCLOS were ‘stated in such general terms that they are not a practical guide for States in the conduct of their international relations’: UN Doc A/50/PV.80 (5 December 1995) 6.

34 Washington DC, 16 June 1994; (1995) 34 ILM 67.

35 SB Kaye, International Fisheries Management (Kluwer Law International, The Hague and London, 2001) 322.

36 Molenaar, Accord EJ, ‘The Concept of ‘Real Interest’ and Other Aspects of Co-operation through Regional Fisheries Management Mechanisms' (2000) 15 IJMCL 475, 498499, where he warns that yielding in this way to their members' ‘resentment’ at ‘having to accept diminishing shares as a consequence of new entrants’ may be self-defeating. This is because the obligations under article 17(1) and (2) of UNFSA to refrain from fishing the stock concerned would not be opposable to any State barred from participation for lack of an overly narrowly defined real interest, and any dissuasive measures taken by those members pursuant to article 17(4), or boarding and inspection of new entrants' fishing vessels under arts 21 and 22, would be unjustified.

37 As is the case in the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Honolulu, 5 September 2000); 2275 UNTS 43 (Honolulu Convention)—see also text at (n 126) and (n 139).

38 Attempts in the late 1990s to define ‘real interest’ in what became the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (Windhoek, 20 April 2001); 2221 UNTS 189, and by a Working Group of the Northwest Atlantic Fisheries Organization (NAFO), were similarly unsuccessful.

39 Created by the International Convention on the Conservation of Atlantic Tunas (Rio de Janeiro, 14 May 1966); 673 UNTS 63.

40 R Applebaum, ‘The Straddling Stocks Problem: The Northwest Atlantic Situation, International Law, and Options for Coastal State Action’ in AHA Soons (ed), Implementation of the Law of the Sea Convention through International Organizations: Proceedings of the 23rd Annual Conference of the Law of the Sea Institute, June 12–15, 1989, Noordwijk aan Zee, The Netherlands (Law of the Sea Institute, Honolulu, University of Hawaii, 1990) 290.

41 Created by the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (Ottawa, 24 October 1978); 1135 UNTS 369.

42 Applebaum (n 40) 291–292.

43 UN Doc A/CONF.164/L.11 (14 July 1993), Draft Convention on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks on the High Seas (submitted by the delegations of Argentina, Canada, Chile, Iceland and New Zealand), reprinted in Lévy and Schram (n 33) 155.

44 UN Doc A/CONF.164/L.44 (23 June 1994), Presentation of the Working Paper for a Draft Convention on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks on the High Seas (submitted by the delegation of Ecuador), reprinted ibid 503 at 523.

45 Kaitala, V and Munro, GR, ‘The Conservation and Management of High Seas Fishery Resources Under the New Law of the Sea’ (1997) 10 Natural Resource Modeling 99.

46 ibid 99–100. The ultimate omission of this concept from UNFSA is, however, less likely to have been for this reason than for the opposite one: the very idea of waiting is incompatible with States' political need for instant gratification, exemplified by the high implied discount rates in their fisheries: see Serdy, A, ‘Accounting for Catch in Internationally Managed Fisheries: What Role for State Responsibility?’ (2010) 15 Ocean and Coastal Law Journal 7778.

47 R Falloon (with the assistance of TM Berthold), ‘Individual Transferable Quotas: the New Zealand Case’, in Organisation for Economic Co-operation and Development, The Use of Individual Quotas in Fisheries Management (OECD, Paris, 1993) 57.

