UPDATE: An Introduction to International Fisheries Law Research
By Abdullah Al Arif
Abdullah Al Arif is an internationally experienced researcher specializing in ocean governance and the law of the sea. He completed a PhD in Law at Macquarie University (NSW, Australia) in 2019. Dr Arif is currently pursuing a postdoctoral research fellowship at Yokohama City University, Japan, funded by the Japan Society for the Promotion of Science (JSPS). He is the author of the monograph Sustainable Fisheries Management and International Law: Marine Fisheries in Bangladesh and the Bay of Bengal (Routledge, 2022).
Published November/December 2022
Table of Contents
- 1. Introduction
- 2. International Instruments on Fisheries Regulation
- 3. Relevant International Environmental Law Instruments
- 4. International Organizations on Fisheries Regulation, Management, Research and Development
- 5. Regional Fisheries Management Instruments
- 6. Regional Fisheries Management Organizations (RFMOs)
- 7. Customary International Law Relating to Fisheries Regulation
- 8. Decisions of International Dispute Settlement Bodies on Fisheries Related Cases
- 9. Some Key Concepts of Fisheries Regulation
- 10. Useful Resources
International fisheries law, a subfield of the law of the sea, is an emerging area of public international law that seeks to regulate fisheries management in areas within and beyond national jurisdictions. This body of law touches upon some other areas of international law, for example, international environmental law, international marine environmental law, natural resources law, sustainable development law, international trade law, etc. International fisheries law is also interdisciplinary as it often draws on other disciplines, such as, fisheries and marine science, oceanography, marine resource management, fisheries economics, fisheries statistics etc. Although international fisheries law is primarily based on international and regional treaties and customs, other elements, such as, decisions of international courts and tribunals on fisheries matters, practices of States and regional fisheries management organizations (RFMOs), and scholarly writings and publications by leading experts have also contributed to shaping up this evolving area of international law.
2. International Instruments on Fisheries Regulation
International fisheries law has emerged as a body of law based on several international instruments on fisheries regulation, both binding and non-binding. Legally binding instruments are agreements concluded by States or international organizations in writing with an intent to create legal rights and duties. These instruments are called ‘hard law’ because the contracting parties are legally bound by the provisions of these instruments once they enter into force. On the other hand, non-legally binding instruments provide policy guidance for States and are often referred to as ‘soft law,’ as the parties to these instruments are not legally obliged to abide by the provisions of these instruments. The United Nations has been playing an instrumental role in facilitating the adoption of several international instruments on fisheries management and conservation either directly or through its specialized agency, Food and Agricultural Organisation (FAO). Apart from its role in developing international fisheries policy, FAO provides advisory services to governments in the formulation or revision of their national fisheries legislation and technical assistance on aquaculture related issues. It also provides support services to regional and sub-regional fisheries organizations to strengthen their legal frameworks.
Following is a brief account of the international instruments on fisheries regulation.
International Convention for the Regulation of Whaling (ICRW), 1946
After being concerned about the over-fishing of some species of whales, international community felt the need to establish a system of international regulation to ensure effective conservation of whales and an orderly development of the whaling industry. In this backdrop, the International Convention for the Regulation of Whaling (ICRW) was signed in 1946, and the International Whaling Commission was established under this Convention. The Schedule to the Convention outlines the measures that are necessary to provide protection of certain species of whales, designate specified areas as whale sanctuaries, set restrictions on the numbers and size of whales that may be taken, prescribe open and closed seasons and areas for whaling, and so on. Presently, only two of the total 88 member States of the International Whaling Commission continue to engage in commercial whaling, namely, Norway and Iceland. Japan withdrew from IWC in 2019 to avoid the moratorium on killing whales established by the Commission and resumed commercial whaling the same year.
Geneva Conventions on the Law of the Sea, 1958
The first United Nations Conference on the Law of the Sea, held in Geneva in 1958, adopted four conventions — the Convention on the Territorial Sea and the Contiguous Zone (CTS), the Convention on the High Seas (CHS), the Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR); the Convention on the Continental Shelf (CCS). While the Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR) dedicatedly deals with conservation and management of marine fisheries, other conventions also have some provisions pertaining to fisheries regulation.
Ramsar Convention, 1971
The Convention on Wetlands of International Importance specially as Waterfowl Habitat, which was adopted in 1971 at the Iranian city of Ramsar, is commonly known as the Ramsar Convention. Wetlands are home to many important marine species, including fish, and the Convention aims at preserving them by promoting the conservation of wetlands and their flora and fauna. In doing so, the Convention requires its state parties to make a list of wetlands within their jurisdictions and formulate and implement planning to conserve the wetlands included in the list. Resolution IX.4 adopted at the 9th Meeting of the Conference of the Parties to the Convention held in Kampala, Uganda in 2005 dealt specifically with inland, coastal and near-shore marine wetlands and the conservation of fisheries resources found therein.
The Convention on the Conservation of Antarctic Marine Living Resources (CALMR Convention), 1980
The CAMLR Convention is a multilateral treaty adopted at the Conference on the Conservation of Antarctic Marine Living Resources at Canberra, Australia, in 1980. It was adopted to address the potential threats posed by unregulated krill catches in the Southern Ocean to Antarctic marine ecosystems particularly for seabirds, seals, whales, and fish that depend on krill for food.
