New Zealand Journal of Environmental Law
Last Updated: 30 January 2023
The Implementation of the Precautionary Principle into International Fishery Law: A Move towards “Green” Fisheries
For us the precautionary principle is more than a semantic or theo- retical exercise. It is an ecological and moral imperative. We trust the world understands our concerns by now. We do not have the luxury of waiting for conclusive proof, as some have suggested in the past. The proof, we fear, will kill us.1
1.1 Brief History of Environmental Protection
In his recently published book, The Art and Craft of International Environmental Law, Dan Bodansky outlines the development which environmental protection and International Environmental Law (IEL) have undergone in the 20th century:2
First, a conservationist stage emerged in the late 19th century, focusing mainly on preservation and conservation of nature. This would mainly happen by defining and protecting natural reserves and parks. Parts of nature were set
*Thomas Ebben studied law at Albert LudwigsUniversity in Freiburg and completed the First State Examination in 2007. Afterwards he worked as a legal clerk at the Higher Regional Court in Koblenz, also working in Bonn, Cologne and Auckland, and completing the Second State Examination in 2009. He has also completed a Master’s degree at The University of Auckland specialising in Environmental Law. Today he works for the German Federal Ministry for the Environment in the field of International Cooperation on Biodiversity. <thomasebben@ gmail.com>.
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aside from human influence. Here the focus of interest was rather narrow, utilitarian and anthropocentric. For instance, early treaties on maritime con servation focused on the importance of protecting fishstocks for the sake of the fishing industry. Environmental protection focused on direct threats such as hunting of wildlife. Indirect threats — such as loss of habitats due to pollution
— were not recognised. Furthermore, conventions and treaties were adopted on an ad hoc basis with little foresight.
After the Second World War, the approach to environmental protection started to change. From the 1960s onwards, environmental protection would concentrate on preventing pollution. The focus was now on much broader issues, such as pollution, population growth, and the like. The European Commission (EC) published its first environmental directive in 1967 and its first environmental action plan in 1973. This stage climaxed in the 1972 Stockholm Conference and gave birth to the United Nations Environmental Programme (UNEP) and numerous multilateral treaties attempting to prevent pollution of air and water.3 The third phase began in the 1980s and was shaped by the idea of sustainable development. A holistic approach to environmental protection prevailed. Milestones were the 1987 Brundtland Report, the 1992 Earth Summit
in Rio de Janeiro, and the 2002 Johannesburg Summit.4
This third phase was marked by the emergence of many legal principles that developed through the various conferences and legal documents and were intended to guide environmental protection.5 One of the most prominent and noteworthy examples, and the topic of this article, is the precautionary principle (PP). It has featured prominently in the 1992 Rio Declaration and the corresponding action plan Agenda 21. Since then, it has been incorporated into various international treaties, including treaties on maritime pollution and fisheries. Despite its prominence, the PP has always been highly controversial among governments and legal scholars. Not only has it been highly unclear how the PP should be implemented in treaties and what its implications in a concrete situation would be, but its basic statement of the primacy of prudence before action has been criticised as being overcautious and dangerous itself.6
1.2 Course of the Article
In dealing with this debate, this article will follow three steps. First, the PP itself will be analysed. To this end, some selected opinions on the principle will be presented. Due to the immense amount of literature that there is on the PP, it
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will not be possible to analyse every published opinion. Instead, some opinions are selected which represent the scope of opinions on the PP. It will become clear what the distinctive features of the PP are and to what extent these are debated.
Second, the article will deal with the issue of international fisheries. It will briefly present current environmental problems surrounding international fisheries. Moreover, it will examine the legal framework that has been set up to meet these challenges, concentrating on the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Third, the article will aim to bring these two developments together. It aims to show how and to what extent the PP has been implemented in international treaties on fisheries. Among the countless number of treaties there are, it will focus on three treaties from different times and with different regional and factual backgrounds: the 1952 North Pacific Treaty, the 1982 Commission for the Conservation of Antarctic Marine Living Resources, and the 1995 UN Agreement on Straddling and Highly Migratory Fish Stocks. These treaties were chosen because they were widely perceived to be progressive and ahead of their respective time. The article then aims to find out whether the practical experiences encapsulated in these treaties can make a contribution to the ongoing legal argument on the PP and what may be learned from them for the future handling of the PP.
In doing so the article is going to focus on strictly legal aspects of the implementation of the PP, leaving aside technical aspects, even though they also play an important part in that process. These technical matters are better dealt with by the relevant experts.
2. THE PRECAUTIONARY PRINCIPLE
2.1 The History of the Precautionary Principle
The concept of precaution as a legal principle originated from the German Vorsorgegebot, passed by the German Parliament in 1976. Shortly afterwards it constituted a fundamental principle of German environmental policy and law.7 Its integration into the system of emerging IEL occurred due to the failure
of the classical system of environmental regulation which prevailed until the 1970s, according to which, any action supposed to protect the environment
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had to be justified by scientific data. In other words, clear scientific evidence was made a prerequisite for environmental action.8 The concept behind this is the socalled “assimilative capacity approach” which seeks to determine the carrying capacity of ecosystems. It allows activities up to the limits of that capacity.9 For example, the 1974 Paris Convention for the Prevention of Marine Pollution from LandBased Sources required regulation “if scientific evidence has established that a serious hazard may be created ... and if urgent action is necessary”.10 Thus, environmental damage should only be prevented if it can be clearly predicted. Lack of scientific data is a reason to postpone action.11
In the 1980s and 1990s the limitations and shortcomings of this approach were felt: major impacts were not predicted by scientists, scientific proof came too late for effective action, and the complexity of the Earth’s interconnected ecosystems made clear predictions and undisputed proof hard, if not impossible, to achieve.12 Environmental protection was no longer limited to preventing assessable, calculable and certain risks, but rather dealt with anticipating risks suggested by possibility, plausibility and probability. Decisionmaking processes now had to take all risks into account, whatever their degree of certainty.13 In 1992 the PP was a major point of discussion at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro and became a part of the subsequent Rio Declaration on Environment and Development.14 Since the 1990s, the PP has found widespread application at an international level, in EC legislation and in national legislation.15
By leaving behind the realm of rational certainty, precaution gave rise to controversy and its practical application led to numerous conflicts.16
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2.2 The Current Debate about the Precautionary Principle
Today the PP and its meaning are highly contentious. Not even its status as a principle of law is clear: some refer to it as a mere approach. For this reason, some major opinions articulated about the PP shall be presented below.
Kiss and Shelton recognise the PP as one of the most important statements in the Rio Declaration.17 They consider it to be the most developed form of prevention and the general basis of environmental protection.18 They claim it is applicable when the consequences of nonaction are particularly serious, thus dealing with the problems of irreversibility and scientific uncertainty.19 They conclude that the principle enhances the role of scientists in the protection of the environment and they demand a general environmental education of the public and those who make the formal decisions.20
The problem of scientific disagreement is stressed by Philippe Sands.21 He outlines the widespread application of the principle since the 1980s and the support which it has achieved in the international community, particularly in relation to the protection of the marine environment.22 Yet he stresses that its core meaning and status in international law are still not clear since there is no uniform understanding among states and other members of the international community.23 He outlines three ways of understanding the principle. These range from merely demanding states to act with foresight when taking decisions, to a more radical understanding which would shift the burden of proof to the person who wishes to carry out an activity.24 He argues that the principle is evolving and developing and the consequences of its application in any potential situation depend on the circumstances of each case.25
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The Dutch legal scholar Arie Trouwborst has published extensively on the PP. In his book Precautionary Rights and Duties of States 26 he closely analyses the PP and deals with its definition and implementation. Trouwborst considers the PP to have become part of customary international law and he examines the various shapes it has taken. By comparing its appearance in numerous inter national treaties, agreements, and the like, he aims to detect common patterns that would ultimately constitute a formula that could be considered binding under customary international law.