48 Created by the Convention for the Conservation of Southern Bluefin Tuna (Canberra, 10 May 1993); 1819 UNTS 359.

49 A similar issue arises under the instruments establishing formalized cooperation procedures in several of the commissions. Representative examples of this are paras 4 to 6 of the CCSBT's ‘Resolution to Establish the Status of Co-operating Non-Member of the Extended Commission and the Extended Scientific Committee’ (Attachment 7 to Report of the Extended Commission of the Tenth Annual Meeting of the Commission, 7–10 October 2003, Christchurch, New Zealand (Appendix 3 to CCSBT, Report of the Tenth Annual Meeting of the Commission, 7–10 October 2003, Christchurch, New Zealand, <http://www.ccsbt.org/docs/pdf/meeting_reports/ccsbt_10/report_of_ccsbt10.pdf>)), which require the applicant for cooperating non-member status to make and annually reaffirm a written ‘commitment to … abide by conservation and management measures and all other decisions and resolutions adopted in accordance with the [1993] Convention’, and Article 34(1) of the latest (2010) North-East Atlantic Fisheries Commission (NEAFC) Scheme of Control and Enforcement, <http://www.neafc.org/system/files/scheme_2010.pdf>, the latest in a succession of instruments containing such a provision, by which the applicant must ‘[u]ndertake to respect the provisions of this Scheme and all Recommendations established under the Convention [by which NEAFC was created: see n 104]’. Contrast the prior practice of ICCAT in Taiwan's case, where Taiwan was given a list of decisions with which it was expected to comply: ‘ICCAT Chairman's Letter to Taiwan Regarding its Fishing Activities in the Atlantic Ocean & Mediterranean Sea’ (Appendix 3 to ICCAT-PWG4 Report), in ICCAT Green Book 1996/1, (n 12) 205.

50 Korea delayed its accession to the Convention until it had negotiated a future national allocation acceptable to it; this may be a reflection of its bruising experience as a new entrant at the hands of NAFO, (n 102) and accompanying text.

51 Report of the Meeting of the Conservation and Management Measures Compliance Committee (Annex 10 to Proceedings of the 20th Regular Meeting of the International Commission for the Conservation of Atlantic Tunas (Antalya, Turkey–November 9 to 18, 2007)), in ICCAT, Report for biennial period 2006–07 Part II (2007)—Vol.1, 212 at 214. In other words, on this interpretation Belize could have objected at the time it became party to the 1966 Convention, in 2005: see the status list maintained by the FAO as depositary at <www.fao.org/Legal/treaties/014s-e.htm>.

52 Proceedings of the Third Regular Meeting of the Council, Madrid, Spain, November 20–26, 1974, in ICCAT, Report for biennial period, 1974–75 Part I (1974), 33 para 14.3; Morocco agreed: ibid para 14.10.

53 ‘Statement by South Africa to Panel 4 on South Atlantic Swordfish Allocations’ (Appendix 10 to Reports of the Meetings of Panels 1 to 4 (Annex 9 to 16th Regular Meeting of the Commission, Rio de Janeiro, Brazil—November 15 to 22, 1999 (ICCAT16 Report))), in ICCAT, Report for Biennial period, 1998–99 Part II (1999)—Vol.1 (ICCAT Green Book 2000/1) 185.

54 See Report of the 2nd ICCAT Working Group on Allocation Criteria (Madrid, Spain—April 6 to 8, 2000) (Annex 6 to Proceedings of the 12th Special Meeting of the International Commission for the Conservation of Atlantic Tunas (Marrakech, Morocco—November 13 to 20, 2000) (ICCATSM12 Report)), in ICCAT, Report for biennial period, 2000–01 Part I (2000)—Vol.1 (ICCAT Green Book 2001/1), 89 para 5.78.

55 ibid.

56 ICCAT14 Report, in ICCAT Green Book 1996/1 (n 12) 56 (para 12.4); ‘Statement by the Observer from Iceland’ (Annex 5–3 to ICCAT14 Report), ibid 101. The 1966 Convention neither provides for reservations nor prohibits them.

57 ‘Statement by Iceland on Eastern Bluefin Tuna’ (Appendix 2 to Reports of the Meetings of Panels 1 to 4 (Annex 7–1 to Report of Tenth Special Meeting of the Commission, San Sebastian, November 22–29, 1996)), in ICCAT, Report for biennial period, 1996–97 Part I (1996)—Vol.1, 133–134.

58 ‘Statement by Iceland on Atlantic Bluefin Tuna’ (Annex 6–7 to Report of the Fifteenth Regular Meeting of the Commission, Madrid, Spain—November 14 to 21, 1997 (ICCAT15 Report)), in ICCAT, Report for biennial period 1996–97 Part II (1997)—Vol.1 (ICCAT Green Book 1998/1), 90.