Law of the Sea Convention, 1982
The UN Convention on the Law of the Sea (UNCLOS), often referred to as the Constitution for the Oceans, was adopted in 1982 after nine years of negotiations at the Third United Nations Conference on the Law of the Sea. This widely accepted treaty is a framework convention and deals with almost all aspects of ocean governance, for example, limits of the territorial sea, navigational rights, the exclusive economic zone, legal status of resources on the seabed beyond the limits of national jurisdiction, conservation, and management of living marine resources, protection of the marine environment, marine scientific research and settlement of disputes between States and much else besides.
Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993
The Compliance Agreement was adopted within the framework of the Food and Agriculture Organization (FAO) to promote compliance with international conservation and management measures by fishing vessels on the high seas. The Agreement seeks to prevent the practice of reflagging of vessels, which is usually done to avoid compliance with national or international fisheries conservation and management measures. It obliges the State parties to take all necessary measures to ensure that fishing vessels entitled to fly their flag do not engage in any activity that undermines the effectiveness of international conservation and management measures.
The UN Fish Stocks Agreement, 1995
The UN Fish Stocks Agreement was adopted in 1995 by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks with a view to implementing the Provisions of the Law of the Sea Convention, 1982 relating to conservation and management of straddling and highly migratory fish stocks. This Agreement establishes a management regime based on the precautionary principle and the best available scientific information. The Agreement entered into force in 2001.
FAO Code of Conduct for Responsible Fisheries, 1995
The Code of Conduct for Responsible Fisheries was initiated in 1991 by the FAO Committee on Fisheries and it was unanimously adopted by over 170 member Governments of the FAO Conference in 1995. The Code consists of a collection of principles, goals and elements pertaining to conservation, management, and development of living aquatic resources, with due respect for the ecosystem and biodiversity. Although the Code represents a global consensus or agreement on a wide range of fisheries and aquaculture issues, the application of the Code is voluntary rather than mandatory. However, some of its provisions have already been given legal effect through The Law of the Sea Convention, 1982.
Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem, 2001
The Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem, which was adopted in 2001 at the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, stressed the incorporation of ecosystem considerations in fisheries management to achieve long-term food security. The Declaration recognizes the complex inter-relationship between fisheries and other components of the marine ecosystems and highlighted that inclusion of ecosystem considerations in fisheries management would ensure effective conservation and sustainable use of the ecosystem and its resources.
Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 2009
The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, which was adopted by the FAO Conference in 2009, seeks to address illegal, unreported and unregulated (IUU) fishing through the implementation of stringent port State measures. State parties to the Agreement, in their capacity as post sates, will prevent fish caught by foreign fishing vessels engaged in IUU fishing activities from being landed and entering international markets. The Agreement provides for minimum port States measures and is binding on State parties.
FAO – International Plan of Actions (IPOA)
FAO introduced four International Plans of Action (IPOAs) to address issues raised by its Code of Conduct. Just like the Code of Conduct for Responsible Fisheries, these are non-legally binding instruments that incorporate measures to address the four pressing issues, namely, incidental by catch of seabirds in longline fisheries, conservation and managements of sharks, management of fishing capacity, combating IUU fishing. Each of these four issues has been addressed by four different IPOAs. They are:
Through adoption of each IPOA, states can ensure that the measures they take are reinforced by the other states. Implementation of each IPOA is voluntary and left to the states for adoption of specific measures. These IPOAs address issues arising both in exclusive economic zones (EEZs) and on the high seas.
International Treaty on the conservation and sustainable use of Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ), (under negotiation)
The General Assembly of the United Nations convened an intergovernmental conference on an international legally binding instrument under the 1982 UN Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, also known as the high seas treaty, in 2018. Delegates representing member States of the UN engaged in negotiation to agree on a final text of the instrument at the fifth and supposedly final session of the conference in New York during 15-26 August 2022. Although agreement has been reached on many provisions of the treaty, the session was suspended due to disagreements on some fundamental issues. It is expected that the conference will resume its session shortly to conclude this important treaty.
3. Relevant International Environmental Law Instruments
International environmental law suggests that conservation of fisheries and other marine resources touches upon the preservation of broad ecosystems and their fragile nature. As the protection of the marine environment depends on effective management of fisheries and other resources, most international environmental law instruments, both binding and non-binding, refer to, either directly or indirectly, regulation and management of marine fisheries.
The following is a brief account of international environmental law instruments having relevance to fisheries regulation.
Declaration of the UN Conference on the Human Environment (the Stockholm Declaration), 1972
The Declaration of the UN Conference on the Human Environment (the Stockholm Declaration), 1972 sets out general responsibility to protect and improve the environment for present and future generations. The Declaration also highlights the duty to safeguard the natural resources and natural ecosystems through carefully designed management plans and maintain, restore, and improve the capacity of the earth to produce vital renewable resources.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement that seeks to ensure that international trade in specimens of wild animals and plants does not threaten their survival. Several marine fish species and marine mammals including some species of sharks and whales are included in the CITES-listed species.