He claims that the principle consists of three parts: threat of environmental harm, uncertainty about it, and the action that arises from it. From this starting point he analyses each of these elements in turn.
(i) Threat of environmental harm
Threat of environmental harm is considered to be the first element of the principle.27 Trouwborst distinguishes “harm” from pure “change” by defining the former to be change that results in an adverse or negative effect.28 He then addresses the level of environmental harm that triggers the PP and claims that there ought to be a threshold of “significant harm”.29 “Significant” is typically indicated by the breach of internationally agreed quality standards.30 The PP is understood to be triggered by significant harm only.31 Another significant threshold is detected in “serious or irreversible harm”.32 “Serious” harm is indicated by geographic dispersion and the duration or persistence of environmental harm.33 “Irreversible” harm is understood to be irreversible over a reasonable time34 or virtually irreversible.35 Concluding this, Trouwborst claims that the PP under customary international law imposes a duty on states to act when there is a threat of serious or irreversible harm, gives states a right to act when there is a threat of significant harm, and is not applicable at all when there is merely a threat of insignificant harm or pure change.36
26 Arie Trouwborst Precautionary Rights and Duties of States (Martinus Nijhoff, Leiden, 2006).
27 Ibid, at 37–66.
28 Ibid, at 39–43.
29 Ibid, at 44–47.
30 Ibid, at 50–52.
31 Ibid, at 47–50.
32 Ibid, at 53–62.
33 Ibid, at 56–57.
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(ii) Uncertainty of threat of environmental harm
As for the notion of uncertainty, Trouwborst differentiates between epis temological and ontological uncertainty. The former corresponds to a lack of factual knowledge,37 the latter to a lack of understanding of known facts due to complexity and variability.38 The PP applies to both, yet differentiating between them is meaningful as it shows that absolute knowledge is impossible to obtain and uncertainty is inescapable. Epistemological uncertainty can be overcome by further research, ontological uncertainty cannot.39 Uncertainty is then considered from a different angle, differentiating between: quantifiable risk where both gravity and probability of the harm are known;40 uncertainty proper where the gravity is known, but not the certainty;41 and ignorance, assumed where both gravity and probability of harm are unknown.42 As the PP has been applied to address all of these degrees of uncertainty,43 the PP should be considered to cover all of them — thus covering all kinds of uncertainty. As for the level of uncertainty, Trouwborst argues that the PP also applies in cases of certain threats. The reason for its existence is not the presence of uncertainty but of threat. Therefore, states do not apply it because of uncertainty but in spite of uncertainty.44 As for a threshold of proof, Trouwborst argues that there is no minimum threshold but only a maximum threshold — otherwise the PP would have to be applied to nearly any situation and would thus become unworkable.45 The PP should apply where there are reasonable grounds for concern that harm may occur. Mere probability is not sufficient, scientific proof is not required.46
(iii) Action arising from threat of environmental harm
Where there are reasonable grounds for concern of significant or even serious harm to the environment, the PP requires states to take action. Trouwborst concludes that the PP does not prescribe any specific measures in the majority of cases. Rather, “any measure can be a precautionary measure”.47 Nevertheless, he lists a range of measures that will typically be considered, including bans,48
37 Ibid, at 72–74.
38 Ibid, at 74–82.
39 Ibid, at 82.
40 Ibid, at 86–87.
41 Ibid, at 87.
42 Ibid, at 87–88.
43 Ibid, at 89–90.
44 Ibid, at 92–96.
45 Ibid, at 99–105.
46 Ibid, at 105–111.
47 Ibid, at 179–182.
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moratoriums, safety margins,49 clean production methods,50 research,51 and the like. These should not replace any risks by another risk of equal or greater dimension,52 should be reviewed regularly, and ought to stay in place as long as the risk remains.53
Trouwborst does not assume a shift of burden of proof and concludes that this onus remains with the state, whereas the threshold is significantly lowered by the implications of the PP, as seen above.54
In general, Trouwborst analyses the PP and the shape in which it has become part of customary international law comprehensively, citing a significant number of international treaties, agreements, and the like. He thereby reaches precise conclusions which help to sharpen the contours of the PP and give it “legal teeth”. The shape in which it has been applied and the methods by which it is implemented in praxis will be analysed in part 3 of this article.
Dan Bodansky deals with the PP by arguing that there are essentially three versions of it.55 He admits that there is currently significant confusion about its core meaning and not just about the implications it has when applied to a concrete situation.56 He argues that the three distinct versions of the principle reflect very different legal functions.
In its first, most basic version, the PP merely functions as a reason not to postpone action due to scientific uncertainty.57 This reflects the failure of the assimilative capacity approach, as described above, and represents the rejection of the belief that environmental action must wait for scientific proof.58 He stresses that in this weak formulation the PP does not require states to take environmental action. This action must come from somewhere else — if it takes place at all.59
In its second, somewhat stronger, version, the PP functions as a licence to
49 Ibid, at 169–170.
50 Ibid, at 170–174.
51 Ibid, at 174–177.
52 Ibid, at 184–188.
53 Ibid, at 188–190.
54 Ibid, at 219–226.
57 Ibid, at 383–384.
58 Ibid, at 383.
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act.60 This is especially meaningful in the context of international trade, where environmental action might be questionable as disguised barriers of trade.61
In its strongest version the PP may even create, according to Bodansky, a duty to act.62 The action that arises may then comprise preventive action or alternatively shift the burden of proof onto the proponent of an activity.63
Bodansky also considers the threshold of risk which must be crossed before precautionary action is warranted (“the trigger”).64 He distinguishes three elements of this trigger: severity of the potential harm, likelihood of that harm, and the source of the harm.65 Most important in this context is the severity of the harm. Usually a certain and significant degree or magnitude is required, including persistence, toxicity, and liability to bioaccumulate.66 He identifies “serious or irreversible harm” (as used in Principle 15 of the Rio Declaration) to be the most widely used trigger.
