New Zealand Journal of Environmental Law
Last Updated: 12 February 2023
Bottom Trawling On The high seas – Protection Under International Law From Negative effects?
Kerry Tetzlaff *
Bottom trawling is one of the most destructive methods of modern-day fishing. It involves dragging large nets with huge steel doors and steel rollers over the deep-sea floor capturing everything in its path in order to catch a few fish. As a result, marine habitats are destroyed, fish stocks are overfished, and other species caught as bycatch risk extinction. This article examines two questions of major importance. The first question is whether international law provides adequate protection from the negative effects of bottom trawling on the high seas. The second question is whether, if international law does not provide adequate protection, other measures could be taken to provide the much-needed protection. To answer these two questions, this article examines the relevant provisions of the United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement, the Food and Agriculture Organisation’s Compliance Agreement, and the Convention on Biological Diversity. The article also investigates the concept and performance of regional fisheries management organisations. Finally, the article proposes a moratorium on bottom trawling in the high seas and an eventual convention banning all bottom-trawling activities in the high seas.
*PhD Candidate in Law, Faculty of Law, University of Cambridge; Barrister and Solicitor of the High Court of New Zealand. A Dissertation presented in partial fulfilment of the requirements of the University of Auckland for the Degree of Master of Laws (LLM).
Towing a heavy trawl net through a cold water coral reef is a bit like driving a bulldozer through a nature reserve.
David Griffith – General Secretary of the scientific advisory body International Council for the Exploration of the Sea (ICES)
Several thousand years of growth can be smashed to pieces in a few hours.
Dr J Murray Roberts – Scottish Association for Marine Science
Fisheries using dragged gears have completely cleared corals from the rocky tops of seamounts, and the fish that were once abundant among the corals have disappeared.
Dr Martin Willison – Dalhousie University The best way to protect these areas is a blanket ban on bottom trawling.
Dr Jason Hall-Spencer – Royal Society Research Fellow,
University of Glasgow
Bottom trawling is one of the most destructive methods of modern-day fishing. It results in devastation of marine environments in a very short period of time, including a loss of marine habitats, breeding grounds, fish stocks and biodiversity. The fisheries industry is now fishing in deep-sea areas of the high seas which were previously thought impractical to fish1 and destruction is being wrought on marine environments about which the international community has very little knowledge or understanding.2 Amazingly, the fish caught through bottom trawling on the high seas represent only approximately 0.2% of the total fish caught annually worldwide, and yet the destruction to the marine environment as a result of bottom trawling is immense, and grossly disproportionate to the limited economic benefit.3
This article examines two questions of major importance. The first question is whether international law provides adequate protection from the negative effects of bottom trawling on the high seas. The second question is whether, if
international law does not provide adequate protection, other measures could be taken to provide the much-needed protection.
In order to answer those two questions, this article does four things. Firstly, it describes the practice of bottom trawling and its effects on the high seas environment. Secondly, it examines the existing international law relating to the high seas and the protection of the marine environment, conservation of fish stocks, and the protection of biodiversity, and analyses whether the current international law provides adequate protection for the marine environment from the negative effects of bottom trawling. This article then examines the role of regional fisheries management organisations in protecting the marine environment and conserving living resources of the high seas. Finally, this article provides suggestions about ways international law could provide better protection from the negative effects of bottom trawling on the high seas.
This article focuses on those areas of the ocean delimited as high seas areas. Other areas such as exclusive economic zones (“EEZs”) which are under the jurisdiction and control of individual Nation States will not be examined in detail as they are subject to the national regulation of the coastal State concerned. They will however be briefly mentioned in part 5 where the relationship between EEZs, continental shelves and the high seas, and the rights and responsibilities of states over EEZs and continental shelves are clarified.
2. BOTTOm TRawLINg
Bottom trawling, also known as benthic trawling, is the most common method of fishing the ocean floor in the high seas and provided 80 per cent of the total high-seas bottom fisheries catch in 2001.4 Bottom trawling occurs in deep-sea areas in waters up to two kilometres in depth.5 Massive nets, some of which can be the width of rugby fields, are anchored down and kept open by huge steel-plate doors.6 The bottom of the nets are protected from snagging on the ocean floor by the use of heavy chafing gear which is attached to the underside
of the nets.7 Huge steel or rubber balls are then attached to enable the nets to roll easily over the ocean floor.8
The target catch is often orange roughy, oreo and other commercially valu- able fish; however, the indiscriminate nature of the nets means that everything in their path is caught up and brought to the surface.9 Everything except the target catch is then usually discarded overboard.10 The unintended catch, otherwise known as bycatch, can include everything from commercially valuable fish that were not the target of that particular trawler to endangered species, such as black coral, as well as undiscovered marine life.11
Centuries-old coral forests can be felled in one trawl of the nets, wiping out marine environments that serve as spawning grounds, protection for young fish, and biodiversity hotspots.12 Sponges, squid, crabs and other marine life are also caught up in the nets.13 The result to the ocean floor is complete devastation.
Ninety-five per cent of bottom trawling is carried out by only eleven states: New Zealand, Norway, Portugal, Russia, Spain, Estonia, Iceland, Japan, Latvia, Lithuania, and Denmark/Faroe Islands14.15 An estimated 100–200 vessels bottom trawl on the equivalent of a full-time year-round basis out of a worldwide fleet of 3.1 million vessels.16
While bottom trawling causes huge and possibly irreversible damage to marine habitats and fish stocks and is the most common form of fishing in deep-seas areas, the fish caught through bottom trawling make up only a small percentage of the overall marine catch each year. In 2001, 84 million tonnes of fish were caught worldwide, of which only 170,000–215,000 tonnes were caught through bottom trawling.17
Thus, while bottom trawling is extremely damaging to the marine envir- onment and ecosystems, ninety-five per cent of bottom-trawling activities are carried out by only a small number of boats belonging to eleven countries and contribute only 0.2% of the overall global marine catch annually.18 Action could therefore reasonably and relatively easily be taken to prevent further devastation to the marine environment without threatening global food security.19
3. hIgh seas
The high seas are the areas of ocean outside the territorial jurisdiction of States and are subject to international law. The high seas consist of areas that are deep- sea areas as well as areas that consist of seamounts, hydrothermal vents, and coral reefs.20 Seamounts are underwater mountains that can rise up to 1000 metres from the ocean floor and whose peaks remain underwater.21 Scientists estimate that there are between 30,000 to 100,000 seamounts worldwide.22 Very little is known about the deep sea and seamounts and research is urgently needed to learn more about these habitats.23 From the little that has been documented, it has become apparent that many seamounts support a rich biodiversity.24 The danger is that bottom trawling may make extinct many species before we even discover them. In addition, scientists have discovered that many species of
marine life that inhabit the deep sea and seamounts are endemic.25 The result is that these highly adapted species are very vulnerable to the effects of bottom trawling and extinction.26
In particular, deep-water cold-water coral forests are at risk from bottom trawling. These coral forests are the “rainforests” of the ocean.27 Many corals are hundreds and even thousands of years old and can grow up to 35 metres in height.28 Corals provide a habitat for fish and other marine species, protection for young fish, and a safe spawning ground for fish of reproductive age.29 Therefore, if a coral forest is destroyed, an entire dependent marine ecosystem has lost a habitat. This is particularly destructive as many of the marine species are endemic and are not therefore adapted to living outside of that very specific environment.30 Scientists are unsure whether these slow-growing corals can ever recover.31 One study in the Gulf of Alaska observed a trawl path that had destroyed a tonne of corals.32 It revealed that after seven years some of the larger corals that had survived the trawl were still missing 95–98 per cent of their branches and no new corals had grown.33
Studies have also shown that fish that inhabit the deep seas and seamounts have very specific characteristics.34 They often grow slowly, reproduce only after
many years, and can live to be 150 years old.35 This makes deep-sea fish species vulnerable to overfishing and the recovery of depleted fish stocks difficult and uncertain.36
4. IUU FIshINg
Illegal, Unreported and Unregulated Fishing (“IUU Fishing”) is described in the Food and Agriculture Organisation’s International Plan of Action to Prevent, Deter and Eliminate IUU Fishing.37
Illegal fishing is defined as:38
[Activities] conducted by national or foreign vessels in waters under the juris- diction of a State, without the permission of that State, or in contravention of its laws and regulations; [activities] conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or [activities] in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization.
In short, illegal fishing covers fishing carried out by members of regional fisheries management organisations that fish in contravention of the RFMO’s fishing conservation measures or international law. It also covers any violations of international laws including the RFMO’s fisheries conservation measures, where the State is party to the RFMO.
Unreported fishing is described as:39
[Activities] which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or [activities] undertaken in the area of competence of a relevant regional fish- eries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization.
Briefly, unreported fishing is fishing that is not reported or is misreported to the RFMO in contravention of its reporting procedures.