Convention on the Conservation of Migratory Species (CMS), 1979
The Convention on the Conservation of Migratory Species (CMS), 1979 is an intergovernmental treaty concluded under the aegis of the United Nations Environment Programme that aims to conserve terrestrial, aquatic, and avian migratory species throughout their range. This Convention is concerned with the conservation of wildlife and habitats on a global scale including marine species.
Rio Declaration on Environment and Development, 1992
The Rio Declaration on Environment and Development, 1992 reiterates the principles of the Stockholm Declaration pertaining to safeguarding the environment and the ecosystems. The Declaration includes the application of the precautionary principle that has been incorporated in several subsequent international and regional fisheries management instruments. The application of the precautionary principle requires that a lack of scientific knowledge must not be used as an excuse not to take management decisions. Environmental impact assessment (EIA) is also presented as a tool for environmental management in this Declaration. Moreover, Agenda 21, which was adopted at the UN Conference on Environment and Development held in Rio de Janeiro, Brazil in 1992, is a non-binding, plan of action of the United Nations regarding sustainable development. Chapter 17 of Agenda 21 deals with the protection of the oceans and coastal areas including the protection, rational use and development of their living resources including fisheries.
Convention on the Conservation of Biological Diversity (CBD), 1992
The primary objectives of the Convention on the Conservation of Biological Diversity (CBD), 1992 are conservation of biological diversity, sustainable use of the components of biological diversity and fair and equitable sharing of the benefits arising out of the utilization of genetic resources. Protection of marine environment and conservation of marine living resources are at the heart of this Convention.
Millennium Development Goals (MDGs), 2000
The Millennium Development Goals, eight non-binding goals pertaining to poverty, education, gender equality, and environmental sustainability, were formulated by world leaders at the United Nations Millennium Summit in 2000 to be achieved by 2015. Goal 7 of these eight goals deals with ensuring environmental sustainability with four more specific targets to be achieved. Two of the four targets set under the Goal 7 — integrating the principles of sustainable development into country policies and programmes and reducing biodiversity loss — are relevant to marine resource management.
Sustainable Development Goals (SDGs), 2015
Building on the success of the Millennium Development Goals (MDGs) and to aim to go further, 17 Sustainable Development Goals (SDGs) were adopted by the world leaders in 2015 to be achieved by 2030. Goal 14 of the recently adopted SDGs goals is dedicated to conservation and sustainable use of the oceans and proper management of the living and non-living resources present in the oceans. Like the millennium development goals, the sustainable development goals are also not legally binding, and governments are expected to take ownership and establish national frameworks for the achievement of these goals.
4. International Organizations on Fisheries Regulation, Management, Research and Development
- Fisheries and Aquaculture Department, FAO: FAO Fisheries and Aquaculture Department publishes publicly accessible statistical data and information on the status of fisheries and aquaculture around the globe. It also publishes articles, technical papers, guidelines, and plans of actions to help policymakers frame better policies.
- Greenpeace: It works in various areas of fisheries management, inter alia, ocean sanctuaries, conservation of tuna and whales, regulation of bottom trawling, etc., and publishes relevant publications.
- International Institute for Environment and Development: IIED carries out projects to address threats faced by marine fisheries, and the people who depend on them, and help to shape policy options to achieve sustainable development. It also publishes reports and articles on their projects.
- IUCN: Fisheries and Aquaculture falls under the Oceans and Coasts program, which is one of the several broad themes that IUCN works on. Apart from its wide range of publications available online, it also hosts several libraries.
- The Division for Ocean Affairs and the Law of the Sea (DOALOS): DOALOS offers advice and assistance on the implementation of the United Nations Convention on the Law of the Sea and conducts monitoring and research activities and maintain a comprehensive information system.
- WorldFish: WorldFish is an international research organization that seeks to enhance the potential of fisheries and aquaculture to strengthen livelihoods and improve food and nutrition security. It offers a wide range of resources and publications.
- The International Council for the Exploration of the Sea (ICES): ICES seeks to increase the scientific knowledge of the marine environment and its living resources and to use this knowledge to ensure that best available science is accessible for decision-makers to make informed choices on the sustainable use of the marine environment and ecosystems. It publishes a wide range of publications, and hosts a library.
5. Regional Fisheries Management Instruments
Most fish live and die in a region while others migrate across regions during their lifetime. So, the regulatory framework for fisheries management should consider the circumstances of each region including the nature and quantity of the marine living resources within its jurisdiction. Most international fisheries instruments reiterated the need for establishing regional and sub-regional arrangements for sustainable management of the fisheries resources of each region. Consequently, a wide range of regional fisheries management agreements has been adopted with a view to ensuring conservation and management of high seas fish stocks, shared fish stocks, straddling and highly migratory fish stocks. These instruments generally contain provisions on total allowable catch (TAC), catch allocation among members, conservation principles, management measures, etc.