59 ‘Resolution by ICCAT on Becoming a Cooperating Party, Entity or Fishing Entity’ (Annex 5–17 to ICCAT15 Report)), ibid, 79.

60 ‘Statement by the Observer from Iceland on the Status of the Bluefin Tuna Stock’ (Annex 6-E to Eleventh Special Meeting of the Commission, Santiago de Compostela, Spain—November 16 to 23, 1998 (ICCATSM11 Report)), in ICCAT, Report for biennial period 1998–99 Part I (1998)—Vol.1 ‘ICCAT Green Book 1999/1’, 89.

61 ‘Statement by the Observer of Iceland to the Opening Plenary Session’ in ‘Statements to the Plenary Sessions’ (Annex 4 to ICCATSM12 Report), in ICCAT Green Book 2001/1 (n 54) 75.

62 ‘Commission Chairman's Letters to Non-contracting Parties, Entities or Fishing Entities Pursuant to the ICCAT Swordfish and Bluefin Tuna Action Plan and the 1998 Resolution on IUU Catches’ (Appendix 5 to Report of the 9th Meeting of the Permanent Working Group for the Improvement of ICCAT Statistics and Conservation Measures (PWG) (Annex 10 to ICCATSM12 Report)), in ICCAT Green Book 2001/1 (n 54) 255, 257. A letter identical to this, mutatis mutandis, was sent to Denmark, in respect of the Faroe Islands: ibid 256. See also the letters to Argentina (at 260), Belize (at 264–265), Barbados (at 260–261), Cambodia (at 265–266), Grenada (at 261), Honduras (at 266–267), Liberia (at 261–262), Malta (at 258), Mozambique (at 262–263), the Netherlands Antilles (at 263), Norway (at 263–264), St Vincent and the Grenadines (at 267), Turkey (at 258–259) and Vanuatu (at 259–260); most of these are Atlantic coastal States.

63 See also on UNCLOS art 116(b) T Skarphedinsson, ‘Management of the Utilization of Living Marine Resources’ in MH Nordquist, J Norton Moore and S Mahmoudi (eds), The Stockholm Declaration and Law of the Marine Environment (Martinus Nijhoff Publishers, The Hague, London and New York, 2003) 399, 401–402.

64 For a detailed exposition of the effect of art 7(2), see AG Elferink, Oude, ‘The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks’ (2001) 5 Max Planck Yearbook of United Nations Law 551.

65 Much of the argumentation of Orrego Vicuña (n 30) is an attempt to show that these States are under a misapprehension in this regard. If so, it persists: see the paper submitted by these and several other States to the 2006 Review Conference for this Agreement: UN Doc A/CONF.210/2006/12 (23 May 2006), Annex to the note verbale dated 22 May 2006 from the Permanent Missions of Argentina, Chile, Colombia, Cuba, Ecuador, El Salvador, Guatemala, Mexico and Peru to the United Nations addressed to the Secretariat.

66 ICCATSM11 Report, in ICCAT Green Book 1999/1 (n 60) 31–32 and 34; ‘Resolution by ICCAT to Establish a Working Group on Allocation Criteria’ (Annex 5–15 to ICCATSM11 Report) ibid 80.

67 Report of the Informal Multi-lateral Consultation on Southern Albacore (Cape Town, South Africa—April 23–24, 1998) (Appendix 14 to Reports of the Meetings of Panels 1 to 4 (Annex 10 to ICCATSM11 Report)), in ICCAT Green Book 1999/1 (n 60) 181.

68 ‘Statement by the Republic of Namibia on Coastal Developing States’ (Annex 6–4 to ICCAT15 Report), in ICCAT Green Book 1998/1, (n 58) 85.

