2. The nature of the global distant-water fishing industry

Distant-water fisheries are big business. The industry has been highly concentrated: as of 2018, 14 countries were responsible for 90 per cent of fishing on the high seas.Footnote ⁵ China has for some time been the dominant distant-water fishing nation;Footnote ⁶ in terms of fleet size, it is clearly ahead of other major players, including Japan and South Korea.Footnote ⁷ In 2018, seven of the ten largest corporate fishing actors were headquartered in China, with only one in the United States (US).Footnote ⁸ It is therefore important to understand China’s fishing industry in order to grasp the nature of the issue.

China’s distant-water fishing fleet operates around the world, often just outside—or even inside—the exclusive economic zone of other countries.Footnote ⁹ Estimates of the size of the Chinese fleet vary between 3000Footnote ¹⁰ and 17,000 vesselsFootnote ¹¹ and, at least as of 2020, appeared to be growing.Footnote ¹² China’s 2023 White Paper on Distant-Water Fisheries specified that, in 2022, it had 2551 distant-water fishing vessels and 177 approved distant-water fisheries enterprises.Footnote ¹³

Chinese fishing fleets operate on an industrial scale, typically with a carrier vessel or mother ship system. The large carrier ships are used to resupply the smaller vessels in the fleet and to trans-ship the catch, obviating their need to return to port. For example, the carrier vessel Hai Feng 718 is registered in Panama, managed by a company in Beijing called Zhongyu Global Seafood Corporation and owned by a State-owned enterprise, the China National Fisheries Corporation. The Hai Feng 718 has more than 500,000 cubic feet of cargo space.Footnote ¹⁴ While it might at first be assumed that China engages in industrial-scale fishing for the purposes of feeding its large population, Green and Rudyk have explained that it is an export industry: food consumption in China would not be adversely affected even if China were to end high seas fishing altogether.Footnote ¹⁵

Distant-water fishing vessels may engage in undetected nefarious activities, such as the underreporting of catch or illegally dumping certain fish to make space in the hold for more lucrative catches.Footnote ¹⁶ Whilst China is by no means solely responsible for the global fisheries crisis,Footnote ¹⁷ the conduct of its distant-water fishing fleet has been met with considerable criticism:Footnote ¹⁸ a 2020 study identified at least 183 vessels in China’s distant-water fishing fleet suspected of illegal, unregulated and unreported (IUU) fishing.Footnote ¹⁹ Such industrial-scale distant-water fishing not only affects the sustainability of the species in question but also that of non-target species, the sustainability of the fisheries of other countries and the biodiversity of the ecosystem of which the species is a part, including in ABNJ.

3. Regulation of distant fishery operations prior to the BBNJ negotiations

The starting point for contemporary fisheries law is the United Nations Convention on the Law of the Sea (UNCLOS), Article 87 of which acknowledges that all States enjoy freedom of the high seas inclusive of, inter alia, freedom of fishing.Footnote ²⁰ The Article 116 UNCLOS reaffirmation of the right of the nationals of all States to engage in fishing on the high seas stipulates that this is subject to the treaty obligations of States, and the rights and duties as well as the interests of coastal States. Article 117 provides that all States have a duty to take, or to cooperate with other States in taking, measures to conserve the living resources of the high seas. Article 118 explains that this includes cooperating with other States whose nationals exploit identical living resources, or different living resources in the same area, and working together to take ‘the measures necessary for the conservation of the living resources concerned’. Articles 117 and 118 do not provide specific guidance as to just how these duties are to be fulfilled beyond the suggestion that regional or subregional fisheries management organisations (RFMOs) may be involved.

The UN Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea (Fish Stocks Agreement) provides, inter alia, for a system of RFMOs and regional fisheries management agreements (RFMAs).Footnote ²¹ The RFMOs and RFMAs operate not only within the context established by UNCLOS and the Fish Stocks Agreement, but under various other instruments, including those adopted under the auspices of the FAO.Footnote ²² Marine Protected Areas (MPAs) have been a primary tool by which to conserve fish stocks. An MPA has been defined as an area:

The considerable body of international fisheries law is widely considered to have proven inadequate to the task of conserving high seas fisheries.Footnote ²⁴ The network of RFMOs does not amount to a comprehensive global regime: their mandates are generally limited to a specific resource and to a particular oceanic area, and they are of varying degrees of effectiveness.Footnote ²⁵ An RFMO is unlikely to address impacts of fisheries on species beyond those specifically targeted.Footnote ²⁶ IUU fishing operations continue,Footnote ²⁷ and there have been ‘extraordinary declines in abundance of many open ocean species’.Footnote ²⁸