Unregulated fishing is defined as:40
[Activities] in the area of application of a relevant regional fisheries manage- ment organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or [activities] in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.
With respect to the high seas, unregulated fishing is therefore fishing that is carried out in a RFMO’s zone by vessels with no nationality (flag), or by vessels which fly flags of States which are not party to the RFMO, and which contravenes the RFMO’s fishing conservation measures. It also includes fishing in areas or for fish stocks for which there are no fisheries conservation measures, as well as fishing that is inconsistent with general State obligations of conservation of marine living resources under international law.
IUU fishing is of particular concern for several reasons. Firstly, due to the nature of IUU fishing, information regarding catches is scarce and it is difficult to know exactly what quantity of fish is being taken. Secondly, it is difficult for a regional management regime to effectively manage fisheries conservation in an area when it only has information regarding those countries and boats adhering to the quota system or rules prescribed by that regime. Thirdly, companies who fish in such a manner are often using fishing equipment which is particularly damaging to the environment; for example, equipment used for bottom trawling.
IUU has been extensively described here at the beginning of this paper as it is a theme that needs to be considered when discussing the issues and considering solutions. A lot of IUU fishing is carried out by flag of convenience States and thus any solution to the issues discussed below must take into account the phenomenon of IUU.
5. eXCLUsIVe eCONOmIC ZONes aND CONTINeNTaL sheLVes
The regulation of Exclusive Economic Zones (“EEZs”) and continental shelves is covered by provisions in the United Nations Convention on the Law of the Sea (“UNCLOS”)41 and is briefly mentioned here in order to clarify the relationship between EEZs, continental shelves and the high seas, and the rights and responsibilities of States over the various areas.
An EEZ is defined under article 57 of UNCLOS as an area that “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured”.
Under article 56(1) of UNCLOS, a coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and jurisdiction for the protection and preservation of the marine environment. Thus, coastal States have the exclusive sovereign rights over fish stocks, and indeed all living and non-living resources, and the seabed and subsoil within the EEZ. Coastal States also have jurisdiction over the protection and preservation of the marine environment.
Article 61 declares that coastal States determine the allowable catches of living resources in the EEZ and sets out further principles to assist the coastal States in calculating this.
In the situation where stocks of species occur both within an EEZ and beyond it, the coastal State and the States that fish for the same stock beyond the EEZ are to either directly or through appropriate regional organisations agree upon measures for the conservation of such species.42 Where the coastal State and other States fish in the region for highly migratory fish stocks, they shall cooperate either directly or through an appropriate regional organisation for the conservation of such stocks.43
Thus, coastal States have sovereign rights to regulate fishing within their EEZs and each coastal State will regulate as it wishes.
The continental shelf of a coastal State is defined as:44
[C]ompris[ing] the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea
is measured where the outer edge of the continental margin does not extend up to that distance.
With regard to the abovementioned continental margin, this is defined in article 76(3) as:
[C]ompris[ing] the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
The extent of a coastal State’s rights over the continental shelf is set out in article 77. The coastal State has sovereign rights for the purpose of exploring the continental shelf and exploiting its natural resources. Natural resources, for Part VI of UNCLOS, are defined as:
[T]he mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
The coastal State has the sovereign rights therefore to exploit the mineral and non-living resources of the seabed and subsoil and those living organisms that are sedentary on or under the seabed, or who move while in constant physical contact with the seabed or subsoil. This does not therefore include fish stocks but would include coral reefs, sponges and other marine species that dwell on or under the seabed. Other States are therefore able to fish in the waters superjacent to the continental shelf which are outside of the EEZ.
Whether States may bottom trawl over the continental shelf where coastal States have sovereign rights for the purposes of exploring and exploiting the natural resources is unclear.
On the one hand, it could be argued that States may bottom trawl over the continental shelf as a coastal State’s sovereign rights are only in relation to exploring and exploiting the natural resources of the continental shelf, that is, coastal states do not have full sovereign rights over the continental shelf. In addition, article 78 states that:
The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with ... rights and freedoms of other States as provided for in this Convention.
Thus, a coastal State’s attempt to prevent bottom trawling on the continental shelf might be considered beyond its very limited sovereign rights as bottom- trawling activities are not exploring nor exploiting the minerals, non-living nor living sedentary species. Such resources are caught unintentionally as bycatch, are usually discarded overboard, and are not being actively explored or exploited in the normal everyday sense of those words. The coastal State is the only one that can explore and exploit those resources, but it does not necessarily mean that others cannot be in the area and carry out activities that may incidentally affect those natural resources in some way. The sovereign right is to explore and exploit those natural resources, not a right to perfect resources unaffected in any way by any other State. It could also be argued that such an attempt would be an unjustifiable interference with the freedom to fish as set out in UNCLOS.
On the other hand, it could be argued that States may not bottom trawl over the continental shelf as bottom trawling is such a destructive fishing practice that many of the natural resources are killed or destroyed thereby interfering with the sovereign right of a coastal State to explore and exploit those resources as they have been depleted and destroyed through such activities. This position argues that sovereign rights mean that no one else should be allowed to interfere with those resources in such a way that it limits the coastal State’s ability to explore and exploit those resources or reduces the amount of natural resources available for the coastal State to explore and exploit.
This ambiguity is a gap in the United Nations Convention on the Law of the Sea which needs to be clarified. For the purposes of this paper, this issue is relevant only to the extent of whether this area of the continental shelf is regulated by the coastal State and/or by international law provisions. To clarify then, as discussed above, a coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf where it extends beyond the 200 nautical mile zone and it is at least arguable that coastal States may be able to impose some restriction on bottom-trawling activities of other States in this area where they adversely affect the natural resources as defined above. In reality, no coastal State has ever tried to impose such conditions on vessels of other countries in this way. As the relevant continental shelf provisions do not relate to the superjacent waters, those waters remain high seas and thus bottom trawling on those high seas is also subject to the international conventions set out below to the extent that the State that is bottom trawling has ratified the Convention.
This article will now examine the relevant current international law relating to bottom trawling in the high seas and assess its adequacy to protect the marine environment from the negative effects of bottom trawling.
6. INTeRNaTIONaL Law
This part will analyse the relevant international hard law45 regulating bottom trawling and its effects on the marine environment. The framework United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement, the Food and Agriculture Organisation’s Compliance Agreement, and the Convention on Biological Diversity will be examined. Several soft law documents which are connected to these agreements will also be analysed.
This article will not however analyse other soft law instruments such as the Food and Agriculture Organisation’s Code of Conduct for Responsible Fisheries, Agenda 21, or the Johannesburg Plan of Implementation, as these documents are non-binding. As there is undoubtedly a serious issue with bottom trawling and an obvious reluctance on the part of some States to cease bottom trawling, this article submits that hard law must form the basis of any solution.
6.1 United Nations Convention on the Law of the sea
The United Nations Convention on the Law of the Sea (“UNCLOS”)46 is a com- prehensive framework convention on the law of the sea. UNCLOS covers all areas of the oceans, including the high seas, continental shelves, Exclusive Economic Zones (“EEZs”), territorial sea, contiguous zones, and the seabed. UNCLOS has, for States party to UNCLOS, superseded the 1958 Convention on the High Seas,47 the Convention on the Continental Shelf,48 and the Convention on Fishing and Conservation of the Living Resources of the High Seas.49
UNCLOS has been signed by 157 States and ratified by 149 States.50
UNCLOS has been ratified by all eleven states that currently carry out bottom trawling.51 The European Union has also ratified UNCLOS52 and this ratification binds all European Union states.53 As the European Union is responsible for 60 per cent of current bottom-trawling activities and Spain individually is responsible for 40 per cent of current bottom-trawling activities, it is positive that both have ratified UNCLOS and are bound to enforce its provisions. All States that currently bottom trawl are therefore bound by the provisions set out in UNCLOS.
UNCLOS was drafted with the recognition for:54
In order to achieve these goals, UNCLOS establishes a number of rights and duties. Firstly, UNCLOS states that:55
... (e) freedom of fishing, subject to the conditions laid down in section 2 ...
United Nations: http://www.un.org/Depts/los/reference_files/status2005.pdf (at 31 August 2005).
Thus, the freedom to fish is stated from the outset as a fundamental freedom on the high seas subject to the provisions of UNCLOS, in particular section 2, other rules on international law, and with due regard for the interests of other States also exercising their freedom of fishing on the high seas.
UNCLOS then states more particularly:56
All States have the right for their nationals to engage in fishing on the high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and
(c) the provisions of this section.
Thus, all States have a clear right to fish on the high seas subject only to their other treaty obligations, the rights, duties and interests of coastal States, and Part VII Section 2 of UNCLOS.
Relevant treaties that create obligations for States are examined later in this article. The rights, duties and interests of coastal States were examined under part 5 of this article. Part VII Section 2 of UNCLOS is considered below.