69 In 1998, for example, Norway stated (ICCATSM11 Report (n 66) 29) that it had developed tuna fisheries in the 1950s which ceased in 1986 when the seasonal migration patterns of the stock failed, but, now that the stock was again present in neighbouring States' waters, it was studying the possibility of the old migration routes being re-established. Note that it would also be unwise to discourage voluntary cessation of fishing; this would reinforce the tragedy of the commons, by permitting those States that continue fishing to use their subsequent catch history to their own advantage.

70 See the statements of Denmark (in respect of the Faroe Islands) in 1999, in ‘Statements by Observers’ (Annex 4.2 to ICCAT16 Report), in ICCAT Green Book 2000/1, (n 53) 61–62 and several States in 2000: Annex 4 to ICCATSM12 Report, (n 61) 73–74 (Denmark), 76 (Mexico) and 77–78 (Norway); see also South Africa at Report of the 1st Meeting of the ICCAT Working Group on Allocation Criteria, Madrid, Spain, May 31 to June 2, 1999 (Annex 6 to ICCAT16 Report), in ICCAT Green Book 2000/1 (n 53) 85.

71 ‘Closing Statement by Japan’ in ‘Closing Statements’ (Appendix 7 to Annex 6 to ICCAT16 Report), ibid, 111 at 112.

72 ‘Opening Statement by Japan’ in ‘1st Meeting of the ICCAT Working Group on Allocation Criteria, Madrid, Spain, May 31 to June 2, 1999—Opening Statements’ (Appendix 3 to Report of the 1st Meeting of the ICCAT Working Group on Allocation Criteria, Madrid, Spain, May 31 to June 2, 1999 (Annex 6 to ICCAT16 Report)), in ICCAT Green Book 2000/1 (n 53) 104–105.

73 Annex 6 to ICCATSM12 Report (n 54) 82 para 5.7.

74 Annex 6 to ICCATSM12 Report (n 54) 82 paras 5.8 (Morocco), 5.9 (Namibia) and 5.14 (Morocco and Cape Verde).

75 ibid 85 paras 5.39 (EC), 5.40 (Namibia) and 5.41 (Brazil and South Africa). Brazil had previously equated historic catch shares with ‘quantitative responsibility’ for endangering the stock: ‘Statement by Brazil on the Concerns of Coastal States & Developing Nations’ (Annex 6-B to ICCATSM11 Report), in ICCAT Green Book 1999/1 (n 60) 86.

76 ‘Opening Statements to Allocation Criteria Meeting—2000’ (Appendix 3 to Annex 6 to ICCATSM12 Report), in ICCAT Green Book 2001/1 (n 54) 107.

77 ibid 87 para 5.66.

78 ibid 88 paras 5.74 (supporters) and 5.75 (opponents).

79 Report of the 3rd ICCAT Ad Hoc Working Group on Allocation Criteria (Brussels, Belgium—May 21 to 23, 2001) (Annex 6 to Proceedings of the 17th Regular Meeting of the International Commission for the Conservation of Atlantic Tunas (Murcia, Spain—November 12 to 19, 2001) (ICCAT17 Report)), in ICCAT, Report for biennial period 2000–01 Part II (2001)—Vol.1 (ICCAT Green Book 2002/1), 121 at 125 (paras 7.18 (South Africa) and 7.23 (Mexico, Norway, Iceland)).

80 ibid 124, paras 7.16 (EC) and 7.17 (Brazil).

81 ibid 125, para 7.24.

82 ibid 126, para 7.31.

83 ibid 126 paras 7.35 (Canada) and 7.36 (Japan).

84 ibid 128 para 7.60.

85 ibid 127 paras 7.46 and 7.50.

86 ‘ICCAT Criteria for the Allocation of Fishing Possibilities’ (Annex 8 to ICCAT17 Report), ibid 211; Report of the 4th ICCAT Ad Hoc Working Group on Allocation Criteria (Murcia, Spain—November 7 to 9, 2001) (Annex 7 to ICCAT17 Report), ibid 177, 191, para 6.85. In view of the consensus reached in the Working Group, the plenary apparently saw no need to endorse the criteria formally: see ICCAT17 Report, ibid 49, 51, paras 6.1 to 6.4.