Below is a list of regional and subregional fisheries management instruments:
- Agreement concerning Certain Aspects of Cooperation in the Area of Fisheries
- Convention for the Conservation of Southern Bluefin Tuna
- Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific
- Convention on Future Multilateral Co-Operation in the North-West Atlantic Fisheries
- Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries
- Convention on Sub-regional Cooperation in the Exercise of Maritime Hot Pursuit
- Convention on the Conservation and Management of Fishery Resources in the Southeast Atlantic Ocean
- Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
- Convention on the Conservation and Management of Pollock Resources Central Bering Sea
- Federated States of Micronesia Arrangement for Regional Fisheries Access
- International Convention for the Conservation of Atlantic Tunas
- Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest
- Palau Arrangement for the Management of the Western Pacific Purse Seine Fishery
- South Indian Ocean Fisheries Agreement
- Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America
6. Regional Fisheries Management Organizations (RFMOs)
One of the responses to international concerns for conservation of high seas marine fishery resources has been regional action, often through States cooperating to establish regional organizations. These organizations are generally referred to as Regional Fisheries Management Organizations (RFMOs). The functions of RFMO include, among others, collection, analysis and dissemination of fisheries data and information, and coordination of fisheries management through joint schemes and mechanisms. These RFMOs also serve as technical and policy fora, and take decisions relating to the conservation, management, development, and responsible use of the fisheries resources. The mandates of RFMOs vary. Some RFMOs have an advisory mandate, and provide advice, decisions or coordinating mechanisms that are not binding on their members, others have a management mandate, and management measures adopted by them are binding on their members.
Below is a list of RFMOs operating in different regions in the world:
- Asia-Pacific Fishery Commission (APFIC)
- Bay of Bengal Programme Inter-Governmental Organization (BOBP-IGO)
- Central Asian and Caucasus Regional Fisheries and Aquaculture Commission (CACFish)
- Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR)
- Commission for the Conservation of Southern Bluefin Tuna (CCSBT)
- Fishery Committee for the Eastern Central Atlantic (CECAF)
- Committee for Inland Fisheries and Aquaculture of Africa (CIFAA)
- Commission for Inland Fisheries and Aquaculture of Latin America and the Caribbean (COPESCAALC)
- Regional Commission of Fisheries of Gulf of Guinea (COREP)
- Caribbean Regional Fisheries Mechanism (CRFM)
- European Inland Fisheries and Aquaculture Advisory Commission (EIFAAC)
- Fishery Committee of the West Central Gulf of Guinea (FCWC)
- Pacific Islands Forum Fisheries Agency (FFA)
- General Fisheries Commission for the Mediterranean (GFCM)
- Inter-American Tropical Tuna Commission (IATTC)
- International Commission for the Conservation of Atlantic Tunas (ICCAT)
- Indian Ocean Tuna Commission (IOTC)
- International Pacific Halibut Commission (IPHC)
- Lake Victoria Fisheries Organization (LVFO)
- Mekong River Commission (MRC)
- Northwest Atlantic Fisheries Organization (NAFO)
- North Atlantic Marine Mammal Commission (NAMMCO)
- North Atlantic Salmon Conservation Organization (NASCO)
- Northeast Atlantic Fisheries Commission (NEAFC)
- Regional Commission for Fisheries (RECOFI)
- Southeast Asian Fisheries Development Center (SEAFDEC)
- Southeast Atlantic Fisheries Organization (SEAFO)
- South Indian Ocean Fisheries Agreement (SIOFA)
- South Pacific Regional Fisheries Management Organisation (SPRFMO)
- Sub-regional Fisheries Commission (SRFC)
7. Customary International Law Relating to Fisheries Regulation
Customary international law is a State practice accepted as law. A State practice needs to fulfil two requirements to qualify as a customary international law: existence of a State practice and opinio juris (existence of a belief that such practice is legal requirement). In the realm of fisheries regulation, several State practices are considered as customary international law. These rules of customary international law are often reflected in the provisions of international treaties and decisions of international dispute settlement bodies. Moreover, several principles of customary international law pertaining to fisheries regulation have been codified by UNCLOS. All Sates are bound by customary international laws irrespective of their obligation under any treaty.
Below are some principles of customary international law in the area of fisheries regulation:
- Obligation to ensure conservation of the living resources when exercising the right of freedom of fishing on the high seas;
- Establishing an exclusive economic zone;
- Exercising effective control over flagged vessels;
- Right to ‘hot pursuit’;
- Port States’ jurisdiction over vessels in their ports.
8. Decisions of International Dispute Settlement Bodies on Fisheries Related Cases
International dispute settlement bodies including International Court of Justice (ICJ) and International Tribunal for the Law of the Sea (ITLOS) have been playing an instrumental role in the development of international fisheries law through their decisions delivered in fisheries related matters. These decisions offer detailed analysis of the relevant treaty provisions, existence of any custom, presence of any special requirement or circumstance between the disputing parties, etc. Below is a brief description of some seminal decisions delivered by international dispute settlement bodies on matters involving fisheries jurisdiction, maritime delimitation, conservation, and management of fish stocks, etc.
