Report on the Roundtable Forum on Improving the Management of Straddling Fish Stocks

held at
The Marine Institute, Memorial University
St John's, Newfoundland and Labrador

February 20, 2003

Moderator

Donald M. McRae
Hyman Soloway Professor of Business and Trade Law
University of Ottawa

Rapporteurs

Dr. Moira L. McConnell
Professor, Marine & Environmental Law Programme
Dalhousie Law School, Halifax, Nova Scotia

Susan Newhook
Consultant: Researcher/ Writer
Halifax, Nova Scotia

Introduction

1. This Report summarizes the formal presentations and discussions at the Roundtable Forum on Improving the Management of Straddling Fish Stocks, Marine Institute, Memorial University, St John's, February 20, 2003.
    
2. In order to facilitate an open expression of views, exchange of ideas and exploration of options amongst the participants only the presentations have been attributed to individuals. Accordingly the interventions and discussions throughout the day are summarised with no attribution. A complete list of Roundtable participants and their affiliations is attached.
    
3. Although not intended as a verbatim account, the Report generally follows the order of the agenda. It is divided into four Parts (I, II, III, IV) representing the organizing principle for the agenda and presentations. A glossary of the abbreviations used is attached.

I. Moderator's Opening Remarks

Moderator: Professor Donald McRae, Faculty of Law, University of Ottawa

Professor McRae opened the Roundtable by noting that the task for the day was to provide an opportunity for a full exploration of options to deal with the problem of overfishing of straddling stocks. In order to facilitate discussions, internationally recognized experts specializing in international law, law of the sea and fisheries had been invited to make presentations on key issues, and to participate in the Roundtable discussions. The agenda had been organized to provide an initial consideration of and reflection on the history of the legal and management regimes now in place. This would be followed by the presentation of proposals for responding to the problem. It would then move to an exchange of ideas and the consideration of the various proposals by the participants. The formal presentations were intended as a resource to help generate ideas and discussion; however, the primary objective for the day was for the participants to discuss and exchange ideas.

Professor McRae briefly introduced the nature of the problem and the issues surrounding it. The problem of overfishing of straddling stocks can be seen, in part, as a result of differing management practices for the same stocks: one operating within the 200M national jurisdiction and the other, managed by the Northwest Atlantic Fisheries Organization (NAFO), in waters beyond 200M where the legal regime of the high seas and freedom of fishing prevails. Poor management of the fishery outside Canadian waters has endangered the existence of the stocks. The Moderator noted that this is not a new problem and although the situation today does not yet seem have reached the proportions it did in the 1980s and 1990s, the problems remain fundamental. Two questions must be asked: why is the regime outside 200M, under the auspices of the regional fisheries organization (RFO), NAFO, not working? And, more importantly, why is it still not working after so much time? The fisheries management failures under NAFO are amply documented and well known and include problems such as flag State failure to regulate fishing vessels, lack of uniform and consistent reporting, abuse of quota levels and NAFO procedures as well as a general failure to adopt scientific advice. These failures can be regarded as failures in compliance and enforcement leading to effectively unregulated stocks outside 200M. How did we get to this point and what are the opportunities for rethinking and trying to bring change? These questions are at the heart of the Roundtable's task for the day.

II. The Context

Presentation: The Law of the Sea -The First 40 Years and Developments of the Past Decade

Presenter: Professor Gudmundur Eiriksson, UN University of Peace (Costa Rica)

Professor Eiriksson traced the general development of the law of the sea over the last 40 years leading up to the United Nations Convention on the Law of the Sea (LOSC) in 1982. It has been a period of immense change. There has been a shift from the pre- and post-World War II myth of the ocean and fisheries as unlimited to an understanding that, although the fisheries are renewable, they are not inexhaustible. He noted that the problem of a high level of overfishing in the high seas has been with us for long time, and recalled the action taken by Iceland before the adoption of the LOSC, when it extended and began to enforce its fisheries jurisdiction beyond its territorial sea into the high seas. Although the action was challenged in the International Court of Justice (ICJ), it reflected the emerging consensus that coastal States should have resource ownership and management rights and responsibilities for an area beyond its territorial sea. This led to the legal concept of the Exclusive Economic Zone (EEZ) that extends out beyond the territorial sea to a maximum of 200M, articulated in the 1982 United Nations Convention on the Law of the Sea. At that time it was believed that the Convention had dealt with most problems and importantly had an effective range of dispute settlement processes.

Professor Eiriksson noted that the problem of overfishing on the high seas also led to the development of RFOs in various parts of the world. In his experience they all have suffered from similar structural characteristics: an inability to agree on measures; opting out; poor enforcement and no control over non-members.

The 1982 LOSC does not refer to RFOs - and the provisions in the Convention have been the subject of extensive critique by non-governmental organizations (NGOs) and others who are also critical of the failure on the part of governments to respond to the new challenges facing one of the most important sources of food, the fishery. The Food and Agriculture Organization (FAO) has pointed out the disastrous consequences of failing to respond to this problem. Of the world's major fish stocks, one in five is overexploited and shows no potential for recovery. Another one in ten is depleted or slowly recovering. The cost of enabling the recovery of a fish stock is major.

Having provided this background Professor Eiriksson noted that there has been a call for "new tools" to address this rapidly developing crisis in the world's fisheries; however in his view the problem is that we are not using the legal and management tools that we already have.

The existing tools provide a number of options that could be usefully explored in the Canadian context and a number have been successfully adopted elsewhere to deal with similar issues. He went on to outline and explore the use of these "management tools" - those provisions in the LOSC and other international instruments, particularly as they pertain to the ability to make use of the various dispute resolution options such arbitration, conciliation and access to a specialized tribunal for resolving disputes between States that have ratified the Convention.

He noted that States are now starting to use the International Tribunal for the Law of the Sea (ITLOS) with its specialized fisheries chamber to deal with straddling stocks and other issues. For example, a dispute was recently brought to the Tribunal involving the European Union (EU) and concerns about overfishing of swordfish stocks beyond Chile's 200M. The EU is party to the LOSC and therefore subject to its dispute resolution processes. He noted that although Canada signed the LOSC, it has not ratified it and cannot benefit from these procedures. However it may be able to make use of them for disputes with another Party to the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Law of the Sea Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFA).