87 ‘Statements to the Plenary Sessions’ (Annex 4 to Proceedings of the 13th Special Meeting of the International Commission for the Conservation of Atlantic Tunas (Bilbao, Spain—October 28 to November 4, 2002) (ICCATSM13 Report)), in ICCAT, Report for Biennial period 2002–03 Part I (2002)—Vol.1 (ICCAT Green Book 2003/1), 74–75. See also the statements of Denmark (‘seriously considering’ membership) and Norway (accession to the 1966 Convention imminent): at 85 and 86–87 respectively.

88 Reports of the Meeting of Panels 1–4 (Annex 13 to ICCAT17 Report), in ICCAT Green Book 2002/1 (n 79) 297 at 305, para 6.9.

89 ibid 315, para 6.c.5.

90 ‘Recommendation by ICCAT on South Atlantic Swordfish’ (Annex 9–13 to ICCAT17 Report), ibid 228.

91 Reports of the Meeting of Panels 1–4 (Annex 8 to Proceedings of the 18th Regular Meeting of the International Commission for the Conservation of Atlantic Tunas (Dublin, Ireland—17 to 24 November 2003) (ICCAT18 Report)), in ICCAT, Report for Biennial period 2002–03 Part II (2003)—Vol.1, 183.

92 ‘Statements by Turkey to Panel 2’ (Appendix 5 to Annex 8 to ICCAT18 Report), ibid 202 202–203, referring to ‘Recommendation by ICCAT for the Management of Bluefin Tuna Fishing in the Eastern Atlantic Ocean and Mediterranean Sea’ (Annex 18 to Proceedings of the Ninth Special Meeting of the Commission, Madrid, November 28–December 2, 1994), in ICCAT, Report for biennial period, 1994–95 Part I (1994)—Vol.1, 186.

93 Annex 8 to ICCAT18 Report, (n 90) 183.

94 ibid 184. The Recommendation in question was ‘Recommendation by ICCAT Concerning [sic] a Multi-Year Conservation and Management Plan for Bluefin Tuna in the East Atlantic and Mediterranean’ (Annex 8.8 to ICCATSM13 Report), in ICCAT Green Book 2003/1 (n 86) 167 (see esp at 168 (para 6)).

95 Annex 8 to ICCAT18 Report, (n 90) 183 (Turkey), 184 (EC).

96 ibid 188.

97 ‘South African Policy Statement to the 2003 Meeting of Panel 3 Regarding Development of an ICCAT Sharing Arrangement for South Atlantic Albacore’ (Appendix 11 to Annex 8 to ICCAT18 Report), ibid 207.

98 ibid 208. Note the paradox of the diminished usefulness of information from a State's catch data when catch is subject to a legal limitation such as a national allocation under a TAC. In that event, only a substantial shortfall in catch compared to the national allocation would actually affect the catch history.

99 ibid 209.

100 ‘Comments by Chinese Taipei on the Draft ICCAT Sharing Formula for South Atlantic Albacore’ (Appendix 12 to Annex 8 to ICCAT18 Report), ibid 211.

101 ibid.

102 GD Hurry, M Hayashi and JJ Maguire, Report of the Independent Review [of the] International Commission for the Conservation of Atlantic Tunas (ICCAT), September 2008 (ICCAT doc PLE-106/2008, <http://www.iccat.int/Documents/Meetings/Docs/Comm/PLE-106-ENG.pdf>), 4 and 18.

103 See Korea's expressions of dissatisfaction in NAFO/GC Doc. 98/2, Report of the Working Group on Allocation of Fishing Rights to Contracting Parties of NAFO and Chartering of Vessels Between Contracting Parties, 4–6 March 1998, Brussels, Belgium (unpublished, copy on file with author), 13 (Annex 5, ‘Opening Statement by the Representative of Korea’) and NAFO/GC Doc 99/9, Report of the General Council 21st Annual Meeting, 13–17 September 1999, Dartmouth, N.S., Canada (unpublished, copy on file with author), at 14 (see too at 43 (Annex 12, ‘Statement by the Representative of the Republic of Korea on Quota Allocating Practices (Mr G Lee))’); also Molenaar (n 36) 515.