Article 117 of UNCLOS states that:
All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conser- vation of the living resources of the high seas.
Article 117 sets out therefore a duty on every State to take such measures, or to cooperate with other States to take such measures, for their nationals as may be necessary for the conservation of living resources of the high seas. This provision mentions the concept of cooperation which is common in UNCLOS provisions and relies on jurisdiction based on nationality which is discussed further below.
Article 118 states that:
States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end.
Thus, article 118 again requires States to cooperate in conserving and managing marine living resources in high-seas areas. Where more than one State utilises living resources in one area or the same living resources, States must negotiate in order to ensure such resources are conserved. To this end and where appropriate, regional fisheries management organisations should be established. Regional fisheries management organisations will be considered in detail in part 7 of this paper.
Article 119 states that, when determining allowable catch and establishing other conservation measures for living resources on the high seas, States shall take measures which result in maximum sustainable yield and take into consideration:
[T]he effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
The maximum sustainable yield approach has not been very effective in practice, with many fish stocks around the world either severely depleted or collapsed. Thus, article 119, as a whole, has not been very successful in practice.
In addition to the above duties under Part VII Section 2, Article 192 states that States have the “obligation to protect and preserve the marine environment”. Article 194(5) states that necessary measures to “protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life” should be taken, albeit in reference to preventing, reducing, and controlling pollution of the marine environment. Pollution could of course include, for example, the dumping of putrefied bycatch, damaged nets and other bottom-trawling fishing gear in the oceans so is relevant to the discussion of bottom-trawling activities. This is an interesting clause as it presupposes that we have the necessary knowledge to determine what are the rare and fragile ecosystems. The reality is that we have very little knowledge of the ecosystems and species of the deep sea.57 Bottom trawling is destroying ecosystems about which we have very little or no knowledge. It has been estimated that there are between 500,000 and 10 million
undiscovered species in the deep sea, many of which are endemic.58
Article 197 refers again to the use of regional fisheries management
organisations and multilateral negotiations and agreements for the conservation of the marine environment:
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preser- vation of the marine environment, taking into account characteristic regional features.
This duty to cooperate as mentioned under articles 118 and 197 is a legally enforceable duty. The International Tribunal for the Law of the Sea has stated (in circumstances different to those considered here but relevant nevertheless) that the duty to cooperate is a:59
[F]undamental principle in the prevention of pollution of the marine environ- ment under Part XII of the Convention and general international law and that rights arise therefrom which the Tribunal may consider appropriate to preserve under Article 290 of the Convention.
Thus, it can be seen from the provisions set out above that while there exists a freedom to fish on the high seas, that freedom is subject to, inter alia, the above provisions. The above provisions clearly and repeatedly set out the general principles and obligations to conserve and protect the marine environment, a duty to conserve living resources of the high seas, a duty to cooperate with others, a duty to take into account the interests of others, and a duty to protect fragile marine ecosystems that are associated with or dependent upon the fish stocks being harvested.
Bottom trawling, by comparison, is one of the most destructive modern-day fishing practices. Entire sections of the marine environment can be devastated in just one trawl.60 Moreover, bottom trawling often takes place in areas of special sensitivity such as coral reefs (which are also often called biodiversity hotspots) as this is where fish gather to spawn.61 By bottom trawling in areas where there
are coral reefs, marine environments are destroyed that have taken hundreds, if not thousands, of years to develop.62 Ipso facto, bottom trawling in these areas is not protecting nor preserving the marine environment nor conserving the living resources of the high seas. Instead, bottom trawling is wiping out areas, which are rich in biodiversity and often endemic, that have taken hundreds of years to develop.63 It is not known whether these areas will ever recover.64 If they do recover, it will take hundreds and thousands of years.65 In addition, fish that dwell in the deep seas are known to mature slowly, live a long time, and often only reproduce when they reach 20–30 years old.66 If bottom trawling is allowed to occur in areas where fish spawn, fish stocks will not be able to reproduce and may face extinction. By wiping out marine environments that are often endemic and by overfishing species that take many years to reach reproductive maturity, bottom trawling is by definition unsustainable and contrary to the fundamental framework provisions set out above which confirm on what basis States may fish on the high seas.
Bottom trawling is thus clearly contrary to the principles and framework provisions of UNCLOS which promotes the conservation, protection, and preservation of the living resources of the high seas and their marine environ- ments. The next issue then is that of enforcement. The biggest weakness with UNCLOS is the heavy reliance on States to enforce these and other environ- mental provisions against vessels flying their flags.
Flag State jurisdiction is the usual form of jurisdiction on the high seas and UNCLOS relies heavily on this form of jurisdiction for enforcement of its provisions. Flag State jurisdiction is a form of jurisdiction based on nationality. Under flag State jurisdiction, a State has jurisdiction over its nationals and vessels flying its flag on the high seas. A State can therefore legislate that its nationals and vessels flying its flags comply with certain legal provisions to conserve living resources of the high seas and protect the marine environment, and can then enforce that legislation.
The following provisions of UNCLOS give a brief outline of flag State jurisdiction, what it means, and who enforces it.
Article 91(1) of UNCLOS states that:
2004); Save the High Seas: http://www.savethehighseas.org/pubs_coalition.cfm (at 7 August 2005).
Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must be a genuine link between the State and the ship.
Article 91(1) of UNCLOS declares that vessels have the nationality of the flag that they fly, there must be a genuine link between the State and the vessel, and that the State may prescribe the conditions under which a vessel may fly its flag.
Article 92(1) of UNCLOS states:
Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
In short, Article 92(1) declares that a vessel may sail under one flag only, and is generally subject to the exclusive jurisdiction of that flag State on the high seas. A vessel may not change its flag while on a voyage or while in a port unless it has changed registries or there has been a real change of ownership. All vessels must be registered with a State.
Article 94, which outlines the duties of the flag State, declares that the flag State shall effectively exercise its jurisdiction and control over vessels under its domestic law:
(b) assume jurisdiction under its internal law over each ship flying its flag ...
Other States which have grounds to believe that proper jurisdiction and control have not been exercised with respect to a ship may report this, under Article 94(6) to the flag State, which then investigates, and if necessary takes the necessary action to remedy the matter. This could include the arrest and prosecution of the master and officers.
Article 94(6) states:
A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.
In this context, flag State jurisdiction means that the flag State is responsible for ensuring that the vessels flying its flag comply with the legal obligations relating to the conservation of the living resources of the high seas and the protection of the marine environment set out in UNCLOS.
If a flag State is a responsible member of the international community, has signed UNCLOS, and is diligent in effecting control over vessels flying its flag, flag State jurisdiction can be a very effective jurisdictional approach in achieving compliance with international instruments. A flag State has the power to investigate, arrest, and prosecute offending vessels flying its flag to the full extent possible under its national laws. This can be a very real deterrent.
However, if a flag State is either unable or unwilling to enforce compliance with UNCLOS and other relevant instruments’ provisions and does not exercise effective control over vessels flying its flag, then those vessels are effectively free to fish for as much as they can and in whatever manner they wish on the high seas. Generally, no other State may arrest and prosecute them for violations on the high seas.
The most extreme example of non-enforcement under flag State jurisdic- tion is a flag of convenience State.67 States such as Belize, Vanuatu, Namibia, Saint Vincent and the Grenadines register vessels on their registry for a fee and then do not enforce compliance with the relevant laws and regulations.68 Most of the time, these countries never see the vessels.69 Such States are often referred to as flag of convenience States.70 Vessels from States which do enforce compliance with UNCLOS and other instruments can simply re-flag to a flag of convenience State, thereby evading compliance, knowing that compliance will not be enforced by the flag of convenience State.
The success of flag State jurisdiction in achieving compliance depends largely on whether a flag State is pro-fisheries conservation measures and has the resources to enforce compliance with the measures. The nature of high- seas fishing does not necessarily provide an incentive to flag States to enforce fisheries conservation measures with vessels flying its flag. Flag States do not necessarily directly and immediately suffer loss if they do not enforce the fisheries conservation measures, unless the area is directly next to their EEZ. Flag State jurisdiction has so far been unable to deal effectively with the issue of flags of convenience and other less extreme cases.
Although none of the eleven States currently carrying out bottom trawling on the high seas are flag of convenience States, the flag of convenience is still very relevant to the issue of bottom trawling. If any, or all, of those eleven States were to enforce existing international law and/or introduce national legislation rendering bottom trawling illegal on the high seas for vessels flying their particular flag, it is foreseeable that companies who bottom trawl might re-flag to flag of convenience States, thereby avoiding compliance with their national law, and continue to bottom trawl. It is for this reason that a global solution must be sought to solve the issue of bottom trawling, one that all States abide by.