Anglo-Norwegian Fisheries Case (The UK v Norway), 1951
Norway enacted a decree in 1935 claiming as the baseline of Norwegian territorial waters the general line of the Skjaergaard, and consequently, certain fishing grounds what was formerly parts of the high seas became Norwegian fishing zones. As a response to this, the United Kingdom requested the International Court of Justice to determine the validity of the lines of delimitation of the Norwegian fisheries zone as set forth in the Decree in 1935 under international law. The Court concluded that neither the method of drawing nor the actual baselines drawn by Norway was contrary to international law. In reaching this decision, the Court considered the peculiar geography of the Norwegian coast and the economic interests peculiar to the region. Although this case is referred to as Anglo-Norwegian Fisheries Case, it did not deal with fisheries; rather, it dealt with maritime boundary delimitation.
ICJ Fisheries Jurisdiction Cases (United Kingdom v. Iceland, 1974; Federal Republic of Germany v. Iceland, 1974; Spain v. Canada, 1998)
Two cases, viz., United Kingdom v. Iceland and Federal Republic of Germany v. Iceland were brought before the International Court of Justice (ICJ) by the United Kingdom and the Federal Republic of Germany following an extension by Iceland of its exclusive fisheries jurisdiction from a distance of 12 to a distance of 50 nautical miles and the prohibition of all foreign fishing activities therein. The Court found that the Icelandic regulations constituting a unilateral extension of exclusive fishing rights to a limit of 50 nautical miles were not opposable to either the United Kingdom or the Federal Republic of Germany. The court also found that Iceland was not entitled unilaterally to exclude the British and German fishing vessels from the disputed areas. Finally, court ruled that the parties were under a mutual obligation to undertake negotiations for an equitable solution of the disputes relating to the apportionment of the fishery resources, considering the preferential rights of Iceland, the established rights of the United Kingdom and of the Federal Republic of Germany as well as any interest of other States.
In another case between Spain and Canada (Spain v. Canada), a Spanish fishing vessel was seized and its master arrested on charges of violations of the Coastal Fisheries Protection Act by the Canadian authority. Spain brought the case before ICJ alleging that the Canadian authority had violated various principles and norms of international law. The Court found that the dispute between the Parties was pertaining to the enforcement of conservation and management measures taken by Canada with respect to vessels fishing in the Northwest Atlantic Fisheries Organization (NAFO) regulatory area falls within the terms of one of the reservations in the Canadian declaration. The Court, therefore, found that it had no jurisdiction to adjudicate in the case.
Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), 2000
In the Southern Bluefin Tuna case, establishment of an Arbitral Tribunal under Annex VII of the Law of the Sea Convention was requested by Australia and New Zealand concerning the conservation and management of Southern Bluefin Tuna. Pending the constitution of this tribunal, Australia and New Zealand requested the International Tribunal for the Law of the Sea (ITLOS) to prescribe provisional measures including the immediate cessation of Japan’s Experimental Fishing Programme. The Tribunal, upon hearing the parties, prescribed four provisional measures. However, the Arbitral Tribunal finally concluded that it lacked jurisdiction to rule on the merits of the dispute and it also revoked the provisional measures prescribed by ITLOS.
Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), 2014
In the case of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), the International Court of Justice (ICJ) found Japan in violation of the provisions regarding catch limits set out in the Schedule of the International Convention on the Regulation of Whaling (ICRW) and ordered Japan to halt its whaling program in the Southern Ocean. The Court found that the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA) lacked scientific merit.
Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), 2015
The International Tribunal for the Law of the Sea (ITLOS) delivered its first advisory opinion in Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission. Sub-Regional Fisheries Commission (SRFC), a regional fisheries management organization consisting of seven West African countries, viz., Cabo Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal, and Sierra Leone, sought the opinion of ITLOS after being troubled with illegal, unreported, and unregulated (IUU) fishing in their exclusive economic zones (EEZs). The request included four specific questions regarding the obligations of the flag State in cases where IUU fishing activities are conducted within the EEZ of a third-party State and the extent of liability of the flag State for IUU fishing activities conducted by vessels sailing under its flag. In its advisory opinion, ITLOS reiterated the provisions of Law of the Sea Convention regarding conservation and management of marine living resources specifically in Articles 61 and 62, emphasizing on the obligations of coastal states and flag states.
9. Some Key Concepts of Fisheries Regulation
International fisheries law comprises several key issues and concepts. While some of these concepts are related to the fundamental principles of fisheries management, others fall under the broad area of the law of the sea. As a framework convention on the law of the sea, UNCLOS deals with a wide range of such topics and is the general starting point for researchers of international fisheries law. Below is a brief account of some key concepts of international fisheries law:
Climate Change and Fisheries Regulation: The marine fisheries sector is extremely susceptible to climate change, which alters the availability of fish and fish products, resulting in significant economic consequences for many nations. If climate change continues unabated, by 2050, the maximum catch potential will decrease up to 40% in some tropical regions. Recent research shows that climate change causes or exacerbates ocean warming, acidification and deoxygenation, which affect marine organisms and impact fisheries. Climate-induced ocean warming is forcing several fish species to migrate to the open ocean away from their original habitat and migration range. In addition, climate change affects physiology and behavior and alters fish stocks’ growth, reproductive capacity and mortality. The impact of climate change on the biological and environmental features of fish species also affects their management frameworks and cause serious problems for governments and fisheries management organizations.
