1 Introduction
This chapter examines the existing practice concerning non-use measures in high-seas areas managed by regional fisheries management organisations (RFMOs). Considering non-use on the high seas may seem odd: since Grotius’ days, this vast area and its marine living resources have been meant to be extracted and utilised.1 International law, particularly the 1995 UN Fish Stocks Agreement (UNFSA) still recognises every State’s freedom of fishing subject to the duty to cooperate through existing RFMOs to adopt management measures for the stocks concerned.2 Predictably, RFMOs are reluctant to cut off their members’ fishing rights: States want their fleets to fish and have established these organisations to deliver regulations for the activity. They would only consider actions translating into non-use decisions under specific or exceptional circumstances.
Yet non-use measures are among the many tools at RFMOs’ disposal, even if they are used only occasionally. Generally, RFMOs understand use as any activity that targets or otherwise impacts a resource under their competence. In the case of RFMOs, this means extracting resources from the environment or using the resources the environment contains rather than those the environment represents (spatial-extension resources).3 Therefore, non-use measures in this chapter are understood as those requiring the absence of such taking.
Reasons behind non-use measures adoption vary, including attempts to recover a depleted fishery, conservation of specific non-targeted species and –more recently– broader ecosystem considerations, as when RFMOs have
This contribution is organised into five sections. After this introduction, the second section offers a brief legal and institutional context, situating international fisheries and RFMOs’ work within the 1982 United Nations Convention on the Law of the Sea (UNCLOS) framework5 and clarifying the meaning of RFMOs to follow. Based on this book’s conceptualisation, the third section categorises the types of non-use measures RFMOs adopt, including what this contribution excludes from the non-use measure concept. The same section then moves to present and discuss some of the relevant RFMO practice on the subject. The paper highlights that non-use measures are part of the instruments at RFMOs’ disposal, even as these organisations resort to them unevenly. There are differences in applying these measures through regions, and the most visible practice concerns RFMOs with competence over deep water and bottom fisheries.
The fourth section outlines some considerations and difficulties for advancing future non-use area-based tools within RFMOs and the future interactions with the Conference of the Parties under the recently adopted BBNJ Agreement. Observing RFMOs’ dynamics offers instructive lessons for future discussion on designing and establishing area-based management decisions that may include non-use measures under MPAs.6 The chapter closes by providing some conclusions, including a reflection on the challenges to successful non-use measures under RFMOs.
It is difficult to overestimate the importance of RFMOs for the sustainable management of fish, particularly straddling and highly migratory stocks, ie those that occur in waters under national jurisdiction and the high seas. These organisations have become the standard multilateral regulatory framework to adopt specific measures for these stocks, including any potential non-use measures, bringing together relevant coastal and flag States. The following sections first offer a brief context to situate the work of States cooperating through RFMOs against an international legal background historically defined by the freedom to fish. Likewise, the second section clarifies what this chapter will regard as an RFMO because the notion may offer some difficulties.
2.1 The Law of the Sea and Fisheries
UNCLOS provides the basic legal framework for the exploitation and management of marine living resources. Yet this fundamental treaty contains weak provisions to offer an adequate framework for the sustainable exploitation of fisheries, including those occurring on the high seas.
In recognising the exclusive economic zone (EEZ), UNCLOS gave coastal States “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living” up to 200 nautical miles.7 Articles 63(2) and 64 establish a similar rule for States to regulate the exploitation of straddling and highly migratory stocks, that is, those that occur in areas subject to coastal State jurisdiction and the high seas. Coastal States and those fishing for these stocks shall cooperate to adopt conservation and management measures. Under UNCLOS, States can do this directly or bilaterally, or by establishing organisations for this purpose.
For fishing activities on the high seas, Articles 87 and 116–119 maintain the freedom of fishing subject to broad rules imposing limited restrictions and responsibilities on fishing States. Under Article 117, “all States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas”. Article 118 provides a slightly more specific duty to enter negotiations “with a view to taking the measures necessary for the conservation of the living resources concerned”. However, UNCLOS does not address how States should cooperate when an existing regional framework – such as an RFMO – has already adopted management measures. Equally,
International efforts to overcome the gaps left by UNCLOS led to the adoption of the UNFSA in 1995, which entered into force in 2001. The UNFSA introduced two significant changes for managing straddling and highly migratory stocks. The first is the establishment of general principles coastal and flag States must apply to these fisheries: the precautionary principle and an ecosystem approach to fisheries management.9 The UNFSA’s second change was recognising a robust and specific duty to cooperate in managing straddling and highly migratory species, enhancing the role of RFMOs. Article 8(3)-(4) provides that, when an RFMO has been established with the competence to adopt management measures for fish stocks, only States which are members or agree to apply the management measures adopted by the competent RFMO “shall have access to the fishery resources to which those measures apply”.10
With only a handful of exceptions, States cooperate to implement these provisions through RFMOs and similar arrangements and have accepted the UNFSA’s approach. Today, there is broad consensus that fishing by vessels flagged to uncooperative non-members is regarded as illegal, unreported and unregulated fishing, or ‘IUU fishing’.11 This is why the work of RFMOs is critical for managing high seas stocks and for observing the extent to which States adopt non-use measures.