104 ‘Resolution to Guide the Expectations of Future New Members with Regard to Fishing Opportunities in the NAFO Regulatory Area’ (Attachment 3 to General Council Annual Meeting 13–17 September 1999, Dartmouth, N.S., Canada), in NAFO, Annual Report 1999 (http://archive.nafo.int/open/ar/ar99.pdf) 62. The ‘Convention’ is the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, (n 41).

105 Created by the Convention on Future Multilateral Cooperation in the Northeast Atlantic Fisheries (London, 18 November 1980); 1285 UNTS 129.

106 See NEAFC, Report of the 22nd Annual Meeting of the NEAFC, 10–14 November 2003, Vol I, Main Report, <http://archive.neafc.org/reports/annual-meeting/docs/22neafc_annualmeeting_2003.pdf>, 26–27. The Guidelines are not included in the report of the 2003 Annual Meeting, but are available on the NEAFC website at <http://www.neafc.org/becomingacp>.

107 See NEAFC, ‘Meeting of the Working Group on the Future of the North-East Atlantic Fisheries Commission 10.00 a.m. 13 May 2003’, a draft summary record of the meeting, available on the NEAFC website at <http://archive.neafc.org/reports/future-neafc/docs/wgfn_2003.pdf>, 3, part of an informative discussion of the issue reported in extenso at 1–4.

108 G Munro, A van Houtte and R Willmann, The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects (FAO Fisheries Technical Paper 465; FAO, Rome, 2004) 47.

109 NAFO/GC Doc 99/4, Report of the Working Group on Allocation of Fishing Rights to Contracting Parties of NAFO and Chartering of Vessels Between Contracting Parties, 13–15 April 1999, Halifax, N.S., Canada (unpublished, copy on file with author), at 4, opposing the original US proposal ibid. which envisaged broader sharing should the stocks recover; see also Molenaar (n 36) 515–516.

110 Molenaar (n 36) 516. At 520 Molenaar contrasts this with the position in ICCAT, where those States apt to be excluded by such a policy were already in the commission and thus able to mount the obvious arguments to counter it. The argument of FAO Fisheries Technical Paper 465 (n 107), however, is that only in this way can existing members have sufficient incentive to limit their catches to allow the stocks' recovery at all.

111 NAFO/FC Doc. 09/21, Report of the Fisheries Commission and its Subsidiary Body (STACTIC), 31st Annual Meeting, 21–25 September 2009, Bergen, Norway, <http://archive.nafo.int/open/fc/2009/fcdoc09-21.pdf>, 7.

112 See NEAFC, Report of the 27th Annual Meeting of the North–East Atlantic Fisheries Commission, 10–14 November 2008, Volume I – Report, <http://www.neafc.org/system/files/27neafc_annual_2008_vol1_main-report.pdf>, 12–13 and 16; NEAFC, Report of the 28th Annual Meeting of the North-East Atlantic Fisheries Commission, 9–13 November 2009, Volume I – Report, <http://www.neafc.org/system/files/report_AM_2009_plusd_annex.pdf>, 8.

113 Created by the Honolulu Convention (n 37).

114 WCPFC Conservation and Management Measure 2004–02, ‘Cooperating Non-Members’, <http://www.wcpfc.int/doc/cmm-2004-02/cooperating-non-members-replaced-cmm-2008-02>.

115 WCPFC/Comm.1/8 (10 December 2004), First Session of the Commission Summary Record (WCPFC1 Report), <http://www.wcpfc.int/doc/wcpfccomm18/summary-record>, 3 (para 21).

116 See the resolutions of the various commissions, (n 113).

117 WCPFC Conservation and Management Measure 2004–02, (n 113) para 4, continued as WCPFC Conservation and Management Measure 2008–02, ‘Cooperating Non-Members’, <http://www.wcpfc.int/doc/cmm-2008-02/cooperating-non-members-replaced-cmm-2009-11>, para 8.