Ecosystem-Based Fisheries Management (EBFM)/Ecosystem Approach to Fisheries (EAF): The concept of ecosystem-based fisheries management (EBFM) or ecosystem approach to fisheries (EAF) has evolved with a view to minimizing the damaging impacts of fishing and other human activities on marine ecosystems. After the depletion of several commercial fish stocks in various regions in the world in the late 1980s to early 1990s, there was a growing realization that the traditional single-species management approach to fisheries resources was failing to conserve and protect the world’s fish stocks. This called for an ecosystem-based management approach that takes into consideration the relationships amongst diverse species as well as the interactions and interdependence among those species and their environment including human. Although the terms ‘ecosystem-based fisheries management’ or ‘ecosystem approach to fisheries’ are relatively new, the concepts and features of EBFM have already been incorporated in a number of international instruments, for example, the 1982 Law of the Sea Convention, the 1992 Rio Declaration on Environment and Development and its Agenda 21, the 1992 Convention on Biological Diversity (CBD), the 1995 United Nations Fish Stocks Agreement, the 1995 FAO Code of Conduct for Responsible Fisheries, etc.
IUU Fishing: Illegal, Unreported and Unregulated (IUU) fishing means illegal fishing activities, which includes fishing activities that undermine efforts to conserve and manage fish stocks in capture fisheries. The FAO provides a detailed definition of IUU fishing.
Marine Mammals: Marine mammals are not fish although they spend their entire lives in marine waters, for example, whales, dolphins, seals, etc. These marine animals are indispensable parts of marine ecosystems and play a significant role in maintaining marine biodiversity. Fisheries regulations, therefore, often include provisions on protection and conservation of marine mammals. See more information on marine mammals.
Marine Pollution: According to Article 1(4) of UNCLOS, “Pollution of marine environment means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.”
Marine Protected Areas and Marine Reserves: Marine Protected Areas (MPAs) are a marine resource management tool that can be used to conserve marine living resources, for example, to rebuild stocks, maintain biological productivity, and support sustainable marine fisheries. On the other hand, marine reserves are areas of the marine environment that has been reserved by laws or regulations with a view to providing long-term protection for all or any specific marine living resource. See the Pacific Fishery Management Council’s fact sheet on MPAs and marine reserves.
Maritime Boundary Delimitation: Maritime boundary delimitation means demarcation of maritime boundaries between neighboring States, either adjacent or opposite, for the purpose of exercising jurisdiction over the maritime area including fishing. Under the UNCLOS regime, States now require their maritime boundaries to be delimited if they have territory within 400 nm of each other. The location and geographic conditions of a State may have a significant effect in determining the State's maritime boundary. Maritime boundary delimitation has given rise to several disputes between States, and determination of fisheries jurisdiction was one of the key issues involved in most of these kinds of litigations.
Maritime Zones: Fishing occurs in various areas of the sea and these areas are known as maritime zones. Coastal States enjoy varying jurisdiction, and their rights and obligations also vary in different maritime zones. The maritime zones recognized under international law are internal waters, the territorial sea, the contiguous zone, the exclusive economic zone (EEZ), the continental shelf, the high seas, and the Area. Some of these maritime zones have been established through treaties, for example, UNCLOS, others have their basis in customary international law. However, fisheries activities generally take place in internal waters, the territorial sea, the EEZ, and the high seas.
According to Article 8(1) of UNCLOS, internal waters of a State are the waters on the landward side of the baseline from which the breadth of the territorial sea is measured. According to Article 3 of UNCLOS, every State has the right to establish its territorial sea up to 12 nautical miles from its baselines. The sovereignty of a coastal State extends to the territorial sea. According to Article 33(2) of UNCLOS, the contiguous zone could extend up to 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Coastal States may exercise its jurisdiction over the contiguous zone with a view to preventing and punishing infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. According to Article 57 of UNCLOS, the exclusive economic zone is a 200 nautical miles zone from the baselines. Coastal States enjoy sovereign rights in this zone for exploring and exploiting, conserving and managing the living or non-living natural resources, and for the economic exploitation and exploration of the zone, such as, the production of energy from the water, currents and winds. According to Article 86 of UNCLOS, high seas are parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State. The high seas are open to all States, including coastal or land-locked, to enjoy several freedoms, for example, freedom of fishing, freedom of navigation; freedom of overflight, etc. However, these freedoms of the high seas are to be exercised under the conditions laid down by the Law of the Sea Convention and by other rules of international law.
Maximum Sustainable Yield (MSY): Maximum sustainable yield (MSY) is a well-recognized concept of fisheries management. MSY is defined as the maximum level at which a natural resource can be routinely exploited without long-term depletion. Therefore, if the actual catch is less than the MSY, the fishery is said to be underexploited, and if the catch is more than the MSY, the fishery is overexploited, and management measures are necessary. The Law of the Sea Convention incorporated the MSY concept with several qualifications, for example, relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, fishing patterns, the interdependence of stocks and any generally recommended international minimum standards. Although the MSY concept has been widely adopted in international and domestic fisheries management instruments since its inception, it has been seriously criticized by the fisheries scientists, economists, lawyers, and environmentalists on various grounds. Though some commentators endorse the application of the concept of MSY as an objective of fisheries management, others reject it.