2.2 The Meaning of RFMOs
There is no single legal definition of RFMOs, but there is general agreement that they share three distinctive features.12 They are treaty-based international organisations with legal personality and permanent organs, have the competence to manage high seas stocks and the power to adopt legally binding
This chapter regards RFMOs as those with the competence to regulate high-seas fishing and, more explicitly, straddling, highly migratory and the so-called discrete stocks or those that only occur on the high seas. This distinction is relevant because RFMOs set up under Article 64 of UNCLOS would have a role in waters subject to coastal States’ jurisdiction and the high seas. However, this chapter does not examine RFMO measures impacting or related to coastal State practice; it only looks at those non-measures adopted by RFMOs and applicable to the high seas.
Equally, this chapter will not examine the practice of regional organisations that manage anadromous resources under Article 66 of UNCLOS. Article 66(3)(a) bans the take of such species while they are on the high seas, and is in itself a non-use measure.15 Admittedly, this is one of the most innovative and substantive non-use measures adopted at a treaty level in the law of the sea. Since States in whose rivers anadromous species are born are the ones with the most interest in their conservation, they can take measures within their EEZ s. On the high seas, Article 66(3) of UNCLOS facilitates this goal by prohibiting the taking of these resources, unless ‘economic dislocation’ may follow to another State – an exception that has yet to be applied. However, Article 66(3) also means that regional treaties establishing regional organisations to regulate salmon fisheries replicate the same approach, and their practice on the high seas rests primarily on enforcing it. The regional organisations with the competence over salmon fundamentally manage this prohibition and have adopted measures focussed on preventing or reacting to illegal or unregulated fishing by adopting robust monitoring and control measures.16
3 Non-use Measures and RFMOs
This section discusses non-use measures under RFMOs treaties and the practice of these bodies when adopting conservation and management decisions, consistent with the conceptualisation this book follows. The first section distinguishes between those measures prohibiting the taking of specific species and those aiming at closing areas to fish. The second section presents part of the relevant RFMO practice on the subject following this categorisation.
3.1 Typology of Non-use Measures
As the introduction set out, this chapter generally follows the conceptualisation proposed in this book.20 Marine fishing implies taking marine animals for human or other animal consumption. Therefore, non-use is identified with ‘no taking and killing’ of fish. There is no other possible (except theoretical) utilisation of fish caught on the high seas – even catching fish to take genetic samples would certainly involve, imply or accept such an end.
The following subsections introduce the two main categories of non-use measures that RFMOs may adopt, namely by species and area, and then explain what will not be regarded as non-use in RFMOs’ work.
3.1.1 Measures Prohibiting the Taking of Targeted or Other Specific Species
These measures aim to directly ban the taking of species or prohibit fishing over specific fish stocks in an RFMO area of competence or part thereof. There could be different grounds for them: a prohibition on taking a targeted species for sustainability purposes or a seasonal ban allowing for the protection of recruitment processes.21 Such decisions would allow for species recovery, restore productivity, and ensure future commercial activities. Equally, measures prohibiting taking associated species or those belonging to the same ecosystems as targeted species due to biodiversity conservation concerns would also fall under this category. Several RFMO treaties unambiguously contemplate the possibility of taking such measures for their decision-making bodies, including those establishing the Inter-American Tropical Tuna Commission (IATTC),22 the South East Atlantic Fisheries Organisation (SEAFO)23 and the Western and Central Pacific Fisheries Commission (WCPFC),24 to name a few. Other RFMO constitutive treaties do not say anything, but – as the following parts will discuss – in practice, some RFMOs have adopted such measures notwithstanding.
These measures aim to ban the taking of fish within an RFMO area of competence or part thereof, with no reference to specific species or resources. The fact that an RFMO adopts a non-use measure targeting particular species in a defined area does not necessarily make it an area-based one – it would still fall under the category discussed in the previous subtitle above. The critical feature here is the closing of a specific region to fish in consideration of the area itself and its components, with or without reference to species or resources.
Non-use measures in this group admit different justifications. For example, precaution may suggest closing an area to fish until more information on the available stocks is available. An area closure aiming to protect a spawning region for multiple species based on productivity reasons also falls under this category, even if it does not necessarily seek broader ecosystem considerations. It is also possible to consider a fishing ban to safeguard the habitat or ecosystem where targeted and associated species occur. Equally, depending on the impacts of specific fishing or gear on unique or fragile ecosystems, these circumstances would call for non-use measures based on broader biodiversity considerations to protect ecosystems where fish occur. The second part will show that RFMOs’ decisions to protect vulnerable marine ecosystems (VMEs) have been adopted based on some of these grounds. Likewise, marine protected areas banning fishing would fall under the present category.
Admittedly, not every measure aimed at protecting habitats or ecosystems where fish and fishing occur needs to be a non-use measure. For example, allowing specific, less harmful fishing gear while prohibiting others may suffice to achieve broader conservation-oriented policy considerations.