118 WCPFC Conservation and Management Measure 2004–02, (n 113) para 5(b) and (c). See now text at (n 129).

119 ibid para 9, continued as WCPFC Conservation and Management Measure 2008–02, (n 116) para 7.

120 WCPFC, Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Fourth Regular Session, 2–7 December 2007, Tumon, Guam, USA (WCPFC4 Report), <http://www.wcpfc.int/doc/summary-report-and-attachments>, at 4 (para 22).

121 ibid 5 para 28.

122 ibid 6 para 31.

123 ibid para 36.

124 ibid 7 para 45 (Senegal) and 8; paras 50 (Ecuador) and 55 (El Salvador).

125 ibid 8 paras 48 and 53. The onus of proof aside, it may also be asked how logically it is at all possible for applicants to ‘comply’ with an obligation whose source is a document such as a WCPFC resolution that expressly or by implication imposes the obligation only on members and States that are already cooperating non-members.

126 ibid 7 para 44.

127 ibid 5 para 26.

128 ibid 4 (para 22), to varying degrees also by Canada, Australia and the US; at 6 (para 34).

129 See also WCPFC, Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Third Regular Session, 11–15 December 2006, Apia, Samoa, <http://www.wcpfc.int/doc/final-summary-record-consolidated-with-all-attachments>, 2–3 (paras 16–21) where the applications of Belize and Senegal were met with a less than enthusiastic response and in particular the instruction to the Executive Director (at 3, para 21) to write a letter ‘advising Senegal to remove all its vessels from the Convention Area.’

130 WCPFC Conservation and Management Measure 2008–02, (n 116). Curiously, the report of the debate—see WCPFC, Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Fifth Regular Session, Busan, Korea, 8–12 December 2008 (WCPFC5 Report), <http://www.wcpfc.int/doc/summary-report-final>, 29–30 (paras 192–199)—does not record why the change was thought necessary, but it is no less welcome for that.

131 WCPFC5 Report, ibid 3–8 (paras 17 (Indonesia), 25 (Belize), 32 (El Salvador), 41 (Ecuador), 46 (Senegal) and 51 (Mexico).

132 ibid 3, paras 19 and 22. The reference to IUU fishing is typical of the confusion that surrounds this compound concept; though that is beyond the scope of this article, note that the fishing concerned cannot be illegal, since it is not contrary to any regulation binding on the applicant, nor would it be likely to be unreported, since the applicant must supply full details of the catches to the Commission in support of its request for cooperating status: Conservation and Management Measure 2008–02, (n 116) subpara 2(d). This leaves unregulated fishing, but when a State engaged in that activity expresses a desire to cooperate through a formal mechanism, thus voluntarily submitting to regulation, its sincerity should surely be presumed; see text between (n 137) and (n 138).

133 ibid 5–6 paras 36 and 41(a).

134 WCPFC, Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Sixth Regular Session, Papeete, French Polynesia, 7–11 December 2009, <http://www.wcpfc.int/doc/wcpfc6-summary-report-final>, at 7–8 (paras 47–49); the resolution as revised is now WCPFC Conservation and Management Measure 2009–11, ‘Cooperating Non-Members,’ http://www.wcpfc.int/doc/cmm-2009-11/cooperating-non-members>, the new text being subpara 2(g).

135 Applebaum (n 40) 303.

136 An example is the ‘Recommendation by ICCAT Concerning Bluefin Tuna Catch Limits in the East Atlantic and Mediterranean’ (Annex 7-9 to ICCATSM12 Report), in ICCAT Green Book 2001/1 (n 54) 142.

137 Only New Zealand pointed out South Africa's rights as a coastal State under international law and that members had a duty to cooperate with it, such that a greater national allocation than they were contemplating offering would be justified; the CCSBT's response should ‘not alienate’ South Africa and affect its cooperation: Report of the Special Meeting of the Extended Commission, 26–27 April 2004, Busan, Republic of Korea (Appendix 3 to CCSBT, Report of the Special Meeting of the Commission, 26–27 April 2004, Busan, Republic of Korea), <http://www.ccsbt.org/docs/pdf/meeting_reports/ccsbt_11/report_of_special_meeting.pdf>, at 6 (para 19).