Bodansky concludes that there is no consensus about the meaning of precautionary action. Definitions and uses tend to differ along nearly every aspect of the principle. He argues that the PP is in disarray and that it will require hard thinking about what it means to be cautious in a particular context.67
An even more critical attitude towards the PP has recently been taken by Jonathan Wiener.68 Wiener stresses the function of the PP as a strategy for addressing risk which has been pivotal for the survival of humanity over millennia.69 In this context, he identifies the PP to be the most prominent and controversial development in IEL in the last two decades.70 He argues that there may be widespread agreement of precaution as a strategy towards addressing uncertainty, yet there is no single agreed statement or understanding of the PP as a principle.71 He argues that the versions of the PP differ on several key
63 Ibid, at 390–391.
64 Ibid, at 386–389.
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issues and identifies, similarly to Bodansky, three main versions of the PP in international legislation and treaties.72
In its most basic version the PP implies that uncertainty does not justify inaction. It permits action in the absence of complete evidence. This version was similarly identified by Bodansky and is an obvious reaction to the above mentioned failure of the assimilative capacity approach. Wiener argues that the problem with this version of the PP is the failure of stating what action should be taken. It permits action without compelling it.73
A second version of the PP is described as “uncertainty justifies action”.74 This is again similar to Bodansky’s approach. Wiener argues that this version
— while calling for proactive measures — still does not address the question of what measure actually should be taken. He refers to this as the “real” question.75 A third version of the principle is described as shifting the burden of proof.76
In this respect Wiener differs significantly from Bodansky, who had identified the third version of the PP as a duty to act and had identified shifting the burden of proof to be a mere consequence of the application. Wiener argues that this third version fundamentally forbids an action unless the standard of proof is met. He argues that this is useful as it imposes the burden of proof on the party that is best able to generate the required information. He believes, though, that this version of the PP may invite overregulation.77
He further argues that the problem with the PP is that it requires precaution in all cases, whereas in fact it is only desirable in some cases.78 He argues that uncertainty may also be addressed in standard decision analyses, without dealing with the PP. This would involve a more flexible manner of decision making and would thus be preferable.79 Wiener then argues against the notion of “irreversibility” often incorporated in the PP, as, for example, in Principle 15 of the Rio Declaration. He argues that this is a problematic basis for precaution since, in theory, every action and its effects are irreversible: “Risks neglected may prove irreversible, but ... precautionary regulations are also irreversible opportunities foregone”.80
His main point of criticism against the PP is that precaution itself induces risks: “Measures to reduce one uncertain irreversible catastrophic risk might induce another.”81 The principle should not call for regulations that might
72 Ibid, at 604–612.
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yield the dangers the PP seeks to avoid. In endeffect the principle could “swallow itself prohibiting both the risky activity and the risky regulation of this activity”.82 Wiener stresses the perils that may occur due to attention to insignificant risks (“false positives”): “opportunities foregone, innovations rejected ... public cynicism about future warnings ... and new countervailing risks”.83 Since the world is an interconnected web of risks, all expected consequences — including increased countervailing risks — have to be taken into account.84 The PP itself may be a risky activity. Wiener identifies a need “to exercise precaution against excessive precaution”.85 Ultimately, Wiener argues for a more moderate approach to the PP than that articulated today.86 He sees two paths into the future. One is marked by what he calls “precautionary particularity”, meaning that different states continue to selectively apply the PP to different risks as serves their needs best. The second, in contrast, proposes the emergence of a new body of global administrative law to work on an international consensus and a reasonable middle ground based on analyses of consequences. This would have to include full portfolio analyses of risks in diverse domains, both restraining from “unwarranted precaution and prompting desirable precaution”.87
It is obvious that the understanding of the PP is highly disputed. The opinions presented only represent a fraction of the literature which has been published about it. They have been chosen because they illustrate the main points of discussion and the main concerns about the PP. The most distinct poles in the discussion are the opinions of Trouwborst on the one hand and Wiener on the other.
Trouwborst thoroughly analyses how the PP is currently being incorporated and applied, and how common patterns can be summed up for a single, workable formula which could then be assumed to be part of compulsory customary international law, thus obliging the compliance of all states. He clearly accepts the PP as an integral part of IEL and necessary for effective environmental protection.
Wiener, on the other hand, aims to show the limitations of the PP. He argues from a perspective which stresses the risks of being overcautious. He claims that, due to the interconnectedness of the Earth’s ecological, economic and
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social systems, no clear choices can be made with respect to avoiding risks. Perceived like this, the PP would remain rather meaningless. As a legal principle it will only be powerful if it has a clear message and distinctive directions can be obtained from its application.
Both Trouwborst and Wiener agree that the PP does not automatically trigger one specific action. Trouwborst expresses this by claiming that every action can be a precautionary action. He understands this to be an integral part of the PP. Wiener agrees, finding that no specific measure is demanded by the PP. Unlike Trouwborst, however, he considers this to be a major shortcoming of the PP. Thus, in this respect, Wiener and Trouwborst agree in their findings, but disagree in the evaluation of those findings.
This article aims to contribute to the discussion surrounding the PP by examining its implementation in the current law of the sea. The PP has been implemented in several legal documents concerning maritime law, both on fishery and on maritime pollution. This process has been going on for decades. By examining how the PP has been implemented — both legally and practically
— it should become possible to determine whether this implementation supports either Wiener’s or Trouwborst’s approach towards the PP, and to provide arguments for one of these positions.
3. INTERNATIONAL FISHERIES MANAGEMENT
This part will now briefly outline the development of international fisheries law, stressing recent trends that implement key elements of current IEL. Attention will be given to the historical development, current problems and trends, and the role of international law in solving these problems.
3.1 Historical Development
Fishing is one of the oldest ways of utilising the seas. The Food and Agriculture Organization of the United Nations (FAO) publishes data on the estimated amount of fishing on its webpage.88 The estimated annual worldwide catch for 1950 was 16.3 million tons, and it has grown steadily: in 1960 the catch was
30.1 million tons; in 1970, 54.4 million tons; in 1980, 58.3 million tons; in 1990, 87 million tons; in 1995, 102.2 million tons; in 2000, 107.1 million tons; and in 2008 the total catch amounted to 114.6 million tons. Thus, there has been a steady, sharp increase since the Second World War. Fishing has proliferated within the last 50 years. This is due to technical improvements, such as larger
88 Food and Agriculture Organization of the United Nations, Fisheries and Aquaculture Department <www.fao.org/fishery>.
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and stronger nets, greater investment in the fishing industries, especially in developing countries, and of course an evergrowing population.89 While the most obvious and common use for fish is food for human consumption, approximately 30 per cent of the annual catch is used for other purposes, such as the production of fishmeal, fish oil, or as fertiliser or animal feed.90
Among the most common characteristics of fish stocks are the following. Most fish stocks are highly migratory and bridge significant distances crossing several manmade boundaries in their life cycles. Fish stocks do not exist in isolation but are interlinked and interdependent in highly complicated ways that tend to defy human understanding.91 This may include linkages in the food chain or simply in the area of living. As for the legal situation, fish are in principle a common resource — property rights only arise when fish are caught and brought into the possession of one specific fisherman. In principle, fishing is open to everyone. Thus, the “tragedy of the commons” applies to fishing.92 There is a tendency for fish stocks to be fished over a sustainable level, for more fishermen to fish than is economically and ecologically justified, and for competition and conflict between different groups of fishermen.93 Without regulation, there is no incentive to abstain from immediate use. In consequence, an unregulated fishery typically leads to significant overfishing.94
Until the middle of the 1970s, there were only narrow zones of coastal state authority. Consequently, the role of international cooperation in fisheries management, through a score of international fishery commissions, was of paramount importance. In the 1970s the Exclusive Economic Zones (EEZs) of 200 nautical miles, respectively the Exclusive Fishery Zones (EFZs), emerged and changed the situation. Coastal state access grew significantly, reducing the role of international fishery commissions.95
3.2 The Current Situation
Even though the oceans are by far the world’s largest ecosystem, they are also its least understood. Uncertainty abounds as the necessity for their protection becomes more evident. This does not only include the protection of large
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marine mammals, which has long absorbed most of the attention given to the problem of overfishing. The protection of maritime habitats, spawning grounds, the immense biodiversity found in coral reefs, seamounts and near coastal areas has long been neglected.96 Even though the overwhelming majority of fishing takes place in the vicinity of the coasts,97 highsea species such as sharks, rays, turtles, and tuna have also suffered immense decline.98 Some newly adopted fishing techniques have proven to be especially destructive. These include: bottom trawling, which damages coral reefs and other submarine structures; nylon driftnets, which do not differentiate between target species and lead to high bycatches, including sea mammals; and longlinefishing, which has proven to fatally attract seabirds.99
Due to the interconnectedness of marine life, these developments endanger not only targeted species but also species that depend on them. This deeply compromises the ecological balances on which humanity depends.