UNFA, adopted in 1995, took only two years to negotiate and can be seen as part of a global response to the problem that Canada and many other countries were experiencing with the management of these stocks. UNFA is complementary to the LOSC and provides a comprehensive regime to address the problem which has not been dealt with in detail in the LOSC, a fact which has attracted a great deal of criticism. UNFA emphasizes the use of regional organizations comprising the adjacent coastal States and distant water fishing nations (DWFNs) that fish the same stocks. UNFA has a number of important conservation obligations as well as an enforcement and dispute settlement mechanism that binds States party to it. Canada has ratified UNFA but unfortunately although the EU has signed UNFA it has not yet ratified it.

The 1993 Agreement to Promote Compliance with International Conventions and Management Measures by Fishing Vessels on the High Seas is also on track to coming into force. It was a response to the accelerating problems regarding poor flag State enforcement of responsibilities.

The 1995 FAO Code of Conduct for Responsible Fisheries is not a Convention and therefore not binding on States. Nonetheless, it is proving to be a very influential document setting out authoritative principles and policy for responsible fisheries management. A number of international plans of action have been developed under it, including the Plan to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, and the Plan for the Conservation and Management of Sharks.

Professor Eiriksson argued that this issue is one that requires governments to take a leadership role to address their failure to fully use the existing tools such those outlined and to hold other governments accountable. These failures are part of the management problem facing the fisheries.

He concluded by noting that a key element of successful fisheries management is sound scientific advice and research, and emphasized the importance of heeding the critique advanced by the NGO community.

Presentation: The History of the Northwest Atlantic Fisheries Organization

Presenter: Dr. Douglas Johnston, Professor Emeritus, Faculty of Law, University of Victoria (Canada)

Dr. Johnston gave a brief overview of what he characterized as the three periods of the 79-year history of responding to the issue of straddling stocks: 1929-49, or pre-ICNAF (International Commission for Northwest Atlantic Fisheries); 1949-79, or the ICNAF era; and 1979 to the present, under NAFO. The first and most of the second of these eras make up a period in which there was a traditional law of the sea system characterized by narrow territorial sea limits and an emphasis on high seas freedoms. This meant that most major fisheries, if managed at all, had to be managed through multilateral arrangements including treaties and other instruments, mainly written by fish biologists. The management tasks were framed in scientific idealism: that fish management could be rational and based on scientific findings and on the "best available evidence".

It was during the latter half of the second period that Iceland took the lead in advancing the idea of a coastal State having a special interest in fisheries adjacent to its coastline. The LOSC negotiations were also underway during this period. The Third United Nations Conference on the Law of Sea (UNCLOS III) responded to the need to give more recognition to coastal State claims and to achieve justice between developed and developing countries. The extension of coastal State jurisdiction to 200M was also intended to resolve the problem of straddling stocks.

The LOSC led to new approaches to fisheries management, this time characterized by eclecticism. The previously dominant concern of biological science now had to compete with economics, sociology and other approaches to management. We are struggling with a second generation of "experiments", attempting - often unsuccessfully - to respond to the problem. NAFO is one of these experiments and the catalogue of problems is well known.

Dr. Johnston suggested that questions might be asked as to whether problems, such as the straddling stocks issue, are amenable to traditional international diplomacy and whether international institutions do make any difference at all to State behaviour. How does the structure of NAFO affect the level of compliance? Perhaps the expectations of what an institution such as NAFO can do are unrealistic.

Three differing ways to think about the problems of NAFO were offered as food for thought and discussion:

• Economics - This view adopts a cost-benefit analysis and argues that the real problem is that the States concerned do not place a high value on the straddling stocks or on NAFO and consequently devote few resources to resolving problems.
• Geopolitical - This view focuses on exploring the apparent decline in Canada's success in negotiations at NAFO and sees it as a result of several overlapping factors. When Spain and Portugal joined the EU they gained power and therefore a greater ability to resist pressure and exert influence in NAFO. The dissolving of the Soviet bloc into a number of States also dissolved the discipline that Russia had exerted over the activities of these States. As well, the Soviet collapse reduced the level of investment in science; what research there is, is not well developed in the individual nations. In the case of some stocks, the interests of coastal States such as Canada are simply overwhelmed by those of the DWFNs.
• Institutional - This approach harkens back to international relations theory and to questions such as whether any international organization such as NAFO can create an effective centralized system of fisheries management, when none has succeeded before. Is NAFO doomed to be at the mercy of the most influential member States? What can individual members do to create change? This approach brings into play issues such as whether a cycle of retaliation can be avoided, and what would be lost if Canada undertook, for example, unilateral enforcement. Another question that should also be considered is whether an organization can be run effectively if the scientific information behind decision-making comes overwhelmingly from one country (i.e., Canada) and is therefore mistrusted by other Parties.

Dr. Johnston concluded by suggesting that rather than focusing on the negative it might be useful also to identify the strengths in NAFO. For example, in his view it is about the right size for an organization, with sufficient members to allow for voting influence by members who don't have an interest. On the other hand the voting procedure, which operates on simple majority rule, can be a problem in that a substantial number of States might not agree with a decision. He also raised the question whether the Scientific Council is well placed in the organizational hierarchy: should it be shifted it to a less subordinate role in the decision-making process?

Finally, he noted the need to consider the overall problem: the lack of flag State enforcement and lack of capacity -or in some cases, political will-to improve it. He concluded by suggesting that countries could consider devolving their enforcement responsibilities and powers to NAFO or to an external agency, at least with respect to a straddling stock currently within NAFO.

