Fisheries Law

UNITED NATIONS FISHING AGREEMENT   IN FORCE 11 DECEMBER 2001

AN INCREMENTAL STEP TOWARDS ENFORCEMENT ON THE HIGH SEAS

by:   Brad M. Caldwell,

Barrister & Solicitor

(March 2002)

Many Canadians 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. 

Although the 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. 

Although 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:

[M]anagement 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.

The diplomatic 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.

The second 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:

UNFA 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. 

Although 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. 

With respect 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).