3.1.3 What is Not Regarded as ‘Non-use’ Measures
Some RFMO decisions may look like non-use measures but are not. A couple of examples in the context of WCPFC illustrates the point. Prohibiting specific gear or tools for fishing while still allowing catches with other means is not regarded as a non-use measure. Therefore, the well-known prohibitions of deploying fish aggregated devices (FADs) adopted by WCPFC are not within the scope of the non-use measures notion as this contribution understands them, as it still allows for catches without deploying the FADs.25 In the same WCPFC context, the so-called ‘closures’ of high seas pockets that banned tuna fishing by purse seiners in 2008–2012 cannot be regarded as non-use measures because they still
The WCPFC also illustrate what should not be regarded as non-use measures with a third example. The Parties to the Nauru Agreement demand that foreign fleets seeking access to their members’ EEZ abstain from fishing on the high seas. This is not a non-use measure as categorised here. Such a condition is not a measure adopted by WCPFC. Instead, it is the exercise of coastal State jurisdiction conditioning access to fishing in domestic waters.28 Distant-water fishing States can still fish legally in the high seas pockets; the only consequence is being unable to access the EEZ s of certain coastal States.
3.2 RFMOs’ Practice
Non-use measures in the context of RFMOs can be adopted directly at the treaty level or afterwards by a decision of the relevant body, often the Commission. This section contains examples of both, even if the former option is rare. A significant development is that RFMOs have come to adopt non-use measures even if their original constitutive treaties did not openly provide for such competence. However, not all RFMOs exhibit the same degree of development in adopting such non-use measures. Several RFMOs regularly opt for other management tools such as effort control rules, total allowable catches and other input or output measures short of fishing prohibitions.
3.2.1 RFMOs’ Competence to Adopt Non-use Measures
Indications of the content of management decisions are rather general in RFMO conventions predating UNCLOS or the UNFSA.29 Most do not refer explicitly to the competence to implement non-use measures and do not mention adopting fishing bans or prohibitions as apparent RFMO powers. For
In contrast, RFMO treaties negotiated after the UNFSA often reference the specific measures the decision-making body is entitled to adopt. The UNFSA does not explicitly mention non-use measures within RFMO s’ powers but recognises them when defining a ‘serious violation’ of management measures.33 The UNFSA also introduced significant changes in the understanding of managing straddling and highly migratory stocks, and its provisions have influenced regional practice and the drafting of subsequent RFMO convention texts. Some of these treaties are illustrative of this evolution and have been more explicit when establishing a mandate or recognising the competence to apply precaution and broader ecosystem considerations, such as the conservation of associated species, potentially justifying or leading to non-use measures.
For example, the SEAFO Convention indicates that its Commission may adopt measures such as “the quantity of any species which may be caught” (which, if set to zero, is a non-use measure), “the areas and periods in which fishing may occur” (and hence where it may not), and “any other measures
Whether RFMO treaties counted on explicit provisions for their decision-making bodies to adopt non-use measures, they nevertheless have sometimes adopted and implemented specific decisions on banning fishing for certain stocks and areas. Perhaps the most significant development in this regard is exemplified by the global process leading to restrictions on bottom fishing and the protection of VMEs (bottom trawling can be especially harmful to such fragile ecosystems). The continuous calls through United Nations General Assembly (UNGA) resolutions in the 2000s triggered changes across nearly every RFMO, not only in the management measures they adopted but sometimes at the treaty level. Resolution 61/105 requests States to prevent “significant adverse impacts” on VMEs and conduct prior environmental impact assessments before fishing is permitted.38 States and RFMOs should establish precautionary area closures to protect deep-sea habitats and biodiversity where VMEs are known or likely to occur unless fisheries can be managed to prevent significant adverse impacts. States and RFMOs should adopt and implement these measures or not authorise bottom fisheries to take place. Subsequent resolutions reviewed and further detailed the calls made back in 2006.39
Although non-binding, this ‘soft-law’ quickly hardened into binding treaty provisions and conservation measures at regional levels. For example, the SPRFMO Convention recognises that its Commission can adopt measures to
3.2.2 Non-use Measures for Targeted and Other Species
RFMOs may adopt bans on the taking of specific species for several reasons. For example, a moratorium would contribute to recovering an overexploited or depleted stock. States participating in high-seas fishing have established such measures directly in treaty text or through conservation and management measures adopted by the RFMO decision-making body. An example of a treaty-based measure is the moratorium on the Alaskan pollock fishery (Aleutian Basin pollock) in the Central Bering Sea, which collapsed in the early 1990s. States interested in this fishery agreed in 1992 on a moratorium in the ‘Doughnut Hole’, the Central Bering Sea’s pocket between and beyond the EEZ s of Russia and the United States.44 The 1994 Central Bering Sea Convention kept the measure in place because as long as the biomass of this stock did not meet
RFMOs also adopt non-use measures for specific species for conservation purposes. Historically, most RFMOs have traditionally focussed on the targeted species and regulating the bycatch of species of economic value. Over time, several RFMOs have moved to include measures to protect other species within their area of competence, such as species not necessarily targeted by fishing activities but which may face additional challenges. The North-East Atlantic Fisheries Commission (NEAFC) is an illustrative example to observe: it has pioneered an increasing focus on the effects of fishing on the different parts of the marine ecosystem, including biodiversity.46 This shift also included amendments to the NEAFC Convention in 2006 to include notions such as marine biodiversity, precaution and ecosystem considerations; today, NEAFC adopts non-use measures for targeted stocks and to protect other marine ecosystem species.