The results can best be seen in the twoyearly report The State of World Fisheries and Aquaculture (SOFIA) by the FAO.100 According to the 2010 report,101 53 per cent of fish stocks are fully exploited, 12 per cent are moderately exploited, 28 per cent are overexploited, 3 per cent are depleted, and only 1 per cent is currently recovering from depletion. Thus, 31 per cent of the world’s fish stocks are either overexploited or depleted.
Fishing, as presently perceived in many regions, must be considered unsustainable development at its worst. These wellknown facts make clear that there is an urgent need for legal action and protection.
3.3 Role of International Law
The role of international law in regulating fishery has dramatically changed within the last decades.
Originally, fishing was unregulated due to the free seas/common property approach within which highseas resources were addressed. For centuries, major maritime states endeavoured, successfully, to maximise the area of the high
(3rd ed, Oxford University Press, Oxford, 2009) at 702.
100 The State of World Fisheries and Aquaculture (Food and Agriculture Organization of the United Nations, Rome, 2010) <www.fao.org/sof/sofia>.
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seas and minimise the breadth of the territorial sea. The latter was consistently accepted to be three nautical miles until the 1960s.102 A need for conservation of threatened species was first legally accepted in the Bering Sea Fur Seal Arbitration.103 In 1882 the first international multilateral treaty on international fishery was signed: the Convention on North Sea Overfishing.104 The main problem, which keeps recurring to this day, is epitomised in the “tragedy of the commons”: achieving the necessary regulation in an international context, under the rule of a system of public international law that primarily supports the sovereignty of states, has turned out to be nearly impossible. These problems have never been resolved and remain acute.105 It is in this context that the formation of regional fishery commissions and the gradual enlargement of their power must be seen. These commissions provide a forum for riparian states and other fishing nations to discuss steps necessary to establish a lasting balance between allowable catch and regrowth of the stocks. Also, they may appropriately consider economic, political and social reasons for decision making that take into account new scientific research. Most importantly, they also have the power to enforce their rules.106 Originally, fishery treaties primarily dealt with establishing national quotas for fish stocks: conservation of the marine environment was a sideeffect and not the main concern.
Today, the 1982 UN Convention on the Law of the Sea provides the framework for fisheries law. By setting up a 200nauticalmile EEZ,107 UNCLOS aims to address the freeaccess problems discussed above.108 It gives states the sovereign rights for exploring, exploiting, conserving and managing their resources in the EEZ.109 Effectively, 90 per cent of the world fisheries are under exclusive state control, exercised by riparian coastal states and thus removed from a highseas commonproperty regime. UNCLOS addresses the need for conservation of fish stocks by obliging coastal states to determine the total
106 Ibid, at 710–711.
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allowable catch (TAC) of the living resources in their EEZ.110 To ensure that fish stocks are not endangered by overexploitation111 coastal states have to take into account the maximum sustainable yield (MSY) with reference to economic, social and ecological aspects.112 Aiming for the optimum utilisation of living resources,113 coastal states are obliged to give other states access to the surplus of the TAC.114 The Convention also deals with the phenomena of straddling and highly migratory fish stocks, that is, fish stocks that frequently straddle between the EEZs of more than one state and/or the high seas.115 Such stocks can obviously not be effectively managed by one state alone. UNCLOS recognises a need for international cooperation by obliging concerned states to seek agreement upon the measures necessary for the conservation of these stocks.116
As for the high seas, UNCLOS does recognise the freedom of fishing.117 It does not limit access or set up measures for conservation, but only obliges states to exercise their rights with due regard for the interests of other states.118 Obligations to seek agreements are set up in art 63(2). Article 118 obliges states to cooperate with other states for the conservation of the living resources in the high seas. States are thus required to cooperate in establishing regional and subregional fisheries organisations.
These provisions of UNCLOS are generally perceived to have some short comings: they do not clarify the rights of coastal states if agreements are not possible; and they do not address the challenges of ecosystem protection and aspects of biodiversity — for instance, fishery issues are discussed separately from maritime pollution issues.119
Nevertheless, the provisions provide a comprehensive and generally accepted approach towards managing maritime resources. Because of their obvious generality, they do require further specification. This has been achieved by numerous regional and international treaties dealing with fisheries. For the purpose of this article, three of these shall be analysed to see how they manage to implement the PP into the framework provided by UNCLOS and public international law in general.
117 Ibid, arts 87(1)(e) and 116–119.
118 Ibid, art 87(2).
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4. IMPLEMENTATION OF THE PRECAUTIONARY PRINCIPLE IN
INTERNATIONAL FISHERIES MANAGEMENT
4.1 Scope and Expectations
So far, this article has examined the history and the current debate on the PP and the history and the current setup of international fisheries law. This part of the article is dedicated to bringing these two parts together. It aims to show how and to what extent the PP has been implemented into international maritime treaties on fisheries. In doing so it should be possible to see what contribution the PP can actually make in setting up a legal regime on maritime protection. It should help to clarify whether or not the PP has a significant role to play and can actually make a difference in environmental protection. Since law has merely a serving function, the questions to answer come back to the following: To what extent can the implementation of the PP help to conserve fish stocks? What palpable solution does it offer to save nature? What problems are there, that could not be solved otherwise? If it is possible to answer these questions after examining the treaties, this would make a good argument for a stronger role of the PP in international law and against the sceptical position held by Wiener.
4.2 1952 North Pacific Treaty
In a recently published article, David Freestone traces the history of precau tionary thinking back to the 1952 International Convention for High Seas Fisheries of the North Pacific Ocean (CHFNPO).120 This treaty, signed between the United States, Canada and Japan in 1952, established a system of maritime conservation based on the socalled “principle of abstention”. The treaty set up a commission121 which was to continuously monitor the size of fish stocks.122 Article IV(1)(b) of the CHFNPO provides specific conditions under which a fish stock can be added to the annex of the Convention.
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Among these is the position that “[e]vidence based upon scientific research indicates that more intensive exploitation of the stock will not provide a substantial increase in yield which can be sustained year after year”.123
Article V(2) requires that the parties “abstain from fishing such stock and the Party or Parties participating in the fishing of such stock shall continue to carry out necessary conservation measures”.