Ocean Dumping: According to the OECD Glossary of Environment Statistical Terms, “Ocean dumping is the deliberate disposal of hazardous wastes at sea from vessels, aircraft, platforms or other human-made structures. It includes ocean incineration and disposal into the seabed and sub-seabed.” Ocean dumping is a major source of marine pollution that has significant adverse impact on marine environment, especially on marine living resources including fish.
Precautionary Principle/Precautionary Approach: When the maximum sustainable yield (MSY) approach to fisheries management was failing to effectively manage international fisheries, international community moved to sustainability approach and the precautionary principle was introduced into fisheries management. The precautionary principle requires the incorporation of caution in the decision-making process to prevent human activities from adversely affecting marine species and marine environment, even if there is no conclusive scientific proof linking those activities to the damage. The concept of precaution received wide acceptance in international legal sphere through its incorporation in the Rio Declaration on Environment and Development adopted in 1992, and Principle 15 of Rio Declaration deals with implementation of the precautionary principle. Several international fisheries instruments including multilateral and regional fisheries treaties have incorporated this principle with a view to ensuring proper conservation of marine fisheries and marine biodiversity. The 1995 UN Fish Stocks Agreement and the 1995 FAO Code of Conduct for Responsible Fisheries have explicitly incorporated the precautionary principle.
Seabed Mining and Deep-Seabed Mining: Seabed mining (SBM) is the process of extracting submerged minerals and deposits from the sea floor. This emerging industry gained international attention in the 1960s and 70s when deposits of minerals like copper, nickel and manganese were found under the ocean. Currently, deep-seabed mining (DSM), which is the extension of near shore mining activities in the deep sea, is being discussed and debated. Although the scientific knowledge around the environmental impact of SBM and DSM is still in infancy, there are arguments both for and against these activities. There has been grave concern about the potential impact of seabed and deep-sea mining on the marine ecosystems, especially on marine living resources and many issues relating to these activities are still unresolved. Under the Law of the Sea Convention, coastal States have exclusive right to authorize and regulate drilling on the continental shelf for all purposes, and deep-seabed mining is regulated by International Seabed Authority.
Sustainable Fisheries: In line with the concept of sustainable development, the general understanding of ‘sustainable fishery’ is fishing to meet the needs of today’s generation without compromising the ability of future generations to harvest fish for their needs. A more technical definition of the term would be to fish at a level and in a manner that it is reasonably believed can be sustained indefinitely, assuming proper responses to changes in the ecosystem. Sustainable fishery requires the conservation of fish stocks and the preservation of the marine biodiversity but still allows the fishing industry to remain economically viable. See the Ocean Conservancy’s page on sustainable fisheries for more information.
10. Useful Resources
- Carlos Espósito, James Kraska, Harry N. Scheiber, Moon-Sang Kwon (Eds), Ocean Law and Policy: 20 Years Under UNCLOS (Leiden Boston: Brill Nijhoff, 2017)
- Charlotte de Fontaubert and Indrani Lutchman, with David Dowries and Carolyn Deere, Achieving Sustainable Fisheries: Implementing the New International Legal Regime (IUCN, Gland, Switzerland and Cambridge 2003).
- Daniela Diz Pereira Pinto, Fisheries Management in Areas Beyond National Jurisdiction: The Impact of Ecosystem Based Law-Making (Martinus Nijhoff Publishers, 2012) vol. 13.
- Ellen Hey (Ed), Developments in International Fisheries Law (Kluwer Law International, Netherlands, 1999).
- Erika J. Techera and Natalie Klein (Eds), Sharks: Conservation, Governance and Management (Abingdon, Oxon, New York: Earthscan from Routledge, 2014)
- Francisco Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge University Press, 1999).
- Gerd Winter (Ed), Towards Sustainable Fisheries Law. A Comparative Analysis (IUCN, Gland, Switzerland. 2009).
- José Antonio de Yturriaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea (Martinus Nijhoff, 1997).
- Mary Ann Palma, Martin Tsamenyi, William Edeson, Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Leiden Boston: Martinus Nijhoff Publishers, 2010).
- Nienke van der Burgt, Contribution of International Fisheries Law to Human Development (Martinus Nijhoff Publishers, 2012).
- Ocean Studies Board and National Research Council, Sustaining marine fisheries (National Academies Press, Washington D.C. 1999).
- Richard Caddell and Erik J. Molenaar, (eds) Strengthening International Fisheries Law in an Era of Changing Oceans (Hart Publishing, 2019).
- Stuart B. Kaye, International Fisheries Management (Kluwer Law International, 2001).
- William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clarendon Press, 1994).
- Yoshinobu Takei, Filling Regulatory Gaps in High Seas Fisheries: Discrete High Seas Fish Stocks, Deep-Sea Fisheries and Vulnerable Marine Ecosystems (Leiden: Brill, 2013).
- Asia Pacific Journal of Ocean Law and Policy (Brill)
- Fish and Fisheries (John Wiley & Sons)
- Fisheries Research (Elsevier)
- Frontiers in Marine Science (Frontiers Media S.A.)