Non-use measures towards targeted species include NEAFC’s current ban on catching redfish in the Irminger Sea, whereby “there shall be no directed fisheries neither for the shallow pelagic redfish stock nor the deep pelagic redfish stock in the Irminger Sea and adjacent waters in 2022, 2023 and 2024”.47 Other RFMOs have also adopted non-use measures for targeted stocks. SPRFMO, for example, has a zero catch for orange roughy in a specific area, the South Tasman Rise, while allowing fishing in other parts of the SPRFMO Convention Area.48 Similarly, SEAFO has established zero catch measures for its orange roughy stocks.49
However, most RFMOs do not adopt such non-measures, even towards targeted species. In the Pacific, for example, NPFC has seen no need for them, not even for targeted stocks. More conspicuously, the five tuna RFMOs (WCPFC, IATTC, ICCAT, CCSBT and IOTC) generally do not adopt non-use measures as part of harvest strategies or management plans, except for seasonal bans to safeguard biological processes primarily associated with restricting FADs – therefore a gear limitation rather than a non-use measure.53 Instead, they usually resort to more traditional management approaches such as effort limitations, total allowable catch decisions and limits to specific gear, including FADs.
Likewise, only a few RFMOs have adopted non-measures to protect non-targeted or other species for biodiversity conservation reasons. SPRFMO and NPFC, for example, have no measures aiming at non-targeted species. Other RFMOs that have adopted decisions to protect biodiversity beyond targeted stocks do not consider non-use measures but aim to lessen the harmful effects
3.2.3 Area-Based Non-use Measures
RFMOs may also adopt management measures for areas where more than one species can occur. It could be a spawning area, or there may be other considerations, such as the desire to prevent fishing activities that would cause unknown impacts – ie applying the precautionary approach in some form. An example of a non-use measure established at the treaty level is the one found in the Agreement that regulates the high seas of the central Arctic Ocean Fisheries (CAOFA).55 The CAOFA prevents future commercial fishing unless appropriate conservation and management measures are adopted in the first place. Therefore, the agreement does not entail an indefinite moratorium on commercial high-seas fishing: it can be lifted when certain conditions are met.56
As mentioned in the first part, the most significant progression towards area-based non-use measures that RFMOs have adopted concerns those to protect VMEs. There are several examples in this regard. Today, most RFMOs regulating bottom fishing contemplate some degree of protection, even if some decisions are not always consistent with UNGA resolutions. Some RFMOs have built a network of closed areas to fish, aiming at protecting VMEs. NEAFC has several such regions.57 Other RFMOs have also adopted non-use measures
In the context of spatial measures adopted to protect elements of the marine environment not necessarily linked to targeted stocks or associated species, some organisations have adopted MPAs that include non-use based on broader ecosystem considerations. MPAs are defined as “a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values”.63 They can establish a total no-take area, ie where fishing is prohibited or may have subareas where fishing is allowed under certain conditions.
It is unlikely that an MPA would always be a total no-take area, as at least one type of use would likely be allowed, however minimal: fishing for scientific purposes authorising fish taking (killing). An example of this approach is the South Orkney Islands Marine Protected Area, adopted by CCAMLR in
The next section introduces some considerations and posits questions for further discussion on this matter, including how to advance the establishment of appropriate area-based non-use measures.
4 Considerations for Future Non-use Area-Based Measures Protecting Marine Ecosystems
There is broad consensus about the challenges of the international legal framework for adopting integrated area-based conservation measures to protect marine biodiversity.67 The system for ocean governance is fragmented and demands coordinated efforts at different decision-making bodies and States to address all the possible environmental impacts of human activities at sea.68 These concerns were at the forefront of the negotiations that advanced the BBNJ Agreement adopted in June 2023, which heralds a new legal and institutional framework to adopt area-based management tools.69 However, there is still a long way to go before the treaty enters into force and the new institutional arrangements begin their work, including the processes for establishing
There is no lack of ideas to advance the conservation of high-seas biodiversity. Some authors have offered radical ideas by proposing a straightforward non-use measure: banning all fishing on the high seas.72 The argument holds that closing the high seas to fishing would favour more equity among States, because high-seas stocks are mainly exploited by rich, industrialised States whose fleets receive heavy subsidies to operate.73 A closure would allow high-seas fish populations to recover, having positive spillover effects, including larger harvests within EEZ s – and better prices – that would benefit developing countries. Less fishing effort on the high seas would also reduce fossil fuel burning and the cost of fishing globally.
However, this proposition is unnecessary and unrealistic: sustainable fishing on the high seas may sometimes be elusive, but it is possible. Such proposals would only distract attention from efforts to advance change within the existing legal and political framework. Instead, promoting reasonable area-based measures with feasible conservation goals would offer a pathway forward, even if they do not always consider non-use but other marine conservation and management tools.
There is a reasonable consensus about the positive impacts of area-based measures on marine biodiversity conservation, such as marine reserves and MPAs that may include no-take zones or other forms of prohibitions on fishing.74 They include restoring and increasing fish biomass and diversity,
There is first a legal challenge. As explained above, RFMOs do not always contemplate an explicit competence to adopt area-based management decisions involving non-use measures. However, this contribution also highlighted that some RFMOs could implement area closures to protect VMEs, even when their founding treaties did not have such explicit references. But difficulties may lay ahead, nevertheless.