In other words, the Commission set in place by the CHFNPO had the power to require the participating states to abstain from the fishing of such stocks that were already being fished to the level of the MSY. By adding a stock to the referred annex, other parties were required to abstain from further fishing of the solabelled stocks. Koers concludes that the CHFNPO was one of the few international fisheries bodies which actually had the power to monitor designated stocks, effectively decide on conservation measures, and allocate legally binding TACs for them.124
The abstention principle included in the CHFNPO may be considered a very early example of precautionary thinking: Only the removal of a stock from the annex would allow other parties to engage in fishing these stocks.125 If a stock was to be taken from the annex — and thus from abstention — there had to be scientific proof that this specific stock no longer met the criteria.126 In other words, the burden of proof was on the party that aimed to engage in fishing. Thus, in cases of doubt, conservation would prevail. In the absence of scientific proof, no further exploitation would be possible.
Insofar as it shifts the burden of proof, the system of the CHFNPO would have to be considered the strongest version of the PP as categorised by Bodansky.127 It would even have to be considered stronger than the version that was identified by Trouwborst to be part of customary international law128 since it includes a genuine shift of the burden of proof.
In spite of these progressive notions, the abstention principle has not achieved widespread acceptance. Its main flaw becomes evident after a closer look at the articles discussed above: the duty to abstain from fishing certain stocks is imposed on parties that were not currently engaged in fishing. Instead, firstcomers have a special claim to stocks that were already harvested at MSY.129
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These flaws are addressed by later treaties which set up fixed quotas for fish stocks and member states. One of these is a regional treaty for Antarctic maritime resources which was one of the first to implement not only a precautionary approach but also a highly acclaimed, holistic system for the management of maritime resources as part of a larger ecosystem. This treaty shall now be analysed.
4.3 Commission for the Conservation of Antarctic Marine Living Resources
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) is one of a growing number of regional fisheries management organisations (RFMOs) whose task is to regulate fisheries in designated areas of the oceans in accordance with the abovementioned requirements of UNCLOS on regional cooperation.130 CCAMLR is part of the Antarctic Treaty System, which entered into force in 1982 and applies to the Antarctic marine living resources of the area south of 60 degrees latitude.131 Membership of the CCAMLR is exclusive to founding parties and the states that actively engage in fishing in the designated treaty area.132
The CCAMLR was originally founded to address the decline of krill, which is a key component of the food chain in the treaty area. Thus, the objective of the CCAMLR is the conservation of Antarctic marine living resources,133 where “conservation” includes rational use.134 The effect of krill fishing was of paramount concern as it was a prerequisite for the recovery of the whale and seal population that was taken close to extinction.135 Krill exploitation had risen to a peak of 528,201 tonnes by 1982 and has dropped to 80–100,000 tonnes today, a level deemed to be well under the precautionary limit.136
The CCAMLR is generally considered to be a very progressive fisheries organisation due to the implementation of an ecosystem approach and a
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precautionary approach.137 For this reason it shall be further considered and analysed, briefly introducing the ecosystem approach and then focusing on the implementation of the PP.
The ecosystem approach is aptly expressed in art II(3)(b) of the CCAMLR. According to this article, “the maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources” is a principle of conservation. The application of this approach has focused on the reduction of bycatch of seabirds and mammals138 and — more importantly — on the recognition of the importance of krill to the Antarctic food chain.139 Harvest rates for krill are set up considering its importance to predators. It is considered to be a more holistic and integrated model of conservation management and a paradigm shift from older treaties that focused on singlespecies management.140 An important part of the ecosystem approach is the incorporation of precautionary thinking which shall now be analysed.
The PP is considered to be a central part of the ecosystem approach even though the CCAMLR does not include an explicit formulation of the PP.141 Uncertainties in managing the fish stocks arose from natural variations in stock abundance and statistical error in stock assessment, uncertainty in estimates of model parameters, incomplete historical catch records, and imprecise submission of recent data.142
A legal approach to dealing with uncertainties was included in art II(3)(c) of the CCAMLR, which states that harvesting shall be conducted in accordance with the following principles of conservation:
Prevention of changes or minimisation of the risk of changes in the maritime ecosystem, which are not potentially reversible over two or three decades, taking into account the state of available knowledge of the direct and indirect impact of harvesting, the effect of the introduction of alien species, the
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effects of associated activities on the marine ecosystem and of the effects of environmental changes, with the aim of making possible the sustained conservation of Antarctic marine living resources.
The CCAMLR applies the precautionary approach in two ways which are outlined in its own publication on management in the Antarctic published in 2001.143 Its approach to precaution is explained as follows:144
CCAMLR collects the data it can, then weighs up the extent and effect of the uncertainties and gaps in such data before making a management decision. The approach aims to minimise the risk of longterm adverse effects rather than delaying decisions until all necessary data are available.
This shows the thinking that was above described to be a core element of the PP: decisions are not delayed until all necessary data is available. Instead, uncertainties are taken into account and weighed in the decisionmaking process, aiming for a minimisation of longterm adverse effects. In other words, action is taken in spite of uncertainty to avert a threat to the protected ecosystem. This is the classical role of the PP as described above.
Another obvious approach of applying the PP takes into account the high dependency of the Antarctic ecosystem on krill: CCAMLR sets up conservative catch limits for krill to preserve the ecological sustainability of all species concerned. In cases of uncertainties surrounding the amount of krill that can be fished sustainably, the application of the PP argues for a lower limit.145
Managing the ecosystems largely depends on available data. This includes the intensity and areas of fishing undertaken,146 the size and numbers of swarms,147 the age composition of harvested animals and rate of growth,148 area and time of breeding,149 natural and fishinginduced mortality,150 and the like. The CCAMLR argues that all these data can be obtained, but only approximately, always surrounded by uncertainty. These uncertainties cannot be ignored but are taken into account in the formulation of riskaverse action by choosing conservative management action. This is considered a key feature in applying the PP.151
148 Ibid, at 10–11.
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A second field for the application of the precautionary approach is the management of new and exploratory fisheries. Ideally, newly discovered fish stocks should only be exploited when all necessary information in the abovedescribed fields is accessible. This allows scientific comparison of the status of the stock before and after being fished and management of the stock accordingly on the basis of some desired status for the exploited stock. Still, in the past, newly discovered stocks were often exploited well before the necessary informationgathering could be achieved.
The CCAMLR aims to address this problem by setting up special rules for newly discovered fish stocks and such fish stocks on which a new technique is supposed to be applied.152 Initially, there is a requirement for the state that wishes to engage in fishing to collect information on the target species and on dependent species. During this period, fishing the stock is strictly limited.153 After one year, the stock becomes an exploratory species, whereby data collection requirements continue. This is supposed to allow for a research and fishery operation plan to be produced that is reviewed annually and sets limits for the TAC based on the MSY.154 In other words, there must be a balance between exploitation and informationgathering that allows the obtaining of sufficient data to manage the whole stock sustainably in the long run.
Summing up, the CCAMLR applies the PP in two ways: in the way living resources are harvested and in its regulation for the development of new fisheries.