- ICES Journal of Marine Science (Oxford University Press)
- International Journal of Marine and Coastal Law (Brill)
- Journal of Territorial and Maritime Studies (McFarland)
- Marine and Coastal Fisheries (Taylor & Francis)
- Marine Policy (Elsevier)
- North American Journal of Fisheries Management (Taylor & Francis)
- Ocean and Coastal Management (Elsevier)
- Ocean Development and International Law (Taylor & Francis)
- Abdullah Al Arif, ‘Exploring the legal status and key features of ecosystem-based fisheries management in international fisheries law’ 2018 27 (3) Review of European, Comparative & International Environmental Law (RECIEL) 320.
- Alison Rieser, 'International fisheries law, overfishing and marine biodiversity' (1997) 9(2) Georgetown International Environmental Law Review 251.
- Andrew Serdy, ‘Postmodern international fisheries law, or are we all coastal states now’ (2011) 60 (2) International and Comparative Law Quarterly 387.
- Carmel Finley and Naomi Oreskes, ‘Maximum sustainable yield: a policy disguised as science’ (2013) 70 (2) ICES Journal of Marine Science 245.
- Erik Jaap Molenaar, 'Addressing regulatory gaps in high seas fisheries' (2005) 20(3) The International Journal of Marine and Coastal Law 533.
- Geir Ulfstein, '200-mile zones and fisheries management' (1983) 52 Nordisk Tidsskrift Int'l Ret 3.
- Harry N. Scheiber, ‘Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation and Frustration’ (2001) 20 Virginia Journal of Natural Resources Law 119.
- Jon G Sutinen and Peder Andersen, 'The economics of fisheries law enforcement' (1985) 61(4) Land economics 387.
- McIntyre, Owen and Thomas Mosedale, 'Precautionary Principle as a Norm of Customary International Law, (1997) 9(2) Journal of Environmental Law 221
- Peter A Larkin, 'An epitaph for the concept of maximum sustained yield' (1977) 106(1) Transactions of the American fisheries society 1.
- Simon Marr, 'The southern bluefin tuna cases: The precautionary approach and conservation and management of fish resources' (2000) 11(4) European Journal of International Law 815.
- Thomas Ebben, 'The implementation of the precautionary principle into international fishery law: a move towards "green" fisheries' (2011) 15 New Zealand Journal of Environmental Law 113.
- Centre for Maritime Research focuses on marine resources management including management and governance of marine fisheries.
- De Maribus is a blog on the law of the sea, provides up to date information on academic learning, teaching, research, and publishing opportunities relating to regulation and management of marine fisheries. It includes information on the latest call for papers, conferences, summer schools, journals, internship opportunities, etc.
- FAOLEX offers a comprehensive and up-to-date legislative and policy database of national laws, regulations and policies on food, agriculture and natural resources management including fisheries.
- Global Fishing Watch (GFW) provides an open-access picture of global fishing activity using advanced satellite technology and machine learning. GFW’s aim is to ensure a healthy, productive and resilient ocean through increased transparency of human activities at sea.
- Marine Stewardship Council is an international non-profit organization addressing the problem of unsustainable fishing, and safeguarding seafood supplies for the future.
- Sustainable Fisheries Partnership (SFP) works to rebuild depleted fish stocks and reduce the environmental and social impacts of fishing and fish farming through engaging fishery stakeholders and seafood businesses.
- World Ocean Review seeks to raise public awareness of the interrelationships in marine science and thereby contribute to a more effective protection of the seas through a series of publications.
- World Wildlife Fund focuses on sustainable fisheries and conservation of ocean habitats through actively working towards halting the decline of marine environments and regenerating target ecosystems and marine resources.
 Baird, R. (2004). Illegal, unreported, and unregulated fishing: an analysis of the legal, economic, and historical factors relevant to its development and persistence. Melb. J. Int'l L., 5, 1-36.
 Roach, J. (2014). Today's Customary International Law of the Sea. Ocean Development & International Law, 45(3), 239-259.
 Borg, S. (2012). The Influence of International Case Law on Aspects of International Law Relating to the Conservation of Living Marine Resources beyond National Jurisdiction. Yearbook of International Environmental Law, 23(1), 44-79, page 53.
 Ibid., 49.
 Supra note 1, page 16.
 Ibid., page 26.
 Ibid., page 33.
 Barange, M. et al. (2018) Impacts of climate change on fisheries and aquaculture: synthesis of current knowledge, adaptation, and mitigation options,’ (FAO Fisheries and Aquaculture Technical Paper No. 627.
 Lam, V.W.Y. et al. (2020). Climate change, tropical fisheries, and prospects for sustainable development. Nature Reviews Earth & Environment, 1 (9), 440.
 Talukder, B. et al. (2022). Climate change-accelerated ocean biodiversity loss & associated planetary health impacts. The Journal of Climate Change and Health 100114; Cheung, W.W.L. and T.L. Frölicher (2020). Marine heatwaves exacerbate climate change impacts for fisheries in the northeast Pacific. Scientific reports, 10(1), 1.
 Bell, J.D. et al. (2021) Pathways to sustaining tuna-dependent Pacific Island economies during climate change. Nature Sustainability, 4, 900-910.
 Brander, K. (2010). Impacts of climate change on fisheries. Journal of Marine Systems, 79(3-4), 390.