Consider, for example, some of the arguments advanced to oppose proposals for MPAs in CCAMLR. Opposition to the proposals discussed over the years in CCAMLR was not limited to technical aspects and the management approach to the area. One of China’s substantive concerns demanded that “the objectives of proposed MPAs must be in line with the objective of the Convention, as set out in Article II, and should focus on Antarctic marine living resources”.76 China also stated that “the proposals must not restrict the rational use of Antarctic marine living resources, and must allow reasonable levels of fishing” as “any restriction on fishing activities must have a sufficient legal and scientific basis”.77 China thus hinted that CCAMLR might not have the competence to adopt ambitious MPAs restricting the ‘rational use’ recognised in the CAMLR Convention. In other words, China opposed the non-use nature of the proposed measure.
The CCAMLR experience with the proposals for an MPA in the Ross Sea and East Antarctica illustrates a second challenge: the difficulty of reaching a consensus. The original proposals were ambitious in their intentions to establish primarily an area-based non-use measure. Although most CCAMLR members gradually supported the two proposals, there was opposition from others, particularly China and Russia. After years of complex negotiations, only the Ross Sea MPA (proposed by New Zealand and the USA) was adopted in 2016.79 In contrast, the East Antarctica one (then led by Australia, France and the European Union) failed to reach a consensus. Another proposal on Domain 1 is also stuck.80 The Ross Sea MPA establishes a General Protection Zone where commercial fishing is prohibited, but there are other areas where such fishing is still possible. The reality of reaching an agreement under consensus-based rules on the Ross Sea region MPA demanded compromise, including adding fishing zones in 20% of the MPA, a duration clause and provisions for research fishing within the whole of the MPA.81
A third question is how to deal with non-members of RFMOs. For an area-based measure to succeed, free riders must not undermine it. Complicated as it sounds, this challenge is more theoretical than real. The practice against non-members and unregulated fishing shows that RFMOs – whether their members are contracting parties to the UNFSA – exhibit a consistent approach against unregulated fishing by uncooperative non-parties to RFMOs. RFMOs have treated flags of convenience and other non-members as IUU fishing, applying the same consequences to all, including listing vessels flagged to non-parties.82 Compliance with any future MPA or area-based management measure received or accepted by an RFMO should be supported with the same logic: any fishing against it by uncooperative non-members will likely be treated as IUU fishing.
A fourth challenge is the BBNJ Agreement itself. The entry into force, future implementation and interactions with existing regimes are all uncharted waters resting ahead on the BBNJ horizon. Yet the current legal design involves one substantial challenge: for advancing MPAs or similar measures under the BBNJ Agreement, proposals must sort out two processes: one before the BBNJ COP and another with the competent RFMO.
Article 22(1) letters (a), (b) and (c) are critical to understanding the mechanics of the BBNJ Agreement. The treaty accepts that whatever decision the Conference of the Parties (COP) may take (assuming consensus or a majority under Article 23), the existing regional bodies maintain their competence.
In practical terms, the BBNJ mechanism recognises the need for two successive processes. Adopting an area-based measure limiting high-seas fishing for conservation purposes entails a decision by the COP and another by the competent RFMO to implement such a decision from a fisheries perspective. Article 22(3) attempts to facilitate the process by asking the COP to engage with RFMOs concerning “area-based management tools, including marine protected areas”. The added value of the likely cumbersome process before the future BBNJ COP would probably be that RFMO members would later have less room for manoeuvring out, not least if previously consulted under Article 22(3). Still, the mechanism would involve considerable efforts from interested States and stakeholders.
5 Conclusions: a Tailored Approach to Non-use Measures
Implementing non-use measures as management and conservation tools is not the main business of RFMOs, but they still adopt such measures for different purposes. Reasons behind their adoption vary, including attempts to recover a depleted fishery, conservation of specific non-targeted species and – more recently – broader ecosystem consideration. Consistent with this book’s conceptualisation, this chapter has proposed a typology with two categories of non-use measures, understanding them as the no-take and no-killing of fish: those aiming at specific species (targeted or not) and those inspired by area-based considerations.
The scope of RFMOs’ constitutive instruments varies in recognising an explicit competence to adopt non-use measures. However, practice shows that RFMOs have adopted decisions to protect ecosystems where fish under their mandate occur, whether their treaties recognise such explicit competence or not, as the protection of VMEs demonstrates. The positive assessment of
Such steps may face several difficulties, including legal objections and tough decision-making negotiations. Perhaps the most challenging issue will come once the BBNJ Agreement enters into force. The cumbersome ‘double process’ before the future COP and the regional implementation of its decisions promise demanding efforts for States and stakeholders willing to push for area-based management tools. Whether the BBNJ Agreement will facilitate the adoption of measures to improve the conservation of marine biodiversity is a question that will remain for several years ahead.
Acknowledgments
The author would like to thank professors James Harrison, Erik Molenaar, Catherine Blanchard and Solène Guggisberg for their generous and constructive comments on early versions of this contribution.
H. Grotius, The Freedom of the Seas (first published in 1609, OUP 1916) 72–76.
United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (opened for signature 4 December 1995, entered into force 11 November 2001) 2167 UNTS 3, arts 8 and 17.
These understandings are consistent with the definition of use and non-use offered by Guggisberg in chapter 2 of this volume.
Agreement under the UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, Document A/CONF.232/2023/4 (30 June 2023).