4. The place of fisheries in the negotiation of the BBNJ Agreement

The BBNJ Agreement was concluded in 2023 as the culmination of a three-step process: the baton was passed from the UNGA, first, to an informal working group, then to a preparatory committee and then to a diplomatic conference. In 2004, the UNGA established the Ad Hoc Open-Ended Informal Working Group (BBNJ Working Group) to study issues relating to the conservation and sustainable use of marine biological diversity in ABNJ.Footnote ²⁹ At its first meeting in 2006, the BBNJ Working Group agreed that poorly regulated fisheries were the main threat to marine biodiversity in ABNJ.Footnote ³⁰ The BBNJ Working Group reported to the UNGA in 2011 and its recommendations served to frame subsequent developments. Two of its recommendations were of particular significance as regards regulation of distant-water fishing operations.

First, it was recommended that the UNGA initiate a process to ensure that the issue of the conservation and sustainable use of marine biodiversity in ABNJ was effectively addressed in a legal framework, ‘including through the implementation of existing instruments and the possible development of a multilateral agreement under the United Nations Convention on the Law of the Sea’.Footnote ³¹ This meant that if a new agreement were negotiated—which had not been decisively determined at that point—it would not necessarily deal with all the issues that fall under the overall heading of the conservation and sustainable use of marine biodiversity on the high seas; some might be left to existing instruments. The relationship between the BBNJ Agreement and other existing instruments would therefore be critical to the significance for fisheries of the BBNJ Agreement.

The second recommendation, which has proved of long-term significance so far as fisheries and the BBNJ Agreement are concerned, was that the process would address:

This ‘package’ represented a somewhat curious mixture of elements. The ‘conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction’ is an extremely broad issue, whereas ‘marine genetic resources’ is a far more specific issue within that. ‘Questions on the sharing of benefits’ pertains to the principle on which provisions regarding the benefits of resource extraction might be based (i.e. common heritage of humankind versus freedom to exploit for those with the means to do so), while the remaining elements—‘area-based management tools including marine protected areas, environmental impact assessments, capacity-building and the transfer of marine technology’—would seem to be proposed as tools by which to address biodiversity loss. Those tools may or may not be adequate for addressing the conservation and sustainable use of marine biodiversity on the high seas as a whole. This ‘package’ left undetermined whether and to what extent fisheries were to be encompassed by any ensuing agreement. The BBNJ Working Group continued to discuss fisheries and its 2014 report noted that ‘unsustainable fishing, in particular overfishing, illegal, unreported and unregulated fishing and certain destructive fishing practices, was the greatest threat to marine biodiversity in those areas’.Footnote ³³

UNGA Resolution 69/292 recorded the decision of the UNGA to develop an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity in ABNJ. It established a preparatory committee to make substantive recommendations to the UNGA on the elements of a draft treaty. This resolution also referenced the package. The question as to the relationship between the BBNJ Agreement and other treaties—and hence existing fisheries law—was addressed in substantive paragraph 3, by which the UNGA recognised that the ‘process’ of developing the instrument ‘should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’.Footnote ³⁴ The phrase ‘not undermine’ had been carefully negotiated by the UNGA so as to allow for varying interpretations, which ranged from ‘not interfering with, to not duplicating existing mandates, to not engaging in direct management at the global level, to not impairing the effectiveness of existing measures’.Footnote ³⁵

Fisheries per se had not at that point been excluded; rather, the relationship between the new instrument and fisheries regulation was ‘the main divergence of opinion during the first meeting’ of the Preparatory Committee from 28 March to 8 April 2016;Footnote ³⁶ the ‘inclusion per se of fisheries remain[ed] debated by States’.Footnote ³⁷ Iceland, Japan and the Russian Federation were opposed to the inclusion of fisheries whereas the African Group, Costa Rica, Indonesia, Jamaica, New Zealand, Norway, Peru and the US favoured their inclusion.Footnote ³⁸ The Group of 77 and China took the position that the treaty ‘should address all activities that can impact BBNJ, without undermining the scope and mandates of existing relevant bodies, instruments and frameworks’.Footnote ³⁹ Writing in 2016, Barnes concluded that fisheries were likely to remain governed by existing instruments but that, due to the scope of the proposed agreement, fisheries ‘will not be unaffected’ by the BBNJ Agreement.Footnote ⁴⁰ Fisheries might, for example, be addressed by area-based management tools (ABMTs) or in relation to environmental impact assessments (EIA).