Presentation: The 1995 United Nations Fish Stocks Agreement

Presenter: Dr. Stuart Kaye, Dean of Law, University of Wollongong (Australia)

Dr. Kaye presented a brief overview of the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Law of the Sea Convention Relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks (UNFA). 148 States participated in the negotiation process including the EU and NGOs. It took only two years to negotiate (1993-1995) and came into force with the 30th ratification in December 2001. Thirty-two States are now party to it, including Canada. The EU signed but has not ratified and many of the States Party are located in the Pacific. UNFA is subject to review for amendment five years after it comes into force. The objective of the UNFA process was to negotiate an agreement to clarify rights and responsibilities with respect to highly migratory species and straddling stocks. It has 50 Articles and 2 Annexes and is designed to operate in conjunction with the LOSC - in effect to resolve some issues that were creating conflicts and had not been fully dealt with in the 1982 LOSC.

Dr. Kaye set out what he saw as the four key elements of UNFA: the precautionary approach; the duty to cooperate; dispute resolution procedures; and enforcement provisions. The precautionary approach is set out in Article 8:

States shall apply a precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment.

He noted that the other three elements are probably more important to Canada at this point. The duty to cooperate places an obligation on coastal States and DWFNs to cooperate: to introduce measures which will be compatible across the biological range of a stock. This cooperation is to be direct or through an RFO and must occur within a reasonable time. In Dr. Kaye's view, part of the duty to cooperate includes the core idea of compatibility of management systems and measures. That is, the management systems for straddling stocks within and outside 200 M are to be compatible for biologically unified stocks. He noted that the idea of biological unity has already been a source of some dispute. The concept of compatibility also includes concern for the dependence of States upon the fishery and a responsibility to ensure that there is no harmful impact. The RFOs have a central role in this system. One of the problem areas is that the UNFA does try to impose the system on non-member third states: it is unclear that this can be done under international law.

The dispute resolution procedures are also very important, although limited by the fact that they require the States in dispute both to be Party to UNFA. Under UNFA if there is no agreement within a reasonable time, parties can refer matters for dispute resolution. UNFA also adopts the dispute settlement procedures in Part XV of the LOSC, which means that provisional measures of a practical nature can be agreed, or those provided for under Part XV can be applied. An example of this is found in the Southern Bluefin Tuna Cases.

Dr. Kaye also briefly described the enforcement procedures under UNFA which involve a role for flag State enforcement, port State control and also provide RFOs with some ability to enforce, both on the high seas and in the event that a flag State has indicated that it is not going to investigate or otherwise respond to a breach. This is quite controversial. For example, when the EU signed UNFA, it entered a reservation with respect to this matter, indicating that as flag State it would investigate any alleged breaches.

Roundtable Discussion

In the ensuing discussion on these presentations, one participant argued that the problem of overfishing could be conceptualized as involving two key matters: first, fishing technology and practice is rapidly changing and is out of step with a regulatory regime that is developing too slowly under international law; secondly, the LOSC has a fundamental flaw that is the root cause of the problems now being experienced in Newfoundland and Labrador, in that it has separate regimes for the continental shelf and the water column when in fact they are significantly related. The arbitrary line of 200M does not take into account fish distribution, although the continental shelf regime does take into account the natural configuration of the shelf and allows for flexibility on the placement of the "line" with respect to continental shelf resources.

In a response to a question for clarification about possible "third generation" organizations or approaches, Dr. Johnston spoke of the potential for a world governance response if, for example, an international food security crisis is linked to the fisheries decline. In those circumstances, one might argue for a regime under which the coastal State could be viewed as a trustee in respect of some stocks for future generations, recognizing thereby some notion of intergenerational equity.

One participant was of the view that the problem within NAFO relates to the polarization of views about its role. The Canadian perspective, in keeping with NAFO's mandate, is that it is conservation oriented and has responsibilities as a stock manager. The other view is that NAFO is simply a system for allocation of quotas and stock access rights. In addition, it was pointed out that, although the argument regarding the value of disinterested States was interesting, it also meant that countries with very little economic stake in the stock were having a significant influence on outcomes. In addition Canada, as the country that is most involved in scientific research and in the enforcement question, is not seen as impartial.

III. Presentations on Management Options

Presentation: A New Approach to Fisheries Management Outside 200 Miles: A Newfoundland & Labrador Perspective

Presenter: Mr. Mike Samson, Deputy Minister, Department of Fisheries and Aquaculture, Government of Newfoundland & Labrador (Canada)

Deputy Minister Samson began by saying that while the history of NAFO and the legal system is important, it is also important to put a human face to that history. He noted that the population of Newfoundland and Labrador has decreased by nearly 40,000 people since the 1992 moratorium. Most of these were rural (and usually younger) people leaving their home communities to seek work elsewhere in Canada. He pointed out that the out-migration continues and many communities are now in crisis. Although others had noted that international law has changed a lot in a short time of 50 years, the last 10 years have seen extremely rapid changes in Newfoundland and Labrador and its people.

Mr. Samson outlined the history of NAFO from the perspective of Newfoundland and Labrador. He noted that NAFO was created to "to contribute through consultation and cooperation to the optimum utilization, rational management and conservation of the fishery resources of the Convention Area." However it had not fulfilled this role, a fact particularly evident before 1995. Major problems led to the collapse of straddling stock fisheries. They included: countries using flag of convenience vessels; abuses of the objection procedure (specifically in the case of the EU); and the combined practices of setting quotas unilaterally, and proceeding to exceed them.

After the "Estai" incident in 1995 there were marked improvements, including a 100% observer programme, 100% dockside monitoring, minimum mesh sizes for groundfish and minimum fish size for turbot.

The Government of Newfoundland and Labrador is now concerned that there is again a rise in problems throughout NAFO regulated areas: directed fisheries for moratoria species, misreporting, exceeding allocations, mesh size violations, non-submission of observer reports, adoption of quotas inconsistent with scientific advice, resistance to UNFA measures and a concerted effort to reduce observer coverage. Given the very slow recovery of the stocks, this rise in non-compliance suggests the possibility of "another 1992."

Mr. Samson pointed out that in order to avert this potential crisis, the Government of Newfoundland and Labrador has developed a proposal for a better management structure. The Government's objective is to have,

a conservation-oriented & scientifically based management regime on the nose & tail of the Grand Banks and the Flemish Cap which allows for sustainable fishing & resource rebuilding.