United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. Technically, the acronym UNCLOS refers to the United Nations Conferences on the Law of the Sea, of which the Third (1973–1982) resulted in the UNCLOS. However, as other chapters in this book use the acronym UNCLOS to refer to the Convention, this chapter will be consistent. See W. R. Edeson, “Law of the Sea Convention: Confusion over the use of ‘UNCLOS’, and references to other recent agreements” (2000) 15 International Journal of Marine and Coastal Law 413.
See also the discussion by Klerk in chapter 4.
UNCLOS, art 56(1)(a).
See E. Hey, “The Persistence of a Concept: Maximum Sustainable Yield” in D. Freestone (ed), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Brill 2013) 89–97.
UNSFA, arts 5, 6 and 7.
UNFSA, art 8(4). See also art 17(1) and (2).
Food and Agriculture Organization (FAO), “International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing” (2 March 2001) para 3.3.1.
Though the UNFSA defines “arrangement” in Article 1(d), in very broad terms.
Perhaps, in addition, to a secretariat that oversees the day-to-day operations. J. Harrison “Key Challenges Relating to the Governance of Regional Fisheries” in R. Caddell and E. J. Molenaar (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Hart 2019) 79, 84.
For example, those organisations established under the umbrella of the FAO, such as the Indian Ocean Tuna Commission (IOTC), a feature that generally does not affect their management competence.
UNCLOS, art 66(3)(a) recognises the exception of “economic dislocation” in favour of a State other than the State of origin, which has not been applied.
Convention for the Conservation of Salmon in the North Atlantic Ocean (adopted 2 March 1982, entered into force 1 October 1983) 1338 UNTS 33; Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (adopted 11 February 1992, entered into force 16 February 1993) 1899 UNTS 69.
Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (signed 20 May 1980, entered into force 7 April 1982) 1329 UNTS 47.
CCAMLR, art II (1), (2) and (3).
See CCAMLR, “Report of the Twenty-Seventh Commission Meeting” (October–November 2008) SC-CAMLR-XXVIII, 71; CCAMLR, “Report of the Thirty-First Commission” (October–November 2012) CCAMLR-XXXI, 129.
See the discussion by Guggisberg in chapter 2.
In simple terms, in a recruitment process young and small fish survive to become slightly older and larger fish, entering the fishery.
Convention for the Strengthening of the Inter-American Tropical Tuna Commission established by the 1949 Convention between the United States of America and the Republic of Costa Rica (opened for signature 14 November 2003, entered into force 27 August 2010) (Antigua Convention) art VII(1)(f).
Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (SEAFO Convention) (opened for signature 20 April 2001, entered into force 13 April 2003) 2221 UNTS 189, art 3(d).
Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC Convention) (opened for signature 5 September 2000, entered into force 19 June 2004) 2275 UNTS 40532, arts 5(e), 6(4) and 10(1)(c).
See eg WCPFC, “Conservation and Management Measure 2021–01 for Bigeye, Yellowfin and Skipjack tuna in the Western and Central Pacific Ocean”, available at <https://cmm.wcpfc.int/measure/cmm-2021-01> accessed 11 August 2024.
WCPFC, “Conservation and Management Measure 2008–01 for Bigeye and Yellowfin Tuna in the Western and Central Pacific Ocean”, available at <https://cmm.wcpfc.int/measure/cmm-2008-01> accessed 18 June 2024.
Inter-American Tropical Tuna Commission (IATTC) Scientific Advisory Committee, “Resolution C-21-04, Conservation Measures for Tropical Tunas in the Eastern Pacific Ocean (2022–2024)” (adopted 2021) 98th Meeting (resumed) (by videoconference), 18–22 October 2021, paras 2–3. See also para 12 regarding the so-called “corralito” for purse seiners.
Parties to the Nauru Agreement, “Third Implementing Agreement of the Nauru Agreement” (2008) art 1(3), available at <https://www.pnatuna.com/sites/default/files/3rd%20Arrangement%20PNA.pdf> accessed 20 June 2024.
The UNCLOS says nothing about regional organisations with competence over high seas stocks adopting non-use measures.
International Convention for the Conservation of Atlantic Tunas (ICCAT Convention) (signed on 14 May 1966, entered into force 21 March 1969) 673 UNTS 63, art VII.1(a). ICCAT parties adopted on 20 November 2019 the Protocol to amend the International Convention for the Conservation of Atlantic Tunas, not yet in force. The Protocol does not introduce changes in this regard: no explicit non-use measures are contemplated within the Commission’s powers.
Agreement for the Establishment of the Indian Ocean Tuna Commission (IOTC Convention) (adopted 25 November 1993, entered into force 17 March 1996) 1927 UNTS 329, art V.2(c).
Convention on Future Multilateral Cooperation in the Northeast Atlantic Fisheries (NEAFC Convention) (opened for signature 18 November 1980, entered into force 17 March 1982) 1285 UNTS 129, art 7(c).
UNFSA, art 21(11)(c): a serious violation includes “fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota established by the relevant subregional or regional fisheries management organization”.
ibid art 6(8)(a), (b) and (g).
ibid art 10(2).
Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (SPRFMO Convention) (opened for signature 1 February 2010, entered into force 24 August 2012) 2899 UNTS 211, art 20(2)(d)-(e).
ibid art IV.
UNGA Res 61/105 (2006) GAOR 61st Session Supp 49, para 38.