6.2 United Nations Fish stocks agreement
The 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 (“Fish Stocks Agreement”)71 is an agreement which focuses specifically on implementing the UNCLOS provisions regarding the conservation and management of straddling and highly migratory fish stocks. The Fish Stocks Agreement decrees that such conservation and management must be in accordance with the precautionary principle, the ecosystem approach, and best available scientific information. It also emphasises the UNCLOS principle of cooperation to ensure that both conservation and optimum utilisation of fisheries resources are achieved on both sides of the Exclusive Economic Zone. To this end, it calls for the development of regional fisheries management organisations.
The Fish Stocks Agreement has been signed by 59 States and ratified by 53 States.72 The Fish Stocks Agreement has been ratified by seven of the States that currently bottom trawl. Japan has signed but not yet ratified the Fish Stocks Agreement. Estonia, Latvia and Lithuania have not signed nor ratified it. The European Union, however, has ratified the Fish Stocks Agreement, which therefore also binds Estonia, Latvia and Lithuania. As previously stated, the European Union is responsible for 60 per cent of current bottom-trawling
activities and Spain individually is responsible for 40 per cent of current bottom- trawling activities, so it is positive that both have ratified both UNCLOS and the Fish Stocks Agreement and are bound to enforce their respective provisions to the fullest extent possible. Therefore, all States that currently bottom trawl, except Japan, are bound by the provisions set out in the Fish Stocks Agreement. As Japan has ratified UNCLOS, it is still bound by the more general principles and framework provisions of UNCLOS.
Among fishing States that are known for IUU fishing, Mauritius and Namibia have both ratified the Fish Stocks Agreement and Belize has signed but not ratified it.73 Namibia is the first flag of convenience State to ratify the Fish Stocks Agreement.
The preamble to the Fish Stocks Agreement states that the State Parties to the Fish Stocks Agreement are:
Conscious of the need to avoid adverse impacts on the marine environment, preserve biodiversity, maintain the integrity of marine ecosystems and minim- ize the risk of long-term or irreversible effects of fishing operations ...
Adverse impacts on the marine environment, loss of biodiversity, damage to the integrity of marine ecosystems, and the risk of long-term or irreversible effects of fishing operations all occur as a result of bottom trawling.
There are several articles of the Fish Stocks Agreement that are directly relevant to bottom trawling. Articles 5 and 6 both prescribe a precautionary approach. Article 5(c) decrees that States shall apply the precautionary approach in accordance with article 6. Article 5(d) declares that States must “assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks”. Article 5(e) declares that States must:
Thus, States have an obligation to adopt, where necessary, conservation and management measures in relation to species belonging to the same ecosystem
or associated with or dependent upon the target catch, to ensure the sustainable management of species.
Article 5(f) states that States must:
Under article 5(f ), States have an obligation to minimise bycatch and to develop and use environmentally safe and cost-effective fishing gear and techniques. It is submitted that the technique of bottom trawling, by contrast, maximises bycatch by trawling huge nets across areas that are rich in sedentary species, corals and sponges. States also have an obligation to develop environmentally safe fishing gear, which is a positive step forward as current bottom-trawling fishing gear is among the most destructive fishing gear in existence.
Article 5(g) states that States must “protect biodiversity in the marine environment”. By contrast, bottom trawling indiscriminately destroys virtually all biodiversity in its path. Articles 5( j) and 5(k) require States to collect and share information and article 5(l) requires States to “implement and enforce conservation and management measures through effective monitoring, control and surveillance”.
Article 6(1) states that States shall apply the precautionary approach. Article 6(2) requires States to be:
[m]ore cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.
Article 6(3)(d) requires States to “adopt plans which are necessary ... to protect habitats of special concern”.
In addition, article 6(6) states that States must adopt cautious conservation and management measures, including catch limits and effort limits, for new or exploratory fisheries.
The above provisions are directly relevant to straddling and highly migratory fish stocks and their marine environment, and States which have ratified the Fish Stocks Agreement and bottom trawl for such fish stocks are bound by these provisions. While not all fish caught through bottom trawling will be straddling or highly migratory fish stocks, it is likely that the majority of fish caught can
be described as straddling stock as fishing often takes place near EEZs.74 In particular, the major bottom-trawling sites in the Northeast Atlantic are near the Hatton Bank and Rockall Plateau which straddle EEZs and the high seas, and in the South Pacific, the South Chatham Rise and Northwest Challenger Plateau which straddle the high seas and New Zealand’s and Australia’s EEZs.75 States party to the Fish Stocks Agreement and who bottom trawl would therefore appear to be in breach of at least some, if not all, of the above provisions contained in articles 5 and 6.
The Fish Stocks Agreement utilises flag State jurisdiction, as well as non-flag State jurisdiction and port State jurisdiction to enforce its provisions.
The Fish Stocks Agreement has developed flag State jurisdiction a step further than what is decreed in UNCLOS. Article 19 obliges a State to enforce fisheries conservation measures on vessels flying its flag while article 18 sets up a licensing scheme and article 20 encourages States to cooperate with each other in the investigation of possible breaches of fisheries conservation measures. Ultimately, however, enforcement remains with the flag State.
A different basis of jurisdiction called non-flag State jurisdiction is also set out in the Fish Stocks Agreement as an additional means of basis for enforcement. Non-flag State jurisdiction exists where a State has the right to board and inspect a vessel flying the flag of another State. The right does not extend to the arrest and prosecution of that vessel by a State which is not the flag State. Thus, non-flag State jurisdiction is also a form of jurisdiction based on nationality and the consent of flag States.
The concept of non-flag State jurisdiction is included in UNCLOS for certain very specific situations, but does not extend to fisheries conservation. The Fish Stocks Agreement is the first global fisheries agreement to include the concept of non-flag State jurisdiction.76
Article 21(1) of the Fish Stocks Agreement contains a provision that is completely new. It states:
In any high seas area covered by a subregional or regional fisheries manage- ment organization or arrangement, a State Party which is a member of such organization or a participant in such arrangement may, through its duly
authorized inspectors, board and inspect ... fishing vessels flying the flag of another State Party to this Agreement, whether or not such State Party is also a member of the organization or a participant in the arrangement, for the purpose of ensuring compliance with conservation and management measures for straddling fish stocks and highly migratory fish stocks established by that organization or arrangement.
Thus, article 21(1) authorises a State party to the Fish Stocks Agreement which is also a party to a RFMO to board and inspect a fishing vessel flying the flag of a State which is party to the Fish Stocks Agreement, regardless of whether that State is a member of the RFMO.77 The result is that a State which is not a party to the RFMO may become bound to comply with fisheries conservation measures set out by the RFMO for its area of the high seas even if that State is not a party to the RFMO.78 The practical result of this article may be that an RFMO has a way to exercise jurisdiction over States who insist on bottom trawling in the area concerned, including flag of convenience States, whether States are members of the relevant RFMO or not.
Under Articles 21(6) and 19, the flag State of the vessel that has been boarded is still responsible for ensuring compliance with fisheries conservation measures, including arresting and prosecution, where necessary. However, under Article 21(6)(b), the flag State of the vessel may authorise the inspecting State to investigate. Where the inspecting State investigates, pursuant to authorisation from the flag State, the inspecting State must then communicate the results of the investigation to the flag State without delay.79 The flag State may then take enforcement action against the vessel, or alternatively may authorise the inspecting State to take such enforcement action against the vessel as the flag State specifies.80 Thus, while the jurisdiction to enforce remains with the flag State, the flag State may authorise the inspecting State to investigate and enforce according to its instructions.
Under Article 21(8), after boarding and inspecting, where there are clear grounds for believing that a vessel has committed a serious violation and the flag State has either failed to respond or take action under Article 21, inspectors may remain on board and secure evidence and may require the master to bring the vessel to the nearest appropriate port, without delay, and inform the flag State.
An intriguing result of such provisions is that States with the finances, technology, and interest in fishing conservation measures and protection of the marine environment can enforce compliance with such measures in the above situation, subject to authorisation by the flag State.
The only potential concern is whether those States that do not currently enforce compliance with fisheries conservation measures will ratify the Fish Stocks Agreement. While the provisions of the Fish Stocks Agreement are unique and far-reaching, the actual effectiveness of the Fish Stocks Agreement will be in part determined by which States ratify it. Seven of the States that currently bottom trawl have ratified the Fish Stocks Agreement, and three others that are part of the European Union, which has ratified the Fish Stocks Agreement, must abide by the Fish Stocks Agreement provisions. However, if these States enforce these provisions against its vessels under their jurisdiction that bottom trawl, those vessels may simply re-flag to a flag of convenience State. It is submitted that if flag of convenience States do not sign the Fish Stocks Agreement, the non-flag State jurisdiction element could result in no real change. Currently, the only flag of convenience States to have ratified the Fish Stocks Agreement are Namibia and Belize.81
In brief, non-flag State jurisdiction is a constructive and potentially very effective basis of jurisdiction for the high seas. Non-flag State jurisdiction can be utilised by RFMO members, who are party to the Fish Stocks Agreement, to enforce compliance with RFMO fisheries conservation measures, including RFMO prohibitions or restrictions on bottom trawling, by States party to the Fish Stocks Agreement, even though those States may not be members of that particular RFMO.