The examination of the CCAMLR treaty shows — above all — the immense difficulties and uncertainties that come with the challenge of managing an ecosystem sustainably. The starting point for the treaty was the conservation of krill as a basic resource for Antarctic maritime life. From there on, complexity unfolded. This included not only epistemological but also ontological uncertainty: data abounds and cannot be obtained completely. Furthermore, the complexity of an interlinked system as complex as maritime ecosystems defies complete human understanding. Nevertheless, there is an obvious need for effective regulation as became evident in the 1970s when the scarcity of krill and the depletion of various ecosystems in the area gave rise to the regulatory system that today is CCAMLR.
This combination between inescapable uncertainty on the one hand and a
152 Commission for the Conservation of Antarctic Marine Living Resources, above n 143, at 18.
153 Ibid, at 18–19.
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need for effective regulation on the other was a severe challenge. CCAMLR met this challenge by applying both the ecosystem and the precautionary approach. The former takes into account the interconnectedness of maritime life, the latter deals with the challenges arising from ignorance. CCAMLR endeavours to meet these challenges by setting up complex models to determine sustainable catch limits. The variables that feature in these models are obtained by information gathering which must precede any fishing. Applying the PP in this process means that preservation of new stocks takes priority over exploitation until reliable information is available that helps to sustainably manage the stocks in the long run.
As for the available information that is used for setting up management models, it has become evident that they are never complete. The PP here serves to fill the gaps of ignorance: it argues for the setting of more conservative, stricter limits until better knowledge is available.
This situation mirrors the description of uncertainties given by Trouw borst.155 It can be seen how the PP can act to guide in a situation of immense complexity and uncertainty. Even though it obviously does not offer a precise answer on how to manage the fish stocks in Antarctic seas, it does offer guidance in their management. Thorough research is a prerequisite, though. The PP can help to elaborate in a situation when there is epistemological uncertainty (ie newly discovered fish stocks must be researched before they can be exploited) and ontological uncertainty (ie not all parameters for setting up a management system are known and neither are the consequences of their interdependence). The CCAMLR treaty system can be considered a good example of the handling of risk and uncertainty in a complex surrounding. The PP is an immensely useful tool in this setting as it provides guidance for the making of
As initially stated, CCAMLR was considered to be well ahead of its time. A more widespread application of precautionary thinking would be achieved in 1992.
4.4 1992 UN Conference on Environment and Development
Precautionary thinking can already be detected in maritime treaties of the 1950s to 1980s. Yet, it is commonly accepted that the PP had its breakthrough on an international level in 1992 at the UN Conference on Environment and Development in Rio de Janeiro (Rio Conference) where it received strong
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general endorsement.156 The Rio Declaration is considered to contain the core of the principle.157 Principle 15 of the Rio Declaration reads:158
In order to protect the environment, the precautionary approach shall be widely applied by all States according to their capabilities. Where there are threats of serious or irreversible damage lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.
Equally noteworthy is the incorporation of the PP in Agenda 21, the action plan decided upon in Rio,159 ch 17.01 of which requires:
new approaches to marine and coastal area management and development at the national, subregional, regional and global levels, approaches that are integrated in content and are precautionary and anticipatory in ambit ...
The strong international move towards embracing the PP and other principles of IEL (such as sustainable development, polluter pays, biological diversity, use of best available techniques, and best environmental practice) had a tremendous effect on international maritime law. One of the most notable features is the integration and application of these principles into RFMOs and other maritime treaties. This recent development has been referred to as “green international fisheries”.160 One noteworthy example of these treaties shall be analysed in the following section to determine to what extent the PP has been implemented and the legal and practical consequences of this implementation.
4.5 1995 UN Agreement on Straddling Fish Stocks and Highly Migratory Species
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
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Migratory Fish Stocks (SHMFSA) was signed on 4 August 1995.161 Straddling fish stocks are stocks of fish that frequently migrate between the EEZ of a state (or several states) and the high seas.162 These stocks raise two problems: first, the management of the stocks must be coordinated between the riparian states and other nations that engage in highseas fishing; second, the catches have to be allocated between vessels fishing in the various areas.163 UNCLOS addresses these problems in art 63(2) which obliges states to:
seek, either directly or through appropriate subregional or regional organi sations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.
This does not provide much guidance and the presence of straddling fish stocks has in practice led to much controversy in areas where there are commercially attractive straddling fish stocks.164 These include the “Donut hole”, a small area of high seas surrounded by the EEZs of Russia and the USA;165 the “Peanut hole”, an enclave of high seas surrounded by the EEZ of Russia;166 and the “Loop hole”, surrounded by the EEZs of Russia and Norway.167 To address these problems, the Rio Conference called for an intergovernmental conference “with a view to promoting effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks
...”.168 This conference, held in 1993 and 1995, produced the SHMFSA which entered into force on 11 December 2001.
The SHMFSA was influenced by the goals that were set forward by the Rio Declaration. It refers in its preamble both to the provisions of UNCLOS on straddling and highly migratory fish stocks169 and to the Rio Conference and the associated Agenda 21: state parties recall the relevant provisions of UNCLOS and explicitly refer to ch 17 of Agenda 21 where overutilisation, unregulated fisheries, overcapitalisation, excessive fleet size, vessel reflagging to escape
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controls, insufficiently selective gear, unreliable databases, and lack of co operation between states are explicitly referred to as problems.170 By referring to ch 17 of Agenda 21, SHMFSA also refers to the abovecited version of the PP and thus to “approaches ... that are integrated in content and precautionary and anticipatory in ambit”.
For the first time, an international agreement defines conservation in terms of ecosystem protection and protection of biodiversity.171 The environmental significance of fishing is recognised as an independent issue in its own right.172 The SHMFSA incorporates 50 articles and two annexes. Its objectives are
set out in art 2 which obliges states “to ensure longterm conservation and sustainable use of straddling fish stocks ... through effective implementation of the relevant provisions of the Convention”.
The SHMFSA then sets out the principles which should govern the man agement of straddling fish stocks. They are considered to be the most detailed of their kind found in an international legal text.173 These include: longterm sustainability of fish stocks,174 protection of biodiversity,175 and the application of the precautionary approach.176
Part III of the agreement sets out mechanisms for international cooperation and explicitly refers to existing RFMOs which are to be used for implementing the SHMFSA and obliges members of SHMFSA to join these.177 Where no such organisation exists, states shall establish one.178
For the purpose of this article, the implementation of the PP into the SHMFSA is of special interest. The agreement deals with it in art 6 which is referenced in art 3 of the agreement. Article 3 states that the SHMFSA only applies to fish stocks beyond areas of national jurisdiction — ie only in the high seas. Only arts 6 and 7 also apply to the conservation and the management of stocks
175 Ibid, art 5(g). 176 Ibid, art 5(c).
177 Ibid, arts 8(3), 9 and 10.
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within areas under national jurisdictions. Thus, the PP applies for activities of signatory states both within their EEZ and on the high seas.