This is part of the fisheries objectives that have been articulated globally, for example in the World Summit on Sustainable Development (WSSD) (Johannesburg), which supported sustainable management of straddling stocks. Nations including Canada have agreed to achieve sustainable fisheries by 2015. Since NAFO continues to be ineffective, more action is needed.

One solution is custodial management. It was recommended by the House of Commons Standing Committee on Fisheries and Oceans as a means of ensuring better management both inside and outside the 200M limit. The Government of Newfoundland and Labrador's proposal draws upon this idea but has additional elements. Mr. Samson suggested that the proposal could work within the NAFO framework in the event of modifications to NAFO's operational role, to provide for enhanced coastal State responsibilities with respect to some specific stocks in which Canada has the most interest.

Custodial management can be defined as:

The management by the adjacent coastal state of designated fish stocks which straddle the 200-mile Exclusive Economic Zone for the purpose of applying consistent and conservation based measures.

The Province's proposal is that Canada, as the coastal State, will assume responsibility for: management of straddling stocks, TACs, and conservation measures; and that it will enforce the consistent application of measures inside and outside 200M, including monitoring and surveillance. However it was also proposed that Canada would respect the historical shares of other nations.

Under this proposal all that is required is shifting some responsibilities to the coastal State. NAFO would retain responsibility for the Scientific Council, stock assessments, coordination of research and the provision of advice. It would also continue to deal with access and allocation issues and to manage stocks in the NAFO Regulatory Area, as well as developing and levying sanctions.

From the Newfoundland and Labrador perspective, withdrawal from NAFO is not ideal. In fact, if NAFO could start to genuinely fulfill its mandate of conservation and effective management that would be quite acceptable to the Province. Withdrawal from NAFO is not an ideal solution because unless there is a structure to replace it, the stocks would be left even less protected and less regulated.

Nearly 25 years of poor management and failures in NAFO suggest that NAFO is unlikely to reform, or to ever meet its mandate. If there is to be change within NAFO there need to be clear goals and a timeline for achieving them. Mr. Samson emphasized that it cannot be forgotten that most people in Newfoundland and Labrador are very disappointed and disillusioned with NAFO and by the failure to take action on its myriad problems. In the event of further failures, it was suggested that Canada should consider unilateral withdrawal from NAFO. It was noted that there is precedent for unilateral action to generate change in international law, for example, the Truman Proclamations of 1945, the Icelandic "cod wars" and the "turbot war".

Mr. Samson concluded by urging the federal government to take action. He said that since it is clear that NAFO is failing to meet overall conservation objectives, the status quo is unacceptable: NAFO management is contributing to lack of recovery of the remaining fish stocks. The Government of Newfoundland and Labrador believes that the adapted custodial-management concept it proposes is a unique approach to a unique situation. Mr. Samson said it must be understood that this is an issue of major political and economic significance to the people of Newfoundland and Labrador. With a billion dollars in food products, and a way of life, at stake, the topic of custodial management is in the public discourse and in the media "from morning till night". The people of Newfoundland and Labrador increasingly view the Canadian government's failure to take decisive action in the matter as an illustration of disinterest and its relative insignificance among broader international and policy issues.

Presentation: Implications of Custodial Management. Reconciling Management Objectives and Outcomes

Presenter: Professor Phillip Saunders, Dalhousie Law School, Dalhousie University (Canada)

Professor Saunders began by noting that his presentation had been prepared in response to the custodial management concept laid out in the Standing Committee report, and that the Newfoundland and Labrador proposal seems to be a more sophisticated approach.

Before examining custodial or any form of management, Professor Saunders argued that it is useful to review the meaning of the concept of "management." With respect to fisheries management there is a number of very broad components, including:

• Differing kinds of knowledge with various weightings (scientific, industrial and socioeconomic);
• Fundamental organizing principles around which management must be structured. In part, these imply objectives, e.g., maximum sustainable yield (MSY), precautionary principle;
• Allocation within overall limits-many fisheries management systems will need to allocate between and among different users, which is one of the most politicized aspects of any management regime;
• Compliance and enforcement, which itself may have a number of elements such as monitoring controls and surveillance;
• Jurisdiction: a critical component. There must be a State or international organization with recognized authority to exercise management;
• Dispute resolution mechanisms.

Professor Saunders briefly considered the 1982 LOSC in light of these elements and pointed out a number of problems in the way the LOSC deals with straddling stocks. He said one of the most significant of these problems is the failure to assign jurisdiction over these stocks. The Canada/EU dispute and the UNFA negotiations also showed that a fundamental problem was this critical gap in the international law of the sea. In his view, UNFA can be seen as the solution that was devised to respond to the problem of no assigned jurisdictional competence. However, this does not solve what may be the heart of the larger problem: even though the gap is, in principle, filled, there are now differing ideas of what jurisdictional competence relates to. For the EU, the current dispute in NAFO is about allocation -- Canada wants more. Meanwhile, Canada sees the dispute as about conservation and management principles. These difficulties have persisted despite UNFA coming into force; the Standing Committee proposal regarding custodial management is a response to them.

An analysis of the custodial management regime as presented in the Standing Committee report is that it involves an assertion of unilateral control, on a geographical basis, of the water column out to the limits of the continental shelf. This would amount to an extension of Canada's 200M EEZ well beyond what is accepted in international law. As has been recognized by the Committee itself, this would be perceived to be based on Canadian self-interest and would receive very little support outside Canada. It is also important to realize that if Canada asserts such a right other States may also then claim larger zones in order to secure their interests.

There were a number of other difficulties with the custodial management concept as proposed by the Standing Committee. These include the fact that, irrespective of title, it essentially takes on all of the same management functions of the EEZ regime, at least with respect to fisheries. The custodial management proposal advanced by the Government of Newfoundland and Labrador may also suffer from the same problem.

Professor Saunders pointed out that a key factor regarding any legitimacy that Canada may be able to claim is that there is in principle no longer any jurisdictional gap - Canada may not like the structure and operation of an RFO that seems consistent with the UNFA regime, but it has agreed to UNFA. Disagreeing with a solution is not the same as saying there is still a legal vacuum that needs filling. This makes the current situation significantly different from the situation that Canada faced pre-1995.