A further option for enforcement of the Fish Stocks Agreement provisions is port State jurisdiction. Its basis lies in territorial jurisdiction over vessels voluntarily in a State’s port. It involves port State intervention through a port State’s rights and duties to assist in the enforcement of obligations in conventions to which they are a party.
The Fish Stocks Agreement has developed port State jurisdiction in relation to fisheries conservation measures under Article 23. Article 23 states:
a port State shall not discriminate in form or in fact against the vessels of any State.
Thus, under Article 23(1), a port State has the right and duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. The port State must not discriminate against the vessels of any State, and under Article 23(2) the vessel must be voluntarily in port.
Under Article 23(2) the port State may, inter alia, inspect documents, fishing gear and catch on board. “Inter alia” indicates that other measures may be taken as well. There has been some discussion as to what “inter alia” may include in practice. Some writers have argued that “inter alia” may also include detention, arrest, or continued boarding.82 Other writers have suggested that it is “evident, however, that it excludes the detention of vessels since the reference to that effect in the original draft was subsequently deleted after strong objections”.83
Article 23(3) mentions one type of action that a port State may take after inspection: it may prohibit landings and transshipments where it has been established that the catch was taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas; for example, transshipments could be prohibited if they were found to contain species caught using bottom-trawling techniques in contravention of regional conservation measures.
One RFMO, the Commission for the Conservation of Antarctic Marine Living Resources (“CCAMLR”), has had some limited success in recent years with the concept of port State jurisdiction as a means to enforce compliance with its fisheries conservation measures.84 In 1997, CCAMLR adopted the “Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures”.85 Under this scheme, any vessel seen fishing within the CCAMLR area which is not a party to CCAMLR is “presumed to be
undermining the CCAMLR Conservation Measures”86. If the vessel then enters the port of a CCAMLR member, it must be inspected.87 If fish stocks are found which are subject to CCAMLR fisheries conservation measures, all CCAMLR members will “prohibit landings in their ports and transshipments in their waters”88.89 Most ports close to the Southern Ocean are in CCAMLR members’ territory90 however there are several ports that process catches that are not parties to CCAMLR.91 These ports are in Mauritius and Mozambique.92 Mauritius ratified the Fish Stocks Agreement in 1997 however, and is thus under an obligation under Article 23(1) to take measures to promote the effectiveness of regional conservation and management measures.93
In summary, the concept of port State jurisdiction is an effective tool for enforcing compliance with fisheries conservation measures in the high seas, when it is used to supplement other existing jurisdictional approaches. Vessels must often travel great distances to bring their catch to port. If bottom trawlers are refused permission to unload their catches at ports belonging to members of a particular RFMO, due to contravention of its fisheries conservation measures, and vessels that bottom trawl then have to travel greater distances to ports who will accept them, the additional cost may result in more sustainable fishing practices being adopted in order to be able to access closer ports.
Thus, the Fish Stocks Agreement takes a positive step forward in developing both flag and port State jurisdiction, as well as introducing non-flag State jurisdiction, in relation to fisheries conservation measures with respect to straddling and highly migratory stocks. To the extent that straddling and highly migratory stocks are caught through bottom trawling by States that have ratified the Fish Stocks Agreement, those bases of jurisdiction will apply.
6.3 Food and agriculture Organisation’s Compliance agreement
The Food and Agriculture Organisation’s Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (“FAO Compliance Agreement”)94 is an attempt to address
the weaknesses of flag State jurisdiction under UNCLOS. Its purpose is to ensure that all vessels on the high seas are licensed and subject to the actual and effective control and authority of the flag State, and to this end it sets out additional obligations of flag States.95 The FAO Compliance Agreement is not limited to straddling and highly migratory fish stocks, rather it covers all fishing on the high seas, and thus includes all bottom-trawling activities on the high seas.
To date, only 31 States have signed the FAO Compliance Agreement.96 Three of the eleven main bottom-trawling states have signed the FAO Compliance Agreement and are therefore bound by its provisions.97 The three States are New Zealand, Japan and Norway.98 In addition, the European Union has also signed, which binds all European Union States, and in particular, the six European States that carry out bottom trawling, namely Denmark, Estonia, Latvia, Lithuania, Portugal and Spain.99 This is very positive as the European Union is responsible for 60 per cent of bottom-trawling activities.100 Only three flag of convenience States, Mauritius, Namibia and Belize have signed the FAO Compliance Agreement.101 The FAO Compliance has therefore not enjoyed broad acceptance within the wider international community.
It is highly unlikely that States that are generally considered flags of convenience States by the international community would become party to the FAO Compliance Agreement without substantial incentives. It is therefore difficult to see how the FAO Compliance Agreement would ameliorate the situation of flag of convenience vessels and how it would prevent a vessel, which is currently flagged to a State that bottom trawls, from re-flagging to a flag of convenience State which has not signed the FAO Compliance Agreement, to avoid compliance with fisheries conservation measures.
15/93 of the 27th Session of the FAO Conference, (entered into force 24 April 2003) (“FAO Compliance Agreement”); Food and Agriculture Organisation: http://www.fao.org/DOCREP/ MEETING/003/X3130m/X3130E00.HTM (at 7 August 2005).
With specific regard to bottom trawling, the relevant sections of the FAO Com- pliance Agreement are articles III and VIII. Article III prescribes additional obligations on flag States:
Each Party shall take such measures as may be necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures.
The FAO Compliance Agreement also obliges flag States to take effective action against a vessel if it is to be licensed for the high seas and requires States to withdraw the registration of any vessel it cannot effectively exercise control over.102
Article VIII(2) states that:
The Parties shall cooperate in a manner consistent with this Agreement and with international law to the end that fishing vessels entitled to fly the flags of non-Parties do not engage in activities that undermine the effectiveness of international conservation and management measures.
The FAO maintains a record of all vessels fishing on the high seas and can track those vessels that try to re-flag to avoid complying with fisheries conservation measures.103 Its main focus is therefore on developing the duties of flag States, creating a universal high-seas register to track the registration of individual vessels, and preventing vessels from re-flagging as a means of avoiding compliance with fisheries conservation measures.
The purpose of the FAO Compliance Agreement is to increase the effectiveness of flag State jurisdiction so that international conservation and management measures are more frequently complied with by vessels on the high seas. This is a positive development in strengthening flag State jurisdiction.
The FAO Compliance Agreement also introduces the concept of port State jurisdiction to fisheries conservation through Article 5(2). Article 5(2) states that ports should promptly notify the flag State when a vessel is voluntarily in its port and there is reason to believe that the vessel has engaged in activities which undermine the effectiveness of international conservation measures. However,
special arrangements would need to be made before a port State could then conduct investigations.
In summary, the FAO Compliance Agreement is primarily concerned with the issue of flag State jurisdiction and flags of convenience, and its application to bottom trawling is primarily in relation to the additional responsibilities of flag States to ensure vessels flying their flag comply with international conservation and management measures.
6.4 United Nations Convention on Biological Diversity
The United Nations Convention on Biological Diversity (“Biodiversity Convention”)104 is dedicated to the promotion of sustainable development and was drafted as a tool to realise the principles of Agenda 21.105 The objectives of the Biodiversity Convention are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.106
The Biodiversity Convention has been ratified by an astonishing 188 States.107 All of the States that carry out bottom-trawling activities, as well as the European Union, have ratified the Biodiversity Convention.108 Most flag of convenience States have also ratified the Biodiversity Convention.109 This is relevant as, if the current bottom-trawling States decide to enforce fisheries conservation and management measures to protect fish stocks and the marine environment, it is likely that vessels currently flying their flags will re-flag to flag of convenience States, who also have obligations under the Biodiversity Convention.
There are many very interesting provisions of the Biodiversity Convention. Firstly, “biological diversity” is defined in article 2 as including marine ecosystems:
Secondly, the precautionary approach is highlighted in the Preamble:
[W]here there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat ...
Article 3 affirms that States are responsible for ensuring that “activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. This article is referring both to territorial and national jurisdiction. Article 3 is relevant firstly to those coastal States that bottom trawl within their EEZs. In such cases, coastal States have an obligation to ensure that bottom-trawling activities within their EEZ do not cause damage to the marine environment beyond the EEZ. Secondly, all States must ensure that bottom-trawling activities under their jurisdiction do not damage the environment beyond the limits of national jurisdiction, that is, the high seas.