(i) Article 6 of SHMFSA
The PP and its application is incorporated in art 6 which says:
(a) improve decisionmaking for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty;
(b) apply the guidelines set out in Annex II and determine, on the basis of the best scientific information available, stockspecific reference points and the action to be taken if they are exceeded;
(c) take into account, inter alia uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distribution of fishing mortality and the impact of fishing activities on nontarget and associated or dependent species, as well as existing and predicted oceanic, environmental and socioeconomic conditions; and
(d) develop data collection and research programmes to assess the impact of fishing on nontarget and associated or dependent species and their environment ... .
This is the first time the PP is explicitly referred to in an international fisheries treaty and also the first time it is applied to straddling or highly migratory fish stocks.179 Even though the North Pacific Treaty and CCAMLR incorporate obvious precautionary thinking, they do not explicitly refer to a precautionary principle or approach.
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When comparing the wordings of art 6 SHMFSA to Principle 15 of the Rio declaration one can easily see that the wording is similar and consistent: obviously the version of the PP incorporated does not involve a shift of the burden of proof. However, art 6(2) SHMFSA does influence the onus by stressing the importance of conservation and creating a presumption in favour of it.180 Yet, the action required from the application of the PP is not an immediate cessation of fishery which would not have been politically acceptable.181 Instead, it only requires states to be more cautious when information is uncertain, unreliable, or inadequate.182
(ii) The system of reference points
The actual implementation is dealt with in art 6(3)(a)–(d) SHMFSA.
Art 6(3)(a) SHMFSA requires states to obtain and share the best scientific information available. This stresses the importance of gathering as much information as possible which was already a prevalent notion in the CCAMLR treaty.
Art 6(3)(b) SHMFSA requires states to set up stockspecific reference points and actions to be taken if they are exceeded. The nature and management of these reference points is further dealt with in Annex II to the agreement. The system of reference points is the core element for the integration of the PP into the SHMFSA and requires closer examination.
Annex II first defines “reference points” as “estimated values derived through an agreed scientific procedure, which corresponds to the state of the resource and of the fishery, and which can be used as a guide for fisheries management”.183
Thus, reference points are an indication of the state of a certain fish stock which is supposed to guide in further managing it.
Annex II then differentiates between “limit reference points” and “target reference points”. The former are to set boundaries intended to constrain harvesting within safe biological limits within which the stocks can produce maximum sustainable yield. The latter are intended to meet management objectives.184
Both kinds of reference points are to be set up taking into account reproductive capacity, resilience of the stocks and the fisheries that exploit them, as well as other sources of uncertainty.185 Management strategies are then supposed to gear to these reference points and include measures that can
184 Ibid, Annex II(2).
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be implemented when these points are approached.186 In doing so, the risk of exceeding these points must be kept very low.187 Should the reference points be exceeded, facilitation of stock recovery becomes the paramount goal.188 The fishing mortality rate which creates MSY should be regarded as a minimum standard for limit reference points.189
These measures illustrate how the PP is being implemented in the agree ment: stocks have to be managed in accordance with the best scientific information available for each specific stock. The reference points thereby serve as guidelines for the future management of the stocks. Precaution comes into play at various levels: first, the process of setting up reference points is dominated by precaution since they must take into account “major sources of uncertainty”.190 Unknown threats are thus recognised.
Second, the management of fisheries which is based on the precautionary reference points “shall ensure that the risk of exceeding limit reference points is very low”.191 Thus, fisheries must be managed in a precautionary way that avoids the risk of approaching the reference points.
Third, special management systems are to be triggered when these points are approached or exceeded: “If a stock falls below a limit reference point or is at risk of falling below such a reference point, conservation and management action should be initiated to facilitate stock recovery.”192
As can be seen, the implementation of the PP happens on three levels: the reference points must be set up in a precautionary way; the management must act with precaution to make sure that they are not approached; and, in case of approaching the reference points, a special action and management programme is initiated making conservation a special priority.
This system mirrors the abstract system described by Trouwborst.193 It deals with a threat of environmental harm which is the depletion of the managed fish stocks and addresses the uncertainties which surround it. It dictates action on various levels: setting up lower reference points in case of uncertainty; setting up a management that ensures that the socrafted reference points are adhered to; and triggering different conservationcentred management systems in case of exceeding or approaching one of the two reference points.
The system also illustrates the abovementioned observation that the PP does not prescribe a specific measure. The application of the PP leads to very
186 Ibid, Annex II(4). 187 Ibid, Annex II(5). 188 Ibid.
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different measures according to the situation: setting up a more conservative value for the reference points; managing the fishing in a more cautious way; and triggering special conservation programmes. Thereby the PP gains flexibility.
All in all, this system of reference points can be considered a complex and sophisticated way of managing uncertainties and risks. It addresses different kinds and levels of risks and obliges states to adapt their fishing to these. Also, they are obligatory for the parties to the convention. Thus, there is an obligation on state parties to be cautious and to employ the system that is set out in Annex II.
Obviously, the practical use of the system set out in Annex II depends on the action that is taken by the states in reality. Yet, the language employed by Annex II is very specific and gives little room for interpretation. The only apparent flaw that can be detected is a complete lack of consequences for failing to stick to the reference points and the respective action to be taken. Especially, there is no obligation included to stop fishing altogether.
The SHMFSA incorporates the PP in a highly sophisticated way. Even though there is no moratorium or definite obligation to stop fishing, there is a highly sophisticated system of reference points which takes into account various risks and threats to the regulated ecosystem. Uncertainty and risks are taken into account both in setting up reference points and in sticking to them. There is a clear system of action taking place when these points are approached or even exceeded. In doing so, the SHMFSA shifts the principal assumption from freedom of exploitation to conservation.194
Also, the system is proactive in terms of implementing precaution since the setting of reference points itself contains precautionary thinking and has to happen in advance of any fishing. Conservation is thus not a mere reaction to a problem detected but has become an intrinsic value for managing of fisheries in general.
The importance of this approach is explicitly recognised by the SHMFSA by applying the PP not only to the high seas but also to the EEZs of member states. This is especially remarkable since it is a severe limit to the national sovereignty of the states which have to cede a significant part of the control of their EEZ.
194 Freestone, above n 120, at 162–163.
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As can be seen, the role of the PP has visibly evolved in the treaties that were examined above. The 1952 CHFNPO does include precautionary notions without explicitly referring to them. Its principle of abstention was pre cautionary insofar as the Commission of the CHFNPO could require states to abstaining from further fishing. Yet, it was still far from a modern understanding of the principle since it required “evidence based on scientific proof ” before the Commission could take action. It still managed — in these situations — to shift the onus of proof from conservation to exploitation: states that wished to engage in fishing had to prove that the criteria which would necessitate abstention were no longer present and the stocks were thus stable enough to support further exploitation. Yet, as mentioned above, the big intrinsic flaw of this system was the fact that states already engaged in fishing could deter others.
The 1982 CCAMLR treaty was more evolved and sophisticated in many ways, particularly in the combination of an ecosystem approach and a precautionary approach. The former takes into account the interrelatedness of marine life and links the fishing of one species to the state of dependent species. The immense scientific knowledge which is required to maintain such a system gives room for the precautionary principle. It is applied in two ways. First, in making decisions for catch limits for specific species. These take into account various factors which are obtained by scientific research. The PP serves to fill the gaps and thereby leads to conservative, cautious catch limits. Second, the PP is applied when exploring new fish stocks for exploitation. Before they may be fished, interested states have to provide sufficient data which allows for a scientifically grounded decision on exploitation. Thus, any state that wants to engage in fishing has to provide the information that is necessary for an informed decision. While this is not yet a genuine shift of the burden of proof it does raise the requirements for fishing remarkably.