UNGA Res 64/72 (2009) GAOR 64th Session Supp 49; UNGA Res 66/68 (2011) GAOR 66th Session Supp 49; UNGA Res 71/123 (2016) GAOR 71st Session Supp 49.
SPRFMO, art 20(1)(d).
ibid art 20(1)(d).
Convention on the Conservation and Management of the High Seas Fisheries Resources in the North Pacific Ocean (adopted 24 February 2012, entered into force 19 July 2015) 2015 CTS 14, art 7(3)(c).
One such example is the Southern Indian Ocean Fisheries Agreement (SIOFA) (opened for signature 7 July 2006, entered into force 21 June 2012) 2835 UNTS 409.
See eg D. Balton, “The Bering Sea Doughnut Hole Convention: Regional Solution, Global Implications” in O. S. Stokke (ed), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (OUP 2001) 143; E. Meltzer, “Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries” (1994) 25 Ocean Development & International Law 255, 283–290.
Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (signed on 16 June 1994, entered into force 8 December 1995) 34 ILM 67, Annex Part 1, para 3.
NEAFC, “Contribution on the Ecosystem Approach to Fisheries Management as a Focus of the Fifteenth Round of Informal Consultations of State Parties to the United Nations Fish Stock Agreement” (March 2021, delayed from 2020) ICSP Contribution, 1.
NEAFC, “Recommendation 1: 2022 on Management Measures for the Protection of the Shallow Pelagic Redfish Stock and the Deep Pelagic Redfish Stock in the Irminger Sea and Adjacent Waters in 2022, 2023 and 2024”, available at <https://faolex.fao.org/docs/pdf/mul214704.pdf> accessed 11 August 2024.
SPRFMO, “Conservation and Management Measure 03a/2023 (supersedes 03a/2021) for Deepwater Species in the SPRFMO Convention Area”, available at <https://www.sprfmo.int/assets/Fisheries/Conservation-and-Management-Measures/2023-CMMs/CMM-03a-2023-Deepwater-Species_29Mar23.pdf> accessed 19 June 2024.
SEAFO, “Total Allowable Catches and related conditions for Patagonian Toothfish, Deep-Sea Red Crab, Alfonsino, Orange Roughy and Pelagic Armourhead for 2022 and 2023 in the SEAFO Convention Area” (2021) Conservation Measure CM-TAC-01 2021.
NEAFC, “Recommendation 8: 2020 on Conservation and Management Measures for Basking Shark (Cetorhinus Maximus) in the NEAFC Regulatory Area from 2020 to 2023”; NEAFC, “Recommendation 9: 2020 on Conservation and Management Measures for Deep Sea Sharks in the NEAFC Regulatory Area from 2020 to 2023”; NEAFC, “Recommendation 10: 2020 on Conservation and Management Measures for Deep Sea Rays (Rajiformes) in the NEAFC Regulatory Area from 2020 to 2023”; NEAFC, “Recommendation 11: 2020 on Conservation and Management Measure for Deep Sea Chimaeras in the NEAFC Regulatory Area from 2020 to 2023”.
NEAFC, “Recommendation 7: 2020 on Conservation and Management Measures for Porbeagle (Lamna Nasus) in the NEAFC Regulatory Area from 2020 to 2023”.
ibid.
See eg ICCAT, “Replacing Recommendation 19–02 Replacing Recommendation 16–01 on a Multi-annual Conservation and Management Programme for Tropical Tunas” (2021) paras 27 and 28. As explained, this contribution does not consider such decisions as non-use measures but as restrictions on using gear and similar devices.
IATTC, “Resolution C-19-06 Conservation of Whale Sharks” (adopted 2019) 94th Meeting, 22–26 July 2019.
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA) (signed 3 October 2018, entered into force 25 June 2021) OJ 2019 L 73/3. The ten signatories are the five Arctic States, ie Canada, Denmark in respect of Greenland, Norway, Russia and the United States, and China, Iceland, Japan, South Korea and the European Union; see also the discussion by Molenaar in chapter 6.
Moreover, the parties would likely consider allowing exploratory fisheries soon, as the treaty entered into force in 2021. CAOFA, art 5(1)(d).
See NEAFC, “Recommendation 19: 2024 on Area Management Measures for the Protection of Vulnerable Marine Ecosystems in the NEAFC Regulatory Area as amended (extended again until 2027)”, art 5 and Annex 2.
Currently SPRFMO, “Conservation and Management Measure 2023 for the Management of Bottom Fishing in the SPRFMO Convention Area”, available at <https://www.sprfmo.int/assets/Fisheries/Conservation-and-Management-Measures/2023-CMMs/CMM-03-2023-Bottom-Fishing_29Mar23.pd> accessed 18 July 2024.
NAFO maintains two types of closure for defined: VMEs and seamounts. See NAFO Conservation and Enforcement Measures 2023, art 17. See also M. Koen-Alonso et al, “The Northwest Atlantic Fisheries Organization Roadmap for the development and implementation of an Ecosystem Approach to Fisheries: structure, state of development, and challenges” (2019) 100 Marine Policy 342.
SIOFA Secretariat, “Conservation Management Measure 2020/21” in Overview of SIOFA Fisheries, Annex 3, 32.
Agreement on the establishment of the General Fisheries Council for the Mediterranean (adopted 1 November 1949, entered into force 20 February 1952) 126 UNTS 237.