It is submitted that, by definition, and with current gear used, bottom trawling damages, if not completely destroys, the seabed, and that, if a State allows vessels flying its flag to bottom trawl, that State is in breach of article 3.
Article 5 states that:
Each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.
Article 5 restates the principle of cooperation that has been declared in UNCLOS and the Fish Stocks Agreement. In this article, however, the duty to cooperate is only “as far as possible” and “as appropriate”. The duty of cooperation is in relation to areas beyond national jurisdiction, that is, the
high seas, on matters of interest to all relevant States, and for the purpose of conservation and sustainable use of biological diversity. There is thus clearly a duty for States to cooperate regarding the issue of bottom trawling on the high seas, as bottom trawling, it is submitted, is not a sustainable use of biological diversity and by its destructive nature is not conducive to conservation of the marine environment.
Article 8 provides for in-situ protected areas to conserve areas of biological diversity. Although it refers to “[e]ach Contracting Party”, it is submitted that the duty taken together also refers to groups of Contracting Parties operating as RFMOs or other regional organisations.
Article 10 declares that each State shall “as far as possible and as appropriate” adopt measures “relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity”. States clearly have an obligation under this article to avoid or minimise the adverse impact of bottom trawling on marine biological diversity. This could be achieved either through not bottom trawling at all or by using more environmentally friendly fishing gear.
The requirements for impact assessment and minimising adverse impacts are outlined in article 14. Notification, consultation, and the exchanging of information on activities under their jurisdiction or control “which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction” are encouraged through the conclusion of bilateral, regional and multilateral agreements.
Article 22(1) is significant in that it effectively declares that, where the exercise of rights and obligations under other conventions would cause a “serious damage or threat to biological diversity”, the Biodiversity Convention prevails. Article 22(2) then explicitly declares that the Biodiversity Convention is to be implemented in a manner consistent with the law of the seas when the marine environment is considered.
In 1995, States party to the Biodiversity Convention adopted the Jakarta Mandate on Marine and Coastal Biodiversity (“Jakarta Mandate”).110 The Jakarta Mandate has two particularly important clauses in relation to bottom trawling. Firstly, the Jakarta Mandate states that:111
Parties should, where appropriate and practical, prevent physical alteration, destruction and degradation of vital habitats and pursue restoration of degraded habitats, including spawning areas, nurseries of stocks of living marine resources ...
Bottom trawling is a destructive fishing practice which damages and destroys marine habitats; in particular, spawning areas and nurseries of fish stocks. This clause seems to be exactly relevant to the issue of bottom trawling and places an obligation squarely on the shoulders of the States who bottom trawl to cease their activities and to do what is “appropriate and practical” to assist in restoration of these areas. As bottom trawling is carried out by only a handful of States, and supplies only 0.2 per cent of the annual global fish catch, a cessation of bottom trawling would not affect food security nor make a significant dent in global fisheries revenue, and therefore, it is submitted, would be both an “appropriate and practical” action to take.
Secondly, in the same Decision, it is stated that the precautionary approach is to be explicitly used when assessing conservation and sustainable use issues.112
The 2004 Conference of the Parties to the Biodiversity Convention’s Decision VII/5 is a strong call to the General Assembly and all members to take whatever action they can to prevent further destruction of the marine environment.113 Decision VII/5 notes the United Nations General Assembly Resolution 58/240,114 in particular paragraphs 51 and 52, which call on regional bodies to urgently investigate how to better address, using the precautionary approach, the threats and risks to vulnerable and threatened marine ecosystems and biodiversity in areas beyond national jurisdiction. Decision VII/5 then:115
[S]tresses the need for rapid action to address these threats on the basis of the precautionary approach and the ecosystem approach, in marine areas beyond the limits of national jurisdiction, in particular areas with seamounts, hydrothermal vents, and cold-water corals, other vulnerable ecosystems and certain other underwater features, resulting from processes and activities in such areas ...
Diversity; Convention on Biological Diversity: http://www.biodiv.org/decisions/default. aspx?lg=0&m=cop-07&d=05 (at 4 September 2005), art 60.
In the next paragraph, Decision VII/5 then calls upon the General Assembly and other international organisations:116
[T]o urgently take the necessary short-term, medium-term and long-term measures to eliminate/avoid destructive practices, consistent with international law, on scientific basis, including the application of precaution, for example, consideration on a case by case basis, of interim prohibition of destructive practices adversely impacting the marine biological diversity associated with the areas identified in paragraph 60 above ...
Paragraph 62 of Decision VII/5 calls on members to also take what measures they can to respond to the loss or reduction of marine biodiversity associated with the above areas.
Although bottom trawling is not specifically mentioned in Decision VII/5, this decision is an explicit recognition that the existing international legal measures do not provide adequate protection from the negative effects of destructive fishing practices such as bottom trawling on the high seas and explicitly calls for the United Nations General Assembly to declare an interim prohibition of destructive fishing practices in areas beyond national jurisdiction, in particular, areas with seamounts, hydrothermal vents, cold-water corals and other vulnerable ecosystems. Bottom trawling is a destructive fishing practice and the areas stated are the favourite fishing grounds for vessels bottom trawling as these areas are often spawning grounds and therefore attract high numbers of fish.
Article 4 states that States are responsible for biological diversity within their national borders and, for the purposes of this article, also responsible for processes and activities carried out under its jurisdiction or control within national jurisdiction or beyond. Thus, the Biodiversity Convention relies on a State enforcing the provisions of the Biodiversity Convention against vessels flying its flag on the high seas, that is, the Biodiversity Convention uses flag State jurisdiction. Flag State jurisdiction and its strengths and weaknesses have been discussed above and apply equally to the Biodiversity Convention.
In addition, in case of disputes between States party to the Biodiversity Convention, under article 27 parties must seek resolution through negotiation.117 If negotiation fails, the parties may seek mediation.118 If neither negotiation
27(1) (entered into force 29 December 1993) (“Biodiversity Convention”).
nor mediation is successful, arbitration or the submission of the dispute to the International Court of Justice can be the next step.119 Otherwise, conciliation proceedings are commenced in accordance with Part 2 of Annex II unless parties otherwise agree.120
In summary, the fact that 188 States out of a possible 191 States globally have ratified the Biodiversity Convention, and indeed so quickly, is quite unusual. One interpretation of this fact would be to declare success and to claim that the States of the world now realise the importance of the principles and provisions in the Biodiversity Convention and are virtually united in making a change. A second, less optimistic perspective, would question why so many States had signed the Biodiversity Convention and yet activities such as bottom trawling were still continuing. This perspective would query whether States were signing treaties with the right motivations to make steps toward real change to protect and conserve the marine environment.
States could argue, as indeed many States have, that implementation of the Biodiversity Convention needs to happen incrementally over time due to financial restraints. However, 12 years have passed since the entry into force of the Biodiversity Convention and bottom trawling is still taking place and set to increase in the near future as fish stocks continue to collapse around the world and the fishing industry seeks new fishing grounds. Moreover, the eleven States that are currently bottom trawling are among the wealthiest States globally. Furthermore, the annual income from bottom trawling is a mere USD$300–400 million in a fishing industry that earns more than USD$75 billion annually from marine fish catches.121
It is submitted that these eleven states are flagrantly breaching the provisions of the Biodiversity Convention relating to fisheries conservation and protection of the marine environment as they allow vessels under their jurisdiction to plunder fish stocks on the high seas and to destroy endemic marine environments.
7. RegIONaL FIsheRIes maNagemeNT ORgaNIsaTIONs
The United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement, the FAO Compliance Agreement, and the United Nations Biodiversity Convention all mention regional fisheries management organisations (“RFMOs”) in relation to the conservation and protection
of the marine environment. UNCLOS declares that States have a duty to cooperate through global, regional and subregional groups as is necessary for the conservation of the living resources of the high seas.122 Provisions in the Fish Stocks Agreement strengthen the duty in relation to straddling and highly migratory fish stocks, and the Biodiversity Convention strengthens this duty in relation to the protection of biological diversity. Provisions in the FAO Compliance Agreement also call for cooperation through regional groups to achieve the objectives of that agreement. RFMOs therefore play an important role in the international strategy for the protection of the marine environment and conservation of the living resources of the high seas. This part assesses the performance of the RFMOs to date with respect to conserving the living resources of the high seas and protection of the marine environment.
There are over 30 regional fisheries bodies globally, most of which provide only advice to member States.123 However, some are RFMOs which have varying levels of authority and resources to assess quantities of fish stocks, set catch quotas, and inspect and regulate the type of fishing gear used.124 The purpose of RFMOs is usually to regulate fishing of particular species,125 despite the broader mandate in the four above-mentioned conventions.
