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Summary) Table of Contents DRAFT TABLE OF CONTENTS RECOMMENDED BEST PRACTICES FOR RFMOS Front Matter Title page Publication data Introductory note (summary) Table of contents Introduction The why and wherefore Background to the project Chapter 1 The purpose and role of RFMOs in the international governance system Chapter 2 The economic drivers of cooperation Chapter 3 Conservation and Management Chapter 4 Allocation Chapter 5 Compliance and Enforcement Box XX: Status of vessel lists and IUU lists Chapter 6 Flag State Duties and their enforcement Chapter 7 Decision-making Box XX: Fishing entity Chapter 8 Settlement of Disputes Chapter 9 Transparency Chapter 10 Special Requirements of Developing States Box XX – UNFSA Part VII Box XX – WCPFC Special Requirements Fund Figure XX – Relative Participation in RFMOs by Developing Countries Table XX – Special Requirements of Developing Countries Chapter 11 Institutional Issues Box XX – WCPFC Budget Formula Chapter 12 Summary of Best Practice Appendices The Panel (bios) Sumary of the ecosystem approach References and footnotes (by chapter or collective) April 2007 Chapter 1 The purpose and role of RFMOs in the international governance system Introduction RFMOs play a critical role in the global system of fisheries governance. They are the primary mechanism for achieving the cooperation between and among all fishing nations including coastal States that is essential for the effective management of international fisheries. In the absence of such cooperation, experience has shown that in the case of common pool resources, open to exploitation by all, the objectives of long-term sustainability and optimum utilization become extremely difficult, if not impossible, to achieve. The more likely scenario is severe over-exploitation of the resources and their sub-optimal utilization. The essential purpose of an RFMO, therefore, is to provide an effective forum for international cooperation to enable States to agree on conservation and management measures in respect of high seas fisheries. This Chapter explains, by way of background, how the ongoing, and escalating, problems of overexploitation and suboptimal utilization of world capture fisheries emerged and describes the basis of the current legal regime for management of high seas fisheries through RFMOs. The coming of the world capture fisheries management crisis and the New International Law of Fisheries As has been recognized for over half a century, the root cause of the economic problem in capture fisheries management lies in their traditional common property, or “common pool,” nature, and the resulting open access, or near open access, fisheries. In open access type of fisheries, it is irrational for any individual fisher to invest in the resource. By refraining from harvesting the fisher can expect to do no more than increase the harvests of his or her competitors. In these circumstances, the individual fisher has every incentive to regard fishery resources as if they were non-renewable, in other words, as resources to be mined. H. Scott Gordon, in a seminal article that marked the beginning of modern fisheries economics (Gordon, 1954), argues that the 1 open access fishery will be in equilibrium, only when the net economic returns from the fishery (which he referred to as resource rent) have been fully dissipated. The magnitude of the threat to the stability of fishery resources of the consequences of the “common pool” nature of capture fishery resources will depend upon the potential profitability of the fisheries based on these resources. If the potential profitability is minimal, the threat may be minor. Conversely, where the potential profitability is high, the objectives of long-term sustainability and optimum utilization of fishery resources become extremely difficult, if not impossible, to achieve without an effective cooperative management regime. The more likely scenario is severe overexploitation of the resources and their sub-optimal utilization. A century ago, the state of world capture fishery resources was not a matter of concern (National Research Council, 1999). Serious management of world ocean fisheries is thus a relatively recent phenomenon, dating back about 60 years. However, the nature of international law is such that attempts to avert the threat to “common pool” resources through the establishment of stable cooperative management frameworks have of necessity been conceived as arrangements between nation states entered into voluntarily and on a regional basis – so called Regional Fisheries Management Organizations (RFMOs). A global crisis in the management of certain types of transboundary fish stocks in the 1990s led to the adoption of a binding global agreement – the United Nations Fish Stocks Agreement of 1995 – which significantly strengthened the position of RFMOs as the paradigm through which States are to cooperate to achieve and enforce conservation objectives both on the high seas and in areas under national jurisdiction. Considerable effort has been expended over the past decade in strengthening RFMOs, reviewing their mandates and modernizing their approaches to fisheries management.1 Until comparatively recently, the legal regime for high seas fisheries was based around two fundamental premises, namely (a) the impossibility of the high seas being 1 For example, the most recent UN General Assembly resolution on sustainable fisheries urged RFMOs to strengthen their mandates and modernize their measures and approaches to fisheries management and called upon States to make further efforts to strengthen and enhance cooperation among existing and developing RFMOs. The same resolution also called upon States to develop and apply best practice guidelines for RFMOs and to undertake performance reviews of RFMOs, based on transparent criteria. 2 subject of effective occupation and, (b) the inexhaustible nature of marine fishery resources (Orrego Vicuña, 1999, pp.4 – 5; but see, as well: Lodge, 2002). In the early 17th century, premise (b) was by no means unreasonable. Given the then state of fishing technology, heavy exploitation of high seas fishery resources was prohibitively costly (not to say dangerous). The belief that the great ocean fishery resources were protected by economics continued until late in the 19th century. In 1883, at a London exhibition on fisheries, Thomas Huxley, one of Britain’s leading biologists of the day, declared that “probably all the great sea fisheries are inexhaustible,” and that attempting to regulate them was pointless (cited in National Research Council 1999, p. 16). Even as Huxley spoke, however, premise (b) was beginning to fray. Fishing technology was changing rapidly, bringing with it a fall in harvesting costs. The shift from sail to steam is the prime example. As harvesting costs fell, the great sea-fishery resources lost their natural protection, and the realization gradually began to take hold that marine capture fishery resources were not inexhaustible after all. The growing realization that premise (b) was becoming increasingly untenable led eventually to States taking measures to conserve living resources through voluntary curbs upon the exercise of their freedom to fish on the high seas, this being done initially through international agreements. An early example is provided by the reaction to the outcome of the Bering Sea arbitrations2 in the form of the 1911 North Pacific Fur Seal Treaty, which is discussed further in Chapter 2. An immediate post-World War II example is that of the International Commission for the Northwest Atlantic Fisheries (ICNAF), established by Canada, the United States and a few European countries in 1949. This was one of several regional commissions set up following encouragement from the FAO starting in 1945. Other examples included the Indo-Pacific Fisheries Commission and the General Fisheries Council for the Mediterranean (GCFM). The emphasis on the need to conclude regional agreements as the basic pattern for management of international fisheries was reinforced by the findings of the Rome Technical Conference on the Conservation of the Living Resources of the Sea of 1955 2 The Bering Sea arbitrations of 1898 and 1905 provide a good illustration of problem of attempting to apply unilateral conservation measures to stocks on the high seas and the consequential need for cooperation among all participants in a fishery. 3 – one of the early contributions to better fisheries management of the recently-formed FAO. That Conference, which was convened in the context of the work of the International Law Commission on the draft articles for the 1958 United Nations Conference on the Law of the Sea, agreed for the first time that conservation and management of high seas fisheries resources could only be carried out through international cooperation in research and regulation and that the best way of achieving this was through the establishment of regional conventions, based on the geographical and biological distribution of the marine populations concerned. These recommendations were reflected in the provisions of the Convention on Fishing and Conservation of the Living Resources of the High Seas of 1958 which in turn became the source of articles 116 to 120 of the 1982 United Nations Convention on the Law of the Sea (“LOS Convention”) . In the mid 1970s, when the new 200 nautical mile EEZ regime was clearly on the horizon, a new problem began to emerge. It was estimated at that time that over 90 per cent of the world commercial marine capture fishery harvests (by volume)
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