By far the most sophisticated system among the treaties analysed can be found in the SHMFSA. It is a postRio treaty and thus incorporates the principles and values that have been elaborated since 1992 in Rio. These changes are evident and palpable at first glance.
The SHMFSA explicitly incorporates a “precautionary approach” and refers to the Rio Declaration and to Agenda 21 both in the wording of the treaty and in the values incorporated. Not only does it make the PP a core element of the treaty: it is to be observed both in the EEZ of the party and in the high seas. Furthermore, it outlines very clearly and precisely how the PP shall be applied. This happens first in art 6 of the treaty itself. Moreover, it is given precise shape in the system of reference points incorporated in Annex II of the treaty. Precautionary thinking comes into play not only in setting up the reference points, where major sources of uncertainty have to be taken into account, but
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also in the management strategies for the fish stocks that depend on these reference points and that vary depending on the state of the fish stocks.
All in all, there is an apparent evolution in the implementation of the PP that can be traced back through the decades. This can be seen in the intensity of implementation and in the effectiveness of the respective rules.
5. CONCLUSIONS AND PERSPECTIVES
This article has shown that the implementation of the PP has evolved signifi cantly since the 1950s. This development corresponds with the evolvement of IEL in general, outlined at the beginning of the article: the three treaties mirror the three stages of environmental protection described by Bodansky.
The 1952 CHFNPO was still coined by the early conservationist stage. Its main goal was the preservation and conservation of the fish stocks in the North Pacific for the sake of the fishing industry. It did not take into account ecological interrelations and connections but aimed to preserve each fish stock separately. It addressed only direct threats: preservation measures were only taken when fish stocks were depleted. Its abstention principle had massive flaws and it is arguably for this reason that it was not incorporated in many later treaties. Nevertheless, CHFNPO must be considered progressive for its time as it did include a precautionary approach by imposing the burden of proof on the state that aimed to engage in exploitation under certain circumstances.
The 1982 CCAMLR treaty can be placed in between the second and third stages identified by Bodansky. Its focus is much broader than the one taken by CHFNPO. It recognises the interrelatedness of maritime life and finds legal responses to it by adopting its ecosystem approach. It demands massive scientific exploration of the maritime ecosystems but still accepts that there must always be limits to its understanding. This is where the PP comes into play. As can be seen, it serves two functions, filling the gaps of ignorance in making managements plans and requiring states to gather information before new fish stocks may be exploited. This management of an ecosystem must be considered to be highly progressive for its day and typical of the third phase of environmental protection, influenced by a holistic concept of management. Yet, CCAMLR naturally does not take into account all of the new developments of IEL that will later define the 1992 Rio Conference.
These can be spotted in the 1995 SHMFSA. It is an advanced, postRio treaty which incorporates the principles of the Rio Declaration explicitly and comprehensively. It deals with the proactive management of complex ecosystems. In that respect it is more sophisticated and advanced than CCAMLR. This can be seen clearly in the implementation of the PP. The SHMFSA deals with it extensively in very clear and binding language. As can
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be seen, precautionary thinking comes into play at various levels, implemented through a complicated system of reference points.
In coming to these findings upon the dispute about the PP some clear statements can be made.
First, the PP has emerged as a reaction to an apparent need: it was obvious that regulations about the management of fish stocks had to be made since many species were (and are) depleted and close to extinction. A continued laissez faire exploitation was not a reasonable option. Reliable decisions for protection were (and are) simply necessary. This necessity is complicated by the lack of full scientific data and knowledge and the uncertainties surrounding it. The PP was the obvious response that arose from the tension between a necessity of regulation and uncertainty. It made action in a situation of uncertainty possible and helped to guide its direction.
Second, the PP obviously does not provide one valid answer or solution to environmental problems. As Trouwborst concluded, it does not prescribe any specific measure — any measure can be a precautionary measure. This was verified by the wide array of measures that derive from the application of the principle in the SHMFSA and its reference points system.
Third, the PP can act to guide states in a decisionmaking process towards a solution or measure. It does not itself prescribe a valid solution but may offer orientation and guidance by arguing in one direction: that of prudence. In that respect it has obviously proven to function in the making of CCAMLR and SHMFSA. It may not prescribe a specific measure but it argues in one specific direction and therefore provides guidance and orientation in a highly complicated surrounding.
Fourth, the implementation of the PP in the SHMFSA shows that it can have a strong and palpable effect in an international treaty. The treaty sets up very precise measures and rules that deal with precaution and are derived from the PP. In that shape, the PP is meaningful and can have a strong effect on decision making in the context of environmental protection.
Jonathan Wiener has severely criticised the PP, arguing that uncertainty should better be addressed in standard decision analyses and proposing the emergence of a new body of global administrative law to work on inter national consensus and a reasonable middle ground based on analyses on consequences.195
The results of this article seem to argue against this position: apparently, the PP does not replace standard decision analyses as Wiener suggests — it is, rather, a part of these. Since the PP does not itself prescribe any specific measures it must always be seen in the context of a decisionmaking process. It comes into play whenever uncertainties concerning a risk occur. In that situation
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it argues for the side of precaution. This mechanism could be seen clearly with the CCAMLR treaty where the PP helped to fill the gaps of uncertainty in making management decisions for the ecosystem. The same applies for the making of reference points in the SHMFSA.
Also, Wiener criticised the PP for being inflexible — precaution was not a suitable solution in every situation. He concluded that the PP was in disarray and lacked clarity since it does not prescribe what action exactly should be taken.196
The findings of this article argue strongly against this criticism. First, it is true that the PP does not prescribe a specific action. This has been discussed above and was concluded in the same way by Trouwborst. But this is obviously not what it is meant to do. Wiener’s criticism appears to be highly self contradicting: on the one hand, he criticises the PP for being inflexible; on the other, he criticises it for not prescribing one precise action to be taken. This article suggests that the PP is highly flexible and adaptable because it is not limited to one specific solution. It guides in a decisionmaking process and argues for the side of precaution. Since it does not argue for one specific action it can be employed in many situations. Its application in the SHMFSA shows the variety of actions that can be triggered by the PP. In this context the PP proves to be both meaningful and precise. Since any measure can be a precautionary measure, it is also flexible enough to deal with various threats in different surroundings.
Wiener also suggested that the PP lacked clarity and was in disarray. Yet, this article has clearly shown that it can be meaningfully applied. Both in the context of CCAMLR and in the context of SHMFSA it is given very precise shape and very clear measures are derived from its application.
At least in the limited context of fisheries, this article has shown that the PP does have a precise and meaningful content and provides clear guidance. In this context, the criticisms of Wiener cannot be endorsed.
Rather, it can be said with certainty that the PP does have a significant role to play and is applied in a meaningful, distinctive and increasingly sophisticated way. In an area of conflict between necessary regulation and omnipresent uncertainty, it offers guidance and can help in the making of decisions that lead towards sustainable development.