RFMOs, which have the competence to regulate bottom activities and to protect the marine environment against the effects of bottom trawling, exist in the Northeast Atlantic Ocean, the Northwest Atlantic Ocean, the Southern Ocean, the Southeast Atlantic Ocean, and the Mediterranean Sea.126
In 2002, the North East Atlantic Fisheries Commission (“NEAFC”) set a cap on deep-sea species caught through bottom trawling.127 However, the cap was set at the highest-level catch from previous years, which is far above what is currently being caught due to very depleted fish stocks.128 In addition, no provision has been made for the protection of seamounts, coral reefs or other sensitive areas.129
The Northwest Atlantic Fisheries Organisation (“NAFO”) is considered to regulate deep-sea trawling relatively well.130 However, it does not regulate the
protection of coral reefs, seamounts nor the seabed generally.131 Furthermore, in 2002, both Denmark/Faroe Islands and Estonia refused to accept NAFO’s catch and effort limit even though they had taken a combined 40 per cent of the total catch the year before.132 Finally, many species are still completely unregulated in the Northwest Atlantic.133
The Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (“SEAFO”) came into force in 2003 and has the competence to regulate bottom-trawling activities within its area of the high seas.134 It is, however, not yet fully operational and has only been ratified by a small number of States.135
The General Fisheries Commission of the Mediterranean has competence to regulate bottom-trawling activities.136 In February 2005 it banned bottom trawling in the entire Mediterranean area at a depth below 1000 metres.137 However, no regulation of bottom trawling at depths less than 1000 metres has yet taken place.
The only other RFMO to have regulated deep-sea f isheries is the Commission for Conservation of the Antarctic Marine Living Resources (“CCAMLR”).138 In 2003 and 2004 it permitted two boats to bottom trawl in the Southern Ocean; however, it limited the catch, specified certain areas where the boats could bottom trawl, and mandated that each boat have at least one independent scientific observer on board.139 IUU fishing, however, remains an issue in the isolated Southern Ocean.140
All of these RFMOs have the competence to regulate bottom trawling in their respective areas. All member States of the RFMOs have a duty to cooperate under the conventions discussed above for the conservation and protection of the marine environment (to the extent that they have ratified those conventions). However, this duty to cooperate does not seem to be producing the desired results. Member States of an RFMO can unilaterally elect not to be bound by a RFMO rule, as Denmark and Estonia did in 2002.141 Rules are usually made by consensus,142 and therefore vulnerable to firstly the “veto vote”, whereby one
State decides to stop a rule coming into force by withholding its support, and secondly the “lowest common denominator” of what States can agree to. States are not bound by rules of a RFMO to which they do not belong.143 Enforcement is usually left up to flag States and, when rules are enforced, vessels can simply re-flag to a flag of convenience State.144 Finally, unrealistic quotas are often set that are above current fishing levels,145 thereby making a mockery of the quota system.
However, there is something that surpasses the generally poor management of areas of the high seas by RFMOs in terms of lack of regulation and that is the fact that there are large areas of the high seas which have no RFMOs and therefore effectively no management or regulation at all.146 There are no RFMOs in the Southwest Indian Ocean, Southwest Pacific Ocean, or Southeast Pacific.147 There are no RFMOs with the competence to regulate bottom trawling in the North and Central Pacific, Central Atlantic, and Southwest Atlantic Oceans.148 All bottom trawling in these areas is therefore, by definition, unregulated (IUU) fishing.149
8. sUmmaRY – DOes INTeRNaTIONaL Law PROVIDe aDeQUaTe PROTeCTION FROm The NegaTIVe eFFeCTs
OF BOTTOm TRawLINg IN The hIgh seas?
In summary, there are many provisions in widely accepted conventions setting out duties and obligations for the conservation of living resources of the high seas and protection of the marine environment. In addition, States have a clear duty to cooperate, in part through RFMOs, in order to fulfil these duties. The enforcement of such duties is, however, variable, and largely left up to flag States, with assistance from port States, and in the case of straddling or highly migratory stocks assistance from non-flag States. Many areas of the world’s oceans still remain without RFMOs and bottom trawling is carried out in these areas without any multilateral regulation.
In spite of the duty to cooperate to conserve the living resources of the high seas and protect the marine environment, where appropriate through regional fisheries management organisations, bottom trawling is continuing virtually unabated in the world’s oceans. Many RFMOs do not have competence
to regulate bottom-trawling activities; those which do have competence have declined or been unable to adequately regulate bottom trawling to an acceptable and safe level for fish stocks and the marine environment.150
It is clear that there is room for improvement within the current system of regulation through conventions and RFMOs. Seventy per cent of the global fish stocks are either severely or completely depleted.151 Increasingly, the fishing industry is moving into areas of the high seas previously thought impractical to fish. This trend is likely to continue as fish stocks in traditional fishing grounds around the world continue to collapse.
Fish caught through bottom trawling currently make up only 0.2 per cent of the total fish caught annually and the annual revenue from bottom trawling is only approximately 0.2 per cent of the total annual revenue in the fishing industry.152 A cessation of bottom trawling would not threaten global food security nor significantly impact on livelihoods.153
By comparison, the damage caused by bottom trawling far outweighs these benefits. After only one or two trawls, entire marine ecosystems can be destroyed which have taken thousands of years to develop. Marine species are killed before scientists can even document their existence. Fish are often caught while spawning, thereby disrupting the reproductive cycle. In addition, deep-sea fish only reproduce after 20–30 years, meaning that any significant recovery of fish stocks will take decades.
Given the serious nature of the devastation to fish stocks and the marine environment, it is submitted that an immediate and enforceable moratorium on bottom trawling is the only way to protect the high seas from further destruction and overfishing as a result of bottom trawling. A moratorium would give the international community time to explore and document the high-seas marine environment and agree on effective and enforceable measures to regulate fishing in a sustainable way.
A moratorium is an agreed suspension of an activity.154 It is submitted that a moratorium is the only effective short-term measure to ensure that high-seas fish stocks do not continue to be overfished and the high-seas marine environment is protected from further devastation.
A moratorium is needed so that scientists have time to document high-seas ecosystems and the international community has time to work toward a long- term solution that does effectively conserve living resources of the high seas and protect and conserve the marine environment, especially areas of high or endemic biological diversity. The moratorium could continue until such time as the international community had explored and documented the high seas and agreed on legally enforceable measures banning or regulating bottom-trawling activities in the high seas as discussed below.
A moratorium could be declared through a United Nations General Assembly resolution. It could come into effect in six months’ time giving States sufficient time to legislate nationally to prohibit their nationals from carrying out bottom-trawling activities on the high seas.
A moratorium could be enforced using a number of different measures. States could refuse permits for offending vessels, companies or States to fish in their EEZs or in RFMO areas for any type of fish; States could require vessels registered under their flag to use Vessel Monitoring Systems for all fishing on the high seas; States could introduce legislation making it more difficult for vessels and companies to re-flag; States could close ports to offending vessels, non-complying States, and transshipments of deep-seas species caught through bottom trawling; States could close markets to deep-seas species caught through bottom trawling where there is no EEZ accreditation; States could legislate to prohibit their nationals and vessels flying their flag from bottom trawling in the high seas; and finally, States could exchange information with other States and
release names of offending vessels and non-complying States to the media.155 This article submits that the two best long-term solutions would be a total
ban on bottom trawling in all areas of the high seas, or a ban on bottom trawling in ecologically sensitive areas of the high seas which would then be designated as marine protected areas (“MPAs”). Both options could be achieved through the creation of a convention banning bottom trawling in the high seas.
It is submitted that the relative simplicity of a total ban is the preferred option as it would be easier to enforce. A list of deep-sea fish species caught through bottom trawling in the high seas could be well publicised and public awareness raised so that there would only be a limited market for such deep- sea fish that had EEZ accreditation. With a partial ban, there could be issues in finding out whether the deep-sea fish came from unprotected or protected areas of the high seas. In addition, if a partial ban were in force, there would be issues with transshipments156 and IUU fishing as vessels sought ways around the partial ban. By contrast, there is no “way around” a total ban and it would be immediately obvious if a breach of a total ban occurred as non-EEZ-accredited fish would enter the market.
Support and momentum has rapidly been growing for a moratorium in the last couple of years and it is submitted that the time has now come for the United Nations General Assembly to take the final step and declare a moratorium on all bottom-trawling activities in the high seas. Through a variety of measures and different forums, many States and scientists have signalled their support for a moratorium on bottom trawling in the high seas.
In November 2003 the United Nations General Assembly’s Resolution on Oceans and the Law of the Sea called for “urgent consideration of ways to integrate and improve, on a scientific basis, the management of risks to the marine biodiversity of seamounts, cold water reefs and certain other underwater features”.157 It also invited global and regional bodies:158
[T]o investigate urgently how to better address, on a scientific basis, including the application of precaution, the threats and risks to vulnerable and threatened marine ecosystems and biodiversity in areas beyond national jurisdiction.