He concluded by agreeing that the current situation is not acceptable, but perhaps the response is not to equate jurisdiction with management; rather, it may be to ask how the management system needs to be changed. Extension of jurisdiction was proposed by the Standing Committee as a solution to two problems:

• the NAFO decision-making structure, objections procedure and lack or failure of dispute settlement; and
• inadequate enforcement and compliance.

If those are the problems then there may better solutions, such as ratifying the LOSC and making use of its dispute settlement procedures. Professor Saunders noted that it is also important to make sure that a new management approach does not simply entrench ideas already proven to be incorrect or unsuccessful.

Presentation: The South Pacific Experience

Presenter: Dr. Stuart Kaye, Dean of Law, University of Wollongong (Australia)

Dr. Kaye focused on the importance of using traditional tools such as diplomacy and targeted negotiation, particularly, for resolving problems such as flag of convenience vessels and unauthorized fishing of straddling stocks. He described Australia's experience in two recent cases. Australia's continental shelf extends beyond its EEZ in several areas, both around the mainland of the island continent and around its offshore islands. In addition, in some areas there are numerous seamounts that rise through the water column, are very rich in biodiversity and also attract fish stocks (much like the edge of the Grand Banks).

The first case study dealt with the Orange Roughy fish stocks. A lack of knowledge about the life cycle of the Orange Roughy (it does not propagate until it is 40 years old), led to overfishing and almost complete stock depletion in national waters. The stock also occurs outside the EEZs. The Tasman Rise and the Challenger Plateau are two fishing areas of particular importance and had been the source of disputes. As of 1998 there is a Memorandum of Understanding (MOU) between Australia and New Zealand regulating fishing activities in these areas. Australia looks after enforcement and compliance monitoring in one area, and New Zealand looks after enforcement in the other area through a requirement that vessels land their catches in New Zealand. The MOU can be regarded as creating an RFO along the lines set out in UNFA, with an ability, particularly with respect to vessels under the flag of other UNFA members, to exclude flag vessels of countries that are not part of the RFO.

A crisis developed in 1999, when three South African-flagged ships and a fourth ship registered in a flag of convenience country, Belize, began fishing in an area close to Australia and covered by the MOU. When all four ships ignored orders to leave, Australia appealed to the flag States. The Government of South Africa, also a Party to UNFA (although UNFA was not in force at the time) cooperated and ordered its flag vessels to leave or face deregistration at sea. The vessels departed immediately. Similar action by Belize (which was not a Party to UNFA) was ignored by the vessel until the Belizean government subsequently authorized application of Belizean law by Australian authorities - in effect giving the Australian Navy the right to arrest the ship under Belizean law. The ship left before the naval vessel left port.

Dr. Kaye noted that the case was highly publicized in the Australian media and that there had been calls for a unilateral extension of Australia's EEZ. However, the case was rapidly and successfully resolved within two weeks through diplomatic efforts, at a low cost and without any use of force. The ultimatums were successful, both in the event and in the longer term: other vessels have stayed clear of the area ever since.

Dr. Kaye's second case study involved the Patagonian toothfish. The stock occurs off a remote Australian territory in the Southern Ocean, closer to Antarctica than to Australia, in an area covered by the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). Canada, the US, the EU, and South Africa are among the States that are party to the Convention

Given the immense distance from Australia and the extreme weather and ocean conditions in the area it is difficult to monitor and enforce fishing laws. There are frequent problems of unauthorized fishing. In the case described by Dr. Kaye a vessel was fishing in Australian waters just off Heard Island. An Australian enforcement vessel took action and was then engaged in a hot pursuit that lasted for 14 days as the offending vessel sailed towards South Africa. Through diplomatic efforts Australia was able to obtain assistance from the South African authorities, which used one of their vessels to take the Australians out to meet the ship on the high seas. The Australians then boarded from a second smaller boat flying an Australian flag. Again, in Dr. Kaye's opinion, a clear message was sent that Australia would vigorously enforce its jurisdiction and take its responsibilities seriously. This was yet another instance of cooperative action, perhaps facilitated by the fact that South Africa is party to CCAMLR. It has territory in the CCAMLR area and also has problems with illegal fishing.

It was also pointed out that another strategy to deal with unauthorized fishing of this stock has been created using a market-based regulatory tool. A catch certification scheme for the Patagonian toothfish has been developed under which CCAMLR parties will only buy catch that is certified as caught in accordance with the regulations. However, the legality of this scheme, which also requires catch registration, had never been tested under international trade law.

Dr. Kaye concluded that both cases illustrate an important point: determined bilateral diplomacy, in combination with political will and government resources, can be highly effective both in the protection of fish stocks and in making it clear to others that a country will enforce fisheries protection requirements.

Presentation: What are the Options?

Presenter: Dr. Douglas Johnston, Professor Emeritus, Faculty of Law, University of Victoria (Canada)

Dr. Johnston's presentation focused on developing some specific responses that could be made to Canada's straddling stocks problem. Many of these responses drew on ideas that he had expressed in his earlier presentation on the history of NAFO and ways to characterize or frame the NAFO problem. He outlined a wide range of options for improvements to NAFO, some of which could be undertaken within the NAFO structure and others which would involve bilateral or multilateral diplomacy, or unilateral action on Canada's part. He noted that "none is totally satisfactory," but as elements of a well-organized strategy many might be successful. (An outline of the options presented is attached.)

He structured his suggestions on three levels: first, actions that might be taken immediately and which are not dependent on other developments such as Canada's ratification of the LOSC or EU ratification of UNFA; second, actions that could be taken in parallel with the first-level options and in the event that "first wave" initiatives were unsupported or did not address the problem; and third, dispute-management options.

The first-level options begin with operational improvements to NAFO. These include: pressure for more diligent inspection and more prompt enforcement action on reports of infringements; better information reporting; a "ships of shame" policy for persistent violators; a blacklisting system; engaging the support of marine insurers and the coordination/harmonization of flag State penalties for persistent violations and "rogue ships"; and the formation of alliances with NGOs and industry to promote compliance and to publicize or censure bad behaviour.