During the second session of the Preparatory Committee, which took place between 26 August and 9 September 2016, the distinction was drawn between fish as a genetic resource, as in the case of research, and fish as a commodity, but it was not yet clear whether that distinction would be carried through into the draft BBNJ Agreement.Footnote ⁴¹ China, together with other major distant-water fishing countries, including Japan and South Korea, expressed concern about the potential impacts of the new agreement on using fisheries resources.Footnote ⁴² By the third session of the Preparatory Committee in 2017, several delegations drew the distinction between fish as genetic resources and fish as a commodity. China and Japan were amongst those seeking to exclude fish used as a commodity from being explicitly addressed in the BBNJ Agreement.Footnote ⁴³

The report of the Preparatory Committee was adopted in July 2017Footnote ⁴⁴ and, by Resolution 72/249, the UNGA decided to convene an intergovernmental conference ‘to elaborate the text of an international legally binding instrument … with a view to developing the instrument as soon as possible’.Footnote ⁴⁵ Notably the language of ‘comprehensive’ had disappeared, but ‘package’ was retained, as was the ‘not-undermining’ principle, now with reference to both the process and the product. The UNGA ‘recognize[d] that [the] process and its result should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’.Footnote ⁴⁶

This left the BBNJ negotiators with a particularly difficult task in respect of any aspects of biodiversity that had already been explicitly addressed by international law. As Papastavridis notes:

The question then exercising the minds of scholars and observers was how to harmonise this treaty with existing instruments, including regional MPA frameworks and RFMOs.Footnote ⁴⁸ Ideal from an environmental perspective might have been for a global body with overarching authority, somewhat along the lines of that which had been proposed by China in 1973, when it suggested establishing a ‘unified international fishery organisation’ to work through regional committees.Footnote ⁴⁹ Along similar lines and more recently, Ortuño Crespo et al recommended that the BBNJ Agreement call for ‘global mechanisms to fill geographic and taxonomic governance gaps where regional and sectoral bodies cannot be developed, or mandates cannot be extended’.Footnote ⁵⁰ They concluded that, as of 2019, approximately 95 per cent of fish biodiversity in ABNJ was in a governance vacuum.Footnote ⁵¹

Two interpretations of ‘not undermining’ took hold: first, not undermining the mandate of other regimes and not undermining the effectiveness of the measures that other regimes adopt.Footnote ⁵² China supported an interpretation of ‘not undermining’ by which the decision-making body established under the BBNJ Agreement could not establish MPAs directly, if other competent international bodies or institutions exist, even if they had not acted to protect the area in question.Footnote ⁵³ The second, broader interpretation was premised on a more authoritative decision-making body under the BBNJ Agreement that could adopt rules different from those of existing organisations. Greenpeace took the view that if any duplication of the competence of existing institutions or bodies was to be prohibited, ‘there would be little left’ for the BBNJ Agreement to do.Footnote ⁵⁴

The BBNJ Agreement, as concluded in 2023, makes only two explicit references to fish, both intended to exclude fisheries from its provisions on genetic resources;Footnote ⁵⁵ the major distant-water fishing States had successfully minimised the extent to which the BBNJ Agreement directly addressed high seas fishing conducted by industrial-scale distant-water fishing operations. Furthermore, the BBNJ Agreement is to be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies, despite the fact that the existing international fisheries regime has been inadequate to the task of halting the continuing decline in the percentage of stocks that are fished sustainably.Footnote ⁵⁶ This prompts the question as to whether, when the BBNJ Agreement enters into force, its implementation could nevertheless be expected to make any effective contribution in this regard.

5. BBNJ Agreement provisions that could serve to protect ABNJ biodiversity from distant-water fishing

Three of the possible pathways by which the BBNJ Agreement as concluded might nevertheless reduce high seas biodiversity loss resulting from distant-water fishing operations are through the creation of ABMTs including MPAs,Footnote ⁵⁷ through the requirement for EIAsFootnote ⁵⁸ and through initiatives arising from the interaction of the Conference of the Parties (COP) with existing institutions, including RFMOs.Footnote ⁵⁹ Given the lack of political will to include any explicit reference to fisheries in those parts of the BBNJ Agreement not dealing with marine genetic resources, what matters at this point is, however, not only whether it is possible for these tools to make effective contributionsFootnote ⁶⁰ but, also, the extent to which the terms of the BBNJ Agreement ensure such an outcome.