As discussed in part 6 above, Decision VII/5 of the Seventh Conference of Parties to the Convention on Biological Diversity called upon the United Nations General Assembly in February 2004 to:159
As has been discussed above, the Biodiversity Convention has been ratified by 188 States and is widely accepted. This statement by parties to the Biodiversity Convention demonstrates the strong desire of the international com- munity to see the United Nations General Assembly consider a moratorium on bottom trawling and other destructive fishing practices in the high seas.
A Scientists’ Statement on Protecting the World’s Deep-sea Coral and Sponge Ecosystems was also released at the above Conference.160 The Statement was signed by 1,136 scientists and called for a United Nations General Assembly moratorium on bottom trawling in the high seas.161
In July 2004, the United Nations Open-ended Informal Consultative Process on Ocean Affairs (UNICPOLOS) proposed in its report that the United Nations General Assembly should:
Urge States, either by themselves or through regional fisheries management organizations, where these are competent to do so, to consider on a case-by- case basis and where justified on a scientific basis, including the application of precaution, the interim prohibition of destructive practices by vessels under their jurisdiction that have an adverse impact on vulnerable marine ecosystems ...
The pressure on the United Nations General Assembly increased when, on 23 September 2004, in her opening statement to the United Nations General Assembly, the Vice-President of Palau called for a moratorium on deep-sea bottom trawling.162 Many States expressed their support for the moratorium.163
Shortly thereafter, on 29 September 2004, the Foreign Minister of the Feder- ated States of Micronesia also called for a moratorium on bottom trawling in the high seas.164 In early October 2004, Costa Rica tried to have a moratorium on bottom trawling in the high seas included in the 2004 United Nations General Assembly’s Oceans and the Law of the Sea and Sustainable Fisheries Resolution.165 The following States made statements in support of such proposal: Chile on behalf of the Rio Group;166 Barbados on behalf of the Caribbean Community;167 Samoa on behalf of the Pacific Island Forum,168 and Uganda.169 The 2004 United Nations General Assembly’s Oceans and the Law of the Seas and Sustainable Fisheries Resolutions included a call to States:170
[T]o take action urgently, and consider on a case-by-case basis and on a scien- tific basis, including the application of the precautionary approach, the interim prohibition of destructive fishing practices, including bottom trawling that has adverse impacts on vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals located beyond national jurisdiction, until such time as appropriate conservation and management measures have been adopted in accordance with international law ...
In addition, the European Union agreed to implement urgent measures to protect deep-sea coral reefs around the Azores, Madeira and Canary Islands in October 2004.171 The United States banned bottom trawling in more than 370,000 square miles off the coast of the Aleutian Islands in Alaska in February 2005.172 The General Fisheries Commission for the Mediterranean unanimously
agreed to ban bottom trawling at depths lower than 1000 metres in the entire Mediterranean area in February 2005.173
Moreover, the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (“Wellington Convention”),174 which introduced a ban on driftnet fishing in the South Pacific, provides a positive precedent proving such bans work. Large-scale pelagic fishing in the 1980s was causing great concern as nets up to 40 kilometres in length were used to catch albacore.175 The nets were made of very fine mesh which also captured large amounts of bycatch.176 Overfishing was occurring, and lost or abandoned nets were causing great harm to marine life.177
Under the Wellington Convention, each member undertook to take measures, consistent with international law, such as prohibiting nationals and vessels registered under its flag from engaging in driftnet fishing activities within the area covered by the Wellington Convention,178 prohibiting transshipments, prohibiting the landing of driftnet catches within its territory, prohibiting the processing of driftnet catches in facilities under its jurisdiction, prohibiting the importation of fish caught in driftnets, and restricting port access and services to driftnet vessels.179 Thus, the Wellington Convention encouraged enforcement based on flag State and port State jurisdiction.
Gianni notes that there are two differences between the driftnet issue and the present issue of bottom trawling.180 Firstly, he states that bottom trawling is a greater threat to marine biodiversity than driftnet fishing.181 Secondly, he observes that the United Nations General Assembly has a much greater basis now in international law and policy to declare a moratorium than when it declared a moratorium on driftnet fishing in 1991.182
As can be seen from the vast numbers of States that support a moratorium on bottom trawling in the high seas, there is a large amount of support in the international community for such a measure. Moreover, the United Nations General Assembly resolution banning driftnets in the high seas and the Wellington Convention provide positive precedents. Therefore, it is submitted that the necessary international political will is present for the creation of a United Nations General Assembly resolution declaring a moratorium on bottom trawling in the high seas. The moratorium would provide an opportunity for necessary exploratory scientific work to be carried out on the high seas and for the international community to investigate ways to ensure the marine protection of areas of biological diversity and the conservation of the living resources of the high seas.
The facts surrounding the deep-sea areas of the high seas are impressive. It has been estimated that between 500,000 and 10 million species inhabit the deep seas of the high seas, most of which have yet to be discovered.183 Ninety- eight per cent of the ocean’s species live in, on, or just above the seabed, and at least 15 per cent of those species are thought to be endemic.184 Seamounts are often rich in endemic biological diversity.185 It has been estimated that there are between 30,000 and 100,000 seamounts worldwide.186 Corals, sponges and similar species often grow on seamounts and provide habitats for other species, spawning areas, and protection for young fish.187 Coral forests have been documented that are 5,000–8,500 years old and up to 35 metres in height.188
When massive trawl nets with huge steel doors and rollers that roll over the ocean floor are introduced into this kind of pristine and vulnerable environment, the result is devastation. Fish are often caught while spawning, thus preventing reproduction, habitats are demolished, biological diversity is destroyed, and endemic species risk extinction.
The United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement, and the Convention on Biological Diversity all contain
duties and obligations for member States to conserve the living resources of the high seas and protect the marine environment. However, compliance with these provisions is lacking and the perennial problem of enforcement in international law continues to be a very real issue. Flag State, non-flag State, and port State jurisdiction all have very positive aspects, and used together they have the potential to be relatively effective in enforcing compliance with fisheries conservation measures. Flags of convenience and IUU fishing are, however, serious issues that the international community must continue to address until an effective solution is found. Regional fisheries management organisations exist in some parts of the high seas only, and not all have the competence to address the issue of bottom trawling. In the areas where there are no RFMOs, fishing is effectively unregulated and subject only to flag State jurisdiction.
It is due to the above weaknesses in the existing system of conventions and a lack of effective enforcement of legal duties and obligations that a moratorium on all bottom-trawling activities in the high seas is urgently required in order to conserve the living resources of the high seas and protect the magnificent deep- sea marine environment from further destruction. Many States have already stated their support for such a measure and there is a growing momentum for such a resolution to be declared by the United Nations General Assembly. A moratorium could be effective within six months and enforced through a number of creative measures. A moratorium would give the scientific community time to explore and document the deep-seas areas of the high seas and would also give the international community time to negotiate an effective long-term solution to the problem of bottom trawling.
This article suggests that the best long-term solution would be a conven- tion permanently banning all bottom trawling in the high seas. However, if that were not politically possible, then a partial ban is suggested in areas that could be set aside as marine protected areas. A convention would only be binding on States who had ratified it, but given the current high level of State support for a moratorium and that 95 per cent of bottom-trawling activities are carried out by only eleven States, it is suggested that such a convention would be accepted by most States. Enforcement of such a convention would, practically speaking, be easier than with the above-mentioned conventions as it would relate to a specific method of fishing and to specific species which dwell in, on, or just above the high-seas seabed. Enforcement of a total ban on bottom trawling in the high seas would also be easier to enforce than a partial ban, as a total ban would mean that any of those fish species sold without a guarantee that they were from an EEZ could not be sold through the markets. Coupled with increased awareness through media publicity of the ban, it is submitted that this would result in a successful enforcement of the ban. This is especially the case as the eleven States which currently bottom trawl are otherwise considered to be reasonably responsible States and would have much political goodwill and
reputation to lose by either not ratifying or breaching a convention banning bottom trawling.
This article examined two questions of crucial importance. The first question was whether international law provides adequate protection from the negative effects of bottom trawling in the high seas. The answer to this question is negative. The second question was whether, if international law does not provide adequate protection, there were other measures that could be taken to provide the much-needed protection of the marine environment and conservation of the living resources of the high seas. A short-term moratorium followed by a convention banning bottom trawling in the high seas are the most appropriate and effective solutions, and the moratorium, at least, has wide support from States. It remains to be seen, however, whether the United Nations General Assembly picks up the challenge and resolves to declare a moratorium in the near future.
This article has raised several matters that now warrant further research. Firstly, research needs to be carried out into the possible content of a conven- tion banning bottom trawling on the high seas. Secondly, research needs to be conducted into how to ensure that a new convention is effective and enforceable without interfering with States’ obligations regarding free trade and restrictions on trade barriers under World Trade Organization arrangements.