Papers and Articles
UNITED NATIONS FISHING AGREEMENT IN FORCE 11 DECEMBER 2001
AN INCREMENTAL STEP TOWARDS ENFORCEMENT ON THE HIGH SEAS
by: Brad M. Caldwell,
Barrister & Solicitor
are proud of the fact that in 1977 Canada led the world in taking the daring
step of unilaterally extending its fisheries jurisdiction to 200 miles.
Fortunately for Canada at the time, its lead was quickly followed by the United
States and a number of other countries and the concept of a 200-mile exclusive
fisheries zone was incorporated
into the 1982 Law of the Sea Convention (“UNCLOS III”). In more recent
years, Canada has once again taken the lead by unilaterally declaring jurisdiction
over fishing vessels on the high seas that
target straddling fish stocks. A
well-known example of Canada exercising this new jurisdiction is the
much-publicized seizure of the Spanish fishing trawler “Estai” in 1995.
Although to date Canada has been able to resist Spain’s efforts to take
it to task for this seizure, it cannot be said that Canada’s more recent
initiative has had the same success as its 1977 unilateral action.
This article shall briefly review the conditions that led to Canada’s
“straddling stock” initiative and then describe the progress that Canada has
made to date in persuading other countries to follow its lead.
signing of the UNCLOS III treaty was of great benefit to Canada, the treaty is
not without its shortcomings. One
of these shortcomings relates to the fact that at the time the treaty was being
negotiated, about 95 per cent of the world’s commercial fisheries occurred
within 200 miles of a coastline. As a result, most of the provisions of the
treaty were directed towards the regulation of fisheries within a country’s
200-mile exclusive economic zone (“EEZ”). Unfortunately, this left a number
of gaps in the treaty with respect to highly migratory fish stocks (such as
tuna) and straddling fish stocks (such as cod and turbot).
These gaps have been particularly problematic for the east coast of
Canada, which has a shallow continental shelf (the Grand Banks) that extends
outside Canada’s 200-mile EEZ. This situation was further aggravated by the
fact that the world wide extension of 200-mile limits displaced a number of
fishing fleets and created more pressure to fish on the high seas.
Canada has tried to remedy these deficiencies through participation in various
regional fisheries organizations such as the Northwest Atlantic Fisheries
Organization (NAFO), it has only had limited success.
This was noted by the United
Nations Conference on Environment and Development (“UNCED”), which reported
in 1992 as follows:
of high seas fisheries, including the adoption, monitoring and enforcement of
effective conservation measures, is inadequate in many areas and some resources
are over utilized. There are
problems of unregulated fishing, overcapitalization, excessive fleet size,
vessel reflagging to escape controls, insufficiently selective gear, unreliable
databases and lack of sufficient cooperation between States.
Action by States whose nationals and vessels fish on the high seas, as
well as cooperation at the bilateral, sub regional, regional and global level,
is essential particularly for highly migratory species and straddling stocks.
responses to this report were twofold.
First, in 1993 a treaty aimed at the problem of re-flagged vessels was
negotiated under the auspices of the United Nations Food and Agriculture
Organization (“FAO Compliance Agreement”).
Although this agreement has been ratified by a number of countries
including Canada, the United States and the European Community, it currently has
only 20 of the 25 required ratifications required before it comes into force.
response was the convening of a United Nations conference in 1993 on straddling
and highly migratory fish stocks. This
was initiated by Canada at the International Earth Summit held in Rio de Janeiro
in June of 1992. Following a
number of working sessions, in 1995 the United Nations adopted an international
convention entitled “Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 December 1982 relating to
the Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks”. This agreement is commonly referred to as the United Nations
Fishing Agreement (UNFA).
Unlike the FAO
Compliance Agreement, this agreement has now been ratified by the required
number of countries (30), and came into force on December 11, 2001.
It is described, in somewhat glowing terms, by the Canadian Department of
Fisheries and Oceans as follows:
provides a framework for the conservation and management of straddling fish
stocks and highly migratory fish stocks in high seas areas regulated by regional
fisheries organizations. It
provides for the obligation to use the precautionary approach and the ecosystem
approach when managing these fisheries on the high seas.
It obligates States to minimize pollution, waste and discards of fish.
It reiterates obligations of States to control the fishing activities of
their vessels on the high seas. But
the most innovative aspect of the Agreement is the right of States party to the
Agreement to monitor and inspect vessels of the other state parties, to verify
compliance with internationally agreed fishing rules of regional fisheries
organizations such as the Northwest Atlantic Fisheries Organization (NAFO) and
the International Commission for the Conservation of Atlantic Tunas (ICCAT).
Finally, UNFA provides a compulsory and binding dispute settlement
mechanism to resolve conflicts in a peaceful manner.
From the west
coast perspective, UNFA has also served as a model for the creation of the
“Convention on the Conservation and Management of Highly Migratory Fish Stocks
in the Western and Central Pacific Ocean”.
This is considered a good agreement for Canada as it sets the standards
for the conduct of Canadian fisheries on the highs seas, such as the albacore
fishery, and adopts the precautionary type approach of UNFA.
and the Pacific convention have been heralded as successes by Canada, these
conventions are not without their critics.
For example, in a 1999 article written by William Moreira, Q.C., UNFA has
been criticized as simply restating UNCLOSS III’s appeals to coastal states
and fishing states to “seek to agree upon measures” for conservation and
protections of straddling fish stocks and highly migratory species.
He also feels that it is unlikely that the countries that provide flags
of convenience to high seas fishing vessels have either the desire or the
resources to regulate the fishing fleets operating under their flags.
The Department of Fisheries has also observed a lot of resistance from
distant water fishing nations to the implementation of UNFA and observed that a
number of the purported attempts at implementation by distance water fishing
nations have, in their view, been inconsistent with UNFA.
to the new Pacific convention based on UNFA, this has not yet been adopted into
law and may never be adopted, as it is not liked by either Japan or Korea who
are lobbying some of the Latin American countries to oppose it.
Although Canada does not currently have the same level of international support that it had when it extended its 200-mile jurisdiction in 1977, this does not seem to have dampened its resolve. It is noteworthy that it has not yet repealed the provisions of the Coastal Fisheries Protection Act granting it jurisdiction on the high seas and does not appear to be in any hurry to do so. Since the International Court of Justice declined jurisdiction to hear Spain’s complaint against Canada for seizing the “Estai”, it appears that Canada may be able to continue its straddling stock initiative for the time being.
Brad Caldwell is a Vancouver based
lawyer and former fisherman whose practise is primarily devoted to fisheries,
maritime and insurance matters. This
is a slightly revised version of a paper which was published in the March 2002
issue of Fisherman Life Magazine (Anchor Publishing:
Port Moody, British Columbia).