138 A point raised in the 2007 debate: WCPFC4 Report, (n 119) 4 (para 22).

139 Again this was noted in the debate, ibid 6 (para 30), where some participants worried ‘whether the Commission's ability to manage fishing activity in the Convention Area may be jeopardized by denying … applications’ for cooperating non-member status.

140 This occurred at the first meeting in 2004: WCPFC1 Report, (n 114) 1, para 6.

141 See text accompanying nn 73, 79 and 124. Nevertheless, it is submitted that to equate the cumulative effect of the pertinent provisions of UNFSA itself with a modern revival of abstention, as does Tsuru, Y, ‘Rethinking the Principle of Abstention: the North Pacific and Beyond’ (2004) 28 Marine Policy 542 and 548, is an oversimplification. They do not close the door to new entrants, but subject their entry to the requirement of cooperation with existing participants through the relevant commission. Rather, the revival lies in the attitudes displayed by both coastal and distant-water fishing States in implementing UNFSA, distorting it to their own ends; refraining from entering a fishery altogether cannot be the only way to cooperate with the existing participants. On the absence of a definition of ‘real interest’, see (n 38).

142 Examples listed (n 49).

143 DS Butterworth and AJ Penney, ‘Allocation in High Seas Fisheries: Avoiding Meltdown’, in AIL Payne, CM O'Brien and SI Rogers (eds), Management of Shared Fish Stocks (Blackwell Publishing Ltd, Oxford, 2003) 170.

144 See (n 85).

145 For example, in its written pleadings for the preliminary objections phase of the Southern Bluefin Tuna dispute (Memorial on Jurisdiction of Japan, archived under the item of 7 May 2000 at <http://icsid.worldbank.org/ICSID/ICSID/ViewNewsReleases.jsp>, at fn 117 (page 80)), Japan stated that the effect of UNCLOS art 297(3) was to shield decisions on conservation measures of States generally, not just of the coastal State in the EEZ, from the compulsory dispute settlement procedures of Part XV—as if its long history in the relevant fishery had elevated it to an equivalent status.

146 Brazil and Taiwan were in favour, Namibia and Japan against, but none mentioned art 116(b): Annex 8 to ICCAT18 Report (n 90) 188 (Brazil, Namibia), 189 (Japan, Taiwan).

147 See Serdy (n 46), esp 73–81.

148 ibid 32. Quantifying the compensable loss is likely to be difficult, but the sums involved may not be unmanageable, as it has been pertinently observed that, even under open access, relatively few States have seen fit to participate in a given fishery: Li, E, ‘Cooperative High-Seas Straddling Stock Agreement as a Characteristic Function Game’ (1998) 13 Marine Resource Economics 249.

149 See (n 65) and accompanying text.

150 Oral submissions to the Annex VII tribunal of counsel for Australia, Mr Serdy, on 8 May 2000, in ‘First Round Presentation of Australia and New Zealand, May 8, 2000’, 192–193, archived under the item of 7 May 2000 at <http://icsid.worldbank.org/ICSID/ICSID/ViewNewsReleases.jsp>.

151 Herrington (n 14) 109; Scheiber (n 13) 89.

152 For the full list see the webpage maintained by the FAO as depositary, <http://www.fao.org/Legal/treaties/014s-e.htm>.

153 ‘Recommendation by ICCAT to Establish Percentage Shares of Total Allowable Catch (TAC) and Overage & Underage Provisions for Nations Fishing for North Atlantic Swordfish’ (Annex 4–11 to ICCAT14 Report), in ICCAT Green Book 1996/1 (n 12) 89.

154 See in this vein Iceland's strong statements on Atlantic bluefin tuna, (n 57) and (n 58), and Judge Oda's questioning of the ‘duties’ element in particular: Oda, S, ‘Fisheries under the United Nations Convention on the Law of the Sea’ (1983) 77 AJIL 750751.

The author thanks Ms B Marshall of the NAFO Secretariat for kindly supplying the unpublished documents cited in footnotes 102 and 108.

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