Other first-level options addressed extensive reform of NAFO itself: the amendment and, if necessary, renegotiation of its structure, principles and procedures. These include the system of decision-making, the objections procedure and compliance framework. As well, Dr. Johnston suggested a reorganization of science and management tools, giving greater influence to the Science Council.

Other first-level strategies that could be pursued immediately included a buy-out of non-Canadian quotas for straddling stocks (which might include tradeoffs with the EU for access to stocks inside the EEZ), and targeted bilateral diplomacy outside the NAFO framework, to explore solutions to persistent disagreements over and/or flouting of NAFO policy and quotas.

Many of the second-level options could be pursued concurrently with first-level options, or could come into play in the event that the first-level options fail or run into major difficulty. They employ multilateral diplomacy and unilateral action by Canada.

Multilateral options include beginning a process for taking leadership in ocean related issues, particularly preparing for the ratification, review and possible revision of the LOSC (RUNCLOS) and the review and possible revision of UNFA (RUNFA), both of which will be open to review and amendment within the next 3 years. Although the context of this meeting is fisheries, Canada has many other ocean resource interests that might benefit from such an engagement. For example, Canada has interests such the newer seabed minerals (polymetallic massive sulphide deposits) on the west coast. Dr. Johnston noted that an active engagement in the RUNCLOS review process would also serve to improve Canada's faded reputation in the LOS community, allow Canada a voice in the shaping of future LOSC provisions and enable Canada to make use of the third-level options.

Unilateral options included a declaration of special responsibilities for Canada as the closest adjacent EEZ. These responsibilities could be described as guardianship, stewardship, custodial management or trusteeship (protection of the resource for future generations). Among other unilateral options: an appeal to the special interests of other coastal States (particularly the US); encouraging an international agency (NGO or other) to declare an "eco-crisis" in world fisheries, or more specifically on the Grand Banks, which would justify special powers and responses; and such potentially controversial and "high-risk" acts as the pursuit and arrest of rogue vessels, and countermeasures including the freezing of a recalcitrant flag State's Canadian assets.

The third-level options outlined by Dr. Johnston would be largely dependent on Canada ratifying the LOSC and/or the EU ratifying UNFA. He set out a number of alternative dispute resolution/management options including a call for technical assistance, conciliation, requests to the ICJ, or perhaps ITLOS, for an advisory opinion, arbitration, or as a last resort, litigation before the ICJ or ITLOS.

IV. Roundtable Discussion of Legal and Management Options

The Moderator opened the discussion and referred to the comprehensive range of options that had been presented. He invited participants to add options or ideas that might not yet have been referred to, or to comment on the options that had been discussed so far.

One participant suggested that the various options could be considered under the following headings.

First, accept the status quo, but work for some improvements within the existing framework.

Second, accepting that things are worse than they were 25 years ago, withdraw from NAFO, with the consequence that there would be no enforcement beyond 200 miles where there would be essentially an unregulated fishery.

Third, reform NAFO by abandoning flag-state enforcement and delegating enforcement to an international body.

Fourth, adopt a form of "custodial management", either through a unilateral extension of jurisdiction or through working with NAFO to establish a system where stocks that were mostly located within the NAFO area and only partly in the Canadian 200M EEZ would be managed by NAFO and stocks that were mostly in the Canadian EEZ and only partly in the NAFO area would be managed by Canada.

Fifth, amend the LOS Convention so that the coastal state would have jurisdiction over groundfish both within 200M and beyond to the outer limit of the continental shelf.

Sixth, a variation would be to treat groundfish as being in close association with the shelf, on which in fact they depend and thus include them within the definition of species that are subject to the continental shelf jurisdiction of the coastal state.

The following discussion ranged over a wide area. Nevertheless, certain themes emerged.

Unilateral Action by Canada

The view was expressed that there was need for bold initiatives and dramatic action by Canada and that Canada should regain its leadership role in respect of fisheries and law of the sea issues more generally. Although the "turbot war" was cited as an example of decisive action by Canada, there was a widespread view that action by Canada should be in accordance with international law. Some participants mentioned the use of trade sanctions and seeking to reduce fishing subsidies as measures that Canada could pursue. It was noted that port closures and exposure of countries whose ships repeatedly violate quotas and conservation practices, were measures that could be taken within the boundaries of international law and treaties.

The view was also expressed that Canada should act where appropriate to assist in the change and development of the law. There was also discussion around the idea of declaring an eco-crisis on the Grand Banks. One participant felt that a growing international interest in high seas conservation issues among NGOs would create a supportive climate for discussion of protective zones straddling stocks. Other participants had reservations about this approach.

One participant encouraged the Roundtable to focus less on changing international law and more on using "the tools that are already there."

Strengthening UNFA

It was suggested that Canada should take the lead in "elevating" the image and reach of UNFA in the international community. This was because UNFA was developed in part to help solve NAFO problems, and it could be particularly helpful in addressing the issues under consideration. Actions would include encouraging the EU to become a party to UNFA. One participant suggested that European NGOs, especially in the environmental area, should be made aware of the fact that the EU is delaying action on an important precautionary convention. However, it was noted that ratification of UNFA by the European Union was likely to occur within the next several months. However, there was concern that if Canada moves aggressively now to try to use UNFA and other "sticks", the EU may back away from UNFA ratification.

The inclusion of the EU within NAFO was seen as an opportunity to take advantage of the dispute settlement provisions of UNFA to resolve issues that otherwise would remain as unresolved disputes.

Ratification of the Law of the Sea Convention

There was considerable discussion of options that involve using the LOSC regime to address current and future problems. A number of participants expressed the view that Canada needed to take the immediate step of ratifying the LOSC. One participant noted that Canada would be hard put to appear above reproach in pursuing enforcement strategies under UNFA if it still has not ratified the LOSC. Concerns were raised as to whether LOSC ratification commanded sufficient federal attention. However, reservations were also expressed about ratification, one participant noting that it should not occur until experience had been gained in UNFA following EU ratification.