See eg General Fisheries Commission for the Mediterranean (GFCM), “Recommendation GFCM/44/2021/2 on the establishment of a Fisheries Restricted Area in the Jabuka/Pomo Pit in the Adriatic Sea (geographical subarea 17), amending Recommendation GFCM/41/2017/3”. Fishing is prohibited in the area identified as Zone A within this Fisheries Restricted Area.
N. Dudley (ed), Guidelines for Applying Protected Area Management Categories (IUCN 2008), 8. The recently adopted BBNJ Agreement defines a marine protected area in similar terms: a geographically defined marine area that is designated and managed to achieve specific long-term biodiversity conservation objectives and may allow, where appropriate, sustainable use provided it is consistent with the conservation objectives (art 1(9)).
CCAMLR, “Protection of the South Orkney Islands Southern Shelf” (2009) Conservation Measure 91–03.
ibid para 2.
See eg China’s likely position: N. Hong, “Why China is hesitant about endorsing marine protected area proposals in the Antarctic” (China-US Focus, 7 April 2023), available at <https://chinaus-icas.org/research/why-china-is-hesitant-about-endorsing-marine-protected-area-proposals-in-the-antarctic/> accessed 18 June 2024. For more information of CCAMLR MPAs, see the discussion by Guggisberg in chapter 13.
See eg K. Scott, “Area-based Protection beyond National Jurisdiction. Opportunities and Obstacles” (2019) 4 Asia-Pacific Journal of Ocean Law and Policy 158.
For a general overview see R. M. Warner, “Conserving Marine Biodiversity in Areas Beyond National Jurisdiction. Co-Evolution and Interaction with the Law of the Sea” in D. Rothwell, A. Oude Elferink, K. Scott and T. Stephens (eds) The Oxford Handbook of the Law of the Sea (OUP 2015) 752. See also G. Ardito, G. Andreone and M. Rovere, “Overlapping and Fragmentation in the Protection and Conservation of the Marine Environment in Areas Beyond National Jurisdiction” (2023) 9 Front Mar Sci 1094266.
K. Scott, “Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas” (2012) 27 International Journal of Marine and Coastal Law 849.
See eg G. O. Crespo and D. C. Dunn, “A Review of the Impacts of Fisheries on Open-Ocean Ecosystems” (2017) 74(9) ICES Journal of Marine Science 2283.
BBNJ Agreement, art 22(2): the Conference of the Parties shall respect the competences of and, not undermine, relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies, see Klerk in chapter 4.
R. Sumaila et al, “Winners and Losers in a World Where the High Seas is Closed to Fishing” (2015) 5 Sci Rep 8481; J. F. Green and B. Rudyk “Closing the High Seas to Fishing: A Club Approach” (2020) 115 Marine Policy 103855. The suggestion to close the high seas to fishing is discussed and debated, see the discussion by Crespo in chapter 3.
D. Pauly et al, “Fishing Down Marine Food Webs” (1998) 279 Science 860–863.
E. Sala and S. Giakoumi, “No-Take Marine Reserves are the Most Effective Protected Areas in the Ocean” (2018) 75(3) ICES Journal of Marine Science 1166; M. J. Costello and B. Ballantine, “Biodiversity Conservation Should Focus on No-Take Marine Reserves: 94% of Marine Protected Areas Allow Fishing” (2015) 30(9) Trends in Ecology & Evolution 507; O. Aburto-Oropeza et al, “Large Recovery of Fish Biomass in a No-Take Marine Reserve” (2011) 6(8) PLoS ONE e23601. However, there are also studies showing that an MPA that is just a no-take area may not necessarily lead to a healthier ecosystem. See R. H. Thurstan et al, “Are Marine Reserves and Non-Consumptive Activities Compatible” (2012) 36 Marine Policy 1096.
Although marine protected areas provide many ecological benefits, not all of them achieve, or are intended to achieve, all these beneficial outcomes. L. H. Pendleton et al, “Debating the Effectiveness of Marine Protected Areas” (2018) 75(3) ICES Journal of Marine Science 1156–1159.
CCAMLR Report of the Thirty-Fourth Meeting of the Commission Hobart (Australia 19–30 October 2015), 54. The CAMLR Convention, art II, states that the conservation of marine living resources includes “rational use”.
ibid.
CCAMLR, “General Framework for the Establishment of CCAMLR Marine Protected Areas” (2011) Conservation Measure 91–04, available at <https://cm.ccamlr.org/en/measure-91-04-2011> accessed 18 June 2024.
CCAMLR, “Ross Sea Region Marine Protected Area” (2016) Conservation Measure 91–05, available at <https://cm.ccamlr.org/en/measure-91-05-2016> accessed 18 June 2024.
Argentina and Chile first presented a joint proposal for a marine protected area in Domain 1 (Western Antarctic Peninsula and South Scotia Arc) to the CCAMLR Scientific Committee in 2017. This proposal has been under consideration since 2018.
C. Brooks et al, “The Ross Sea, Antarctica: A Highly Protected MPA in International Waters” (2021) 134 Marine Policy 104795, 6.
FAO International Plan of Action (n 11). See, to name a few, SPRFMO Convention, art 1(1)(j) and Conservation and Management Measure 04–2020; IATTC Resolution C-19-02; NPFC Convention, art 1(k) and Conservation and Management Measure 19–02.