The BBNJ Agreement provides for several new institutional mechanisms by which it may be implemented; Pedrozo has referred to a ‘new, sprawling UN bureaucracy’.Footnote ⁶¹ Even more specifically, and expressed bluntly, the vital question has become: would the institutional processes and decision-making rules permit one or more distant-water fishing States to block, weaken and/or opt out of the use of these tools and institutional interactions to make a decisive difference? To answer this, each of the three possible pathways will be considered in turn.

Part III BBNJ Agreement has as its first articulated objective: ‘establishing a comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas’.Footnote ⁶² Prior to the conclusion of the BBNJ Agreement, some observers had expressed concern that China might achieve its aim that COP decisions to establish ABMTs/MPAs be taken by consensus;Footnote ⁶³ elsewhere, in the Commission on the Conservation of Antarctic Marine Living Resources, for example, China has used consensus decision-making to delay progress on establishing MPAs.Footnote ⁶⁴ The text as finalised did not fully reflect China’s preference for consensus decision-making and yet the process by which to establish a new MPA is quite complex, allowing scope for institutional and political manoeuvring to impact the effectiveness of the outcome.

By Article 23, such decisions and recommendations shall ‘as a general rule’ be taken by consensus, following a multistep process involving collaboration and consultation with a number of bodies and communities and review by the Scientific and Technical Body.Footnote ⁶⁵ If the COP decides, by a two-thirds majority of the States Parties present and voting that all efforts to reach consensus have been exhausted, the decision is then to be taken by a three-fourths majority of the States Parties present and voting.Footnote ⁶⁶ Even a decision by the COP to establish an MPA would not ineluctably lead to all States Parties being subject to the decision. Within 120 days of the COP at which the decision is made, and before the decision becomes binding on all States Parties, any State Party may object in writing to the Secretariat, in which case the decision is not binding on that Party.Footnote ⁶⁷ The Party is then to:

Such an objection would need to be renewed every three years.Footnote ⁶⁹

Part IV aims, inter alia, to ensure ‘that activities covered by this Part are assessed and conducted to prevent, mitigate and manage significant adverse impacts for the purpose of protecting and preserving the marine environment’.Footnote ⁷⁰ It does not explicitly articulate how this would relate to long distance fisheries. The bottom line in decision-making terms, however, is that despite clear obligations to conduct EIAs and relatively complex processes by which those assessments are to be duly considered, a decision as to whether a planned activity can proceed is to be made by the State Party under whose jurisdiction or control the activity falls.Footnote ⁷¹ To draw on an Antarctic comparison, of the first 19 ‘comprehensive environmental evaluations’—the category of EIA requiring international scrutiny under the Protocol on Environmental Protection to the Antarctic Treaty—not a single one appeared to result in ‘substantial modification of the activity as first elaborated by the proponent, let alone a decision not to proceed with the activity, despite this being a mandatory consideration’.Footnote ⁷²

As far as the relationship between the COP and existing RFMOs and other fishery regimes is concerned, the COP shall:

Much will depend on how States Parties interpret the intersection of this provision with the ‘not undermining’ principle as it was incorporated into Article 5(2) BBNJ Agreement:

RFMOs have generally been criticised as insufficiently effective.Footnote ⁷⁵ Until the BBNJ Agreement enters into force, it is too early to assess with any confidence whether efforts of the COP to promote coherence and coordination amongst them could be assured of making decisive improvements. The COP rules of procedure are to be adopted at its first meeting, but the treaty text already provides that the COP is to make every effort to adopt decisions and recommendations by consensus while also specifying that, if all efforts to do so have been exhausted, decisions and recommendations on substance can be adopted by a two-thirds majority and procedural decisions taken by a majority of the States Parties present and voting.Footnote ⁷⁶

Article 2 BBNJ Agreement expresses the general objective of ensuring the conservation and sustainable use of marine biological diversity of ABNJ for the present and in the long term ‘through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination’. It thereby recognises the potential need to look beyond implementation of the BBNJ Agreement itself to ensure adequate protection of biodiversity beyond national jurisdiction.