There was also concern expressed as to whether in order to ratify the LOSC Canada would have to change its laws allowing it to take enforcement action outside 200M. One participant expressed the view that it would not be necessary. Many countries have legislation that is inconsistent with a convention to which they are a Party. As a practical matter, conformity with the Convention only really becomes an issue when a country acts against another Party on the basis of a law that is inconsistent with the Convention.

The specific advantage of ratifying the LOSC in this context was seen to be access to procedures for legal recourse such as the dispute settlement procedures, which again could be used to ensure compliance by EU states of the NAFO obligations.

Another advantage of ratifying the LOSC was to ensure that Canada's voice and its concerns would be heard in any amendments to the LOSC in the future. In this regard, participants discussed possible changes to the LOSC regime. One set of proposed changes would "marry the law of the shelf with the law of the water column," in particular, the proposal referred to earlier to change the limits of coastal State jurisdiction at 200M to include "the limit of distribution of groundfish stocks on the continental shelf." As well as, or in concert with, this change in the limit of coastal State jurisdiction, is was suggested that the LOSC might extend the definition of sedentary species (those species which are immobile or unable to move except in constant physical contact with soil) to include groundfish, and/or whether the continental shelf provisions might be amended to say "animals of the shelf".

As background to this argument, the participant noted that groundfish, as is clear from the very name, live in close association with the continental shelf: if the shelf was not there, the fish would not be there either, and in fact some species spend up to half their lives buried in the sea floor. While acknowledging that it is a small change that might take years to effect given the pace of change in international law, it was noted that any time frame "less than 25 years is a big improvement over NAFO."

On the question of the likelihood of passing even small amendments to the LOSC, and the time frames involved, it was pointed out that although discussion of amendments could begin as soon as November of 2004, there was a need for a "softening-up" process much in advance, as various nations' agendas jockey for priority in the deliberations.

Reform of NAFO

Options for the reform of NAFO were explored. One participant pointed out that the idea of complete withdrawal from NAFO was self-defeating. Although arguably Canada and Newfoundland and Labrador are worse off now that they were 25 years ago, before NAFO, withdrawal from NAFO would result in the loss of such Canadian enforcement power as NAFO confers outside the 200M limit; it would lead all countries to fish unimpeded outside the limit, and in a short time there would be no fish.

It was suggested that the most meaningful, albeit radical, reform would be to abandon flag-state enforcement and delegate it to a new and impartial NAFO agency. However, this would require money for NAFO ships and people to enforce NAFO policies on everyone, including the coastal State.

There was widespread frustration among participants involved in and with NAFO that Canada has so large a stake in NAFO's success and so small an influence. In part, there was concern that Canada itself may be responsible for this. Although the quality of Canada's representation in NAFO was praised, there was a concern that NAFO issues, in general, command insufficient federal attention. There was a worry that NAFO issues are ignored to avoid "rocking the boat" in other international discussions and negotiations, or that they were used as bargaining chips for other, higher, DFAIT priorities.

Within NAFO, it was noted that with only one vote out of 15, Canada has no more say than a distant-water nation which has very little involvement in NAFO fisheries. This makes it virtually impossible to accomplish much on many issues of vital importance to Canada. This issue was particularly distressing for the participants who had long experience with NAFO, and who felt that the Organization had changed fundamentally with the entry of states with minor dependence on, and no real conservation concerns in, NAFO stocks upon which Canada is so reliant. The view was expressed that "there will be more and more votes and we're going to lose them every single time."

The option of changing the voting process in NAFO, so that States with larger economic and conservation interests in a particular stock have more say in its management was explored. It was pointed out that there are precedents for weighted voting in other international organizations, particularly in the shipping industry. For example, in the International Maritime Organization, members' influence on many decisions is proportional to their involvement in the industry. This is achieved though specific minimum tonnage requirements for ratification leading to entry into force of a convention or adoption of changes to conventions.

There was a range of views regarding how aggressive Canada should be in pressuring other NAFO members. Some were doubtful that quiet but persistent lobbying within NAFO and other arenas can be helpful, particularly in view of skepticism regarding the importance of fisheries issues among Canada's foreign policy priorities. Others felt that quiet persistence can work, particularly as the EU comes closer to ratifying UNFA.

Bilateral Diplomacy

There was extensive discussion of the possibilities of bilateral diplomacy. Many felt that progress could not be achieved working solely within NAFO. In particular, it was observed that, as more countries join the EU, NAFO is evolving into an organization whose principal players are Canada and the EU. Hence, Canada had to deal with the EU bilaterally. One speaker emphasized the importance of fostering some kind of mechanism that will improve relations between the Canada and the EU on fisheries matters: "We have to find a way to convince [the EU] that it's worth working with us."

Special Interest of the Coastal State

A number of speakers felt that there had to be some recognition of the special interest of the coastal state in the stocks beyond 200M. This was the essence of the proposal of Newfoundland and Labrador for custodial management. It was also considered in discussions of amendments to the LOSC and of the reform of NAFO. The proposal for jurisdictional tradeoffs between NAFO and Canada was considered in this context. Under this scenario, Canada would be responsible for stocks located "mostly" in the Canadian zone, and a renewed and improved NAFO would be responsible for those "mostly" in the NAFO zone. It was noted that the compromises required on both sides might or might not be palatable: Canada would have to cede some power within its EEZ; and NAFO would have to give up control over cod.

It was also suggested that a form of custodial management could be implemented through quota buyouts. Where Canada had the major share of a quota it could seek to buy out the remainder of that quota. Once it had one hundred percent of the quota, Canada could then manage that stock both inside and outside 200M. This would effectively be custodial management. It was noted that some companies had been looking actively at this.

There were, however, several reservations expressed. The cost of such buyouts and questions as whether buyouts would be permanent or done annually were noted. Questions were also asked about how quota value was to be established? The difficulty of dealing with new entrants was also referred to. It was pointed out that there is nothing to stop an EU-based fish company from selling its quota and then re-registering a boat under a flag of convenience state outside of NAFO and returning to the same fishing grounds, essentially selling the same fish twice. Attempts to arrest such vessels would likely lead to Canada being the subject of international complaints

It was also pointed out that in some cases, small quotas were held by States to cover bycatches, and thus there would be little incentive to give them up. The idea that the issue was not simply economic was also noted by a participant who observed that some countries are in the fishing business not for the money, but "to employ people and keep them off the streets." Those countries would see the loss or sale of quota as equally unacceptable since it could lead to a "loss of lifestyle that could ultimately result in anarchy in some communities."

Conclusion

The Moderator closed the Roundtable Forum noting that the objective of the day had been to get as many options on the table as possible and, clearly, this had had been accomplished. There had been no intention for the Roundtable to reach consensus; however, it was evident that there was general agreement that it was a common objective to have a conservation-oriented and scientifically based management regime on the nose and tail of the Grand Banks and the Flemish Cap which would allow for sustainable fishing and resource rebuilding. There was a widespread view of the desirability for Canada to have access to legal remedies such as those available under the LOSC and UNFA. In addition, although there was no optimism about immediate change in NAFO there was also the view that withdrawal from NAFO, if there is no other system in place to conserve stocks, is not in Canada's interest. Overall the discussion throughout the day had emphasized the vital importance of this issue. Poor management outside 200M requires responsive action by the Canadian government.

March 21, 2003

Annex 1: Glossary of Abbreviations

CCAMLR Convention on the Conservation of Antarctic Marine Living Resources

DWFNs distant water fishing nations

EU European Union

EEZ Exclusive Economic Zone

FAO Food and Agriculture Organization

ICNAF International Commission for Northwest Atlantic Fisheries

ICJ International Court of Justice

ITLOS International Tribunal for the Law of the Sea

LOSC United Nations Convention on the Law of the Sea

M nautical mile

MOU Memorandum of Understanding

NAFO Northwest Atlantic Fisheries Organization

NGOs non-governmental organizations

RFO regional fisheries organization

UNCLOS III Third United Nations Conference on the Law of Sea

UNFA United Nations Agreement for the Implementation of the Provisions of the United Nations Law of the Sea Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

Annex 2: PARTICIPANTS OF THE ROUNDTABLE FORUM ON IMPROVING MANAGEMENT OF STRADDLING STOCKS - FEBRUARY 20, 2003

PARTICIPANTS

Mr. Alastair O'Reilly Fisheries Association of NF & LAB

Mr. Earle McCurdy Fish, Food and Allied Workers Union

Mr. Ray Andrews Fishery Products International

Mr. Michael O'Connor High Liner Foods Inc.

Mr. Brian McNamara Newfound Resources Inc.

Mr. Clary Reardon Department of Fisherier and Agriculture, Province of Nova Scotia

Mr. Patrick McGuinness Fisheries Council of Canada

Mr. John Angel Canadian Association of Prawn Producers

Mr. Roger Stirling Seafood Producers Association of Nova Scotia (SPANS)

Mr. Bruce Chapman Groundfish Enterprise Allocation Council

Mr. Tom Dooley Department of Fisheries and Aquaculture, Province of Newfoundland and Labrador

Dr. Arthur May Newfoundland and Labrador Provincial Advisory Board

Mr. Josh Laughren World Wildlife Fund Canada

Dr. Jon Lien President, Minister's Advisory Council on Oceans

PRESENTERS/MODERATOR/RAPPORTEURS

Professor Gudmundur Eriksson UN University of Peace, Costa Rica

Professor Phillip Saunders ; Dalhousie University, Environmental Law

Mr. Mike Samson Department of Fisheries and Aquaculture, Province of Newfoundland and Labrador

Dr. Stuart Kaye ; ; University of Wollongong, Australia

Dr. Douglas Johnston ; University of Victoria, (Emeritus)

Professor Don McRae ; University of Ottawa Law School

Dr. Moira McConnell ; Dalhousie University, Environmental Law

Ms. Susan Newhook ; ; Consultant, Beachrock Productions

Annex 3: WHAT ARE THE OPTIONS?

I Level One (i.e. actions that might be taken without delay)

A.  Operational Improvements

1. Press other NAFO states to undertake more diligent inspection and prompter enforcement action on receiving reports of infringements

2. Increase timelines and detail of information reporting

3. Implement a "ships of shame" policy for persistent violators.

4. Re-introduce a blacklisting system

5. Engage marine insurers in a policy of disclosure of compliance record

6. Pursue coordination/harmonization of domestic flag state penalties for infringements of NAFO measures by "rogue ships"

7. Encourage alliances with non-governmental institutions to ensure international transparency and to put pressure on non-compliant member states

8. Seek out a role for industry in the promotion of compliance

B. Reform of NAFO (i.e. modernization, through amendment or renegotiation, if necessary)

1. Principles and objectives

2. Structure

3. Decision-making

4. Science and management tools

5. Compliance framework

6. Dispute settlement

7. Procedure for amendment

C.  Buy Out of Non-Canadian Options

D.  Targeted Bilateral Diplomacy

II Level Two (i.e. if Level One initiatives are unsupported or prove non-viable)

A.  Multilateral Diplomacy (i.e. extra-NAFO)

1. "RUNCLOS" (i.e. ratification + review + possible revision of 1982 LOS Convention)

2. "RUNFA" (i.e. review and possible revision of UNFA)

B.  Unilateral Options

1. Precedents

2. Special interest of the coastal state

3. Special responsibility of the adjacent EEZ state

4. (i)guardian; (ii) steward; (iii) custodial manager; (iv) trustee ("intergenerational equity")

5. Eco-crisis declaration

6. Pursuit and arrest of rogue vessels

7. Counter-measures (i.e. "self-help" retaliation by victim of "international wrongful acts")

8. e.g. freezing of flag state's assets in Canada

III Level Three (i.e. dispute management scenarios)

A.  Technical Assistance

B.  Conciliation

C.  Advisory Opinion

D.  Arbitration

E.  Litigation before ICJ or ITLOS