Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and 1995 UN Fish Stocks Agreement

164 Pages·2001·0.4 MB·English

by  David Freestone

Legislating for
Sustainable Fisheries
Law, Justice, and Development
The Law, Justice, and Development papers are intended to provide insights
into aspects of law and justice that are relevant to the development process.
New legal and judicial reform activities related to the World Bank’s work
will be presented, as well as analyses of domestic and international law. The
series is intended to be accessible to a broad audience as well as to legal
practitioners.
Series editor: Rudolf V. Van Puymbroeck
Legislating for
Sustainable Fisheries
A Guide to Implementing the 1993 FAO Compliance
Agreement and 1995 UN Fish Stocks Agreement
William Edeson
Senior Legal Officer
Legal Office
Food and Agriculture Organization of the United Nations
David Freestone
Chief Counsel
Environmentally and Socially Sustainable Development
and International Law Group
The World Bank
Elly Gudmundsdottir
Counsel
Europe and Central Asia Group
The World Bank
The World Bank
Washington, D.C.
Copyright © 2001 The International Bank for Reconstruction
and Development / The World Bank
1818 H Street, N.W.
Washington, D.C. 20433, USA
All rights reserved
Manufactured in the United States of America
First printing September 2001
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Library of Congress Cataloging-in-Publication Data
Edeson, W. R. (William R.)
Legislating for sustainable fisheries : a guide to implementing the
1993 FAO Compliance Agreement and 1995 UN Fish Stocks Agreement /
William Edeson, David Freestone, Elly Gudmundsdottir.
p. cm. — (Law, justice, and development)
Includes bibliographical references and index.
ISBN 0-8213-4993-7
1. Fishery law and legislation. 2. Fishery conservation. I.
Freestone, David. II. Gudmundsdottir, Elly, 1964– III. Title. IV.
Series.
K3895 .E34 2001
343.73'07692—dc21
2001045660
Contents
Abstract vii
Preface ix
Acknowledgments xi
Acronyms and Abbreviations xii
INTRODUCTION 1
PART ONE: Implementing the Compliance Agreement 5
Administration 5
Flag State Responsibility 7
Exchange of Information 13
The Scope of Application of the Compliance Agreement 15
Canadian and Norwegian Practice 17
PART TWO: Implementing the Fish Stocks Agreement 21
Parts I and II 21
Parts III and IV 37
Part V: Duties of the Flag State 39
Implementation into National Law 42
Other Duties of Flag States 48
Jurisdiction over “Nationals” 62
Port State Jurisdiction 65
Implementing Conservation and Management Measures 70
Innovative Approaches 71
“Long Arm” Jurisdiction 72
Provision of Data 73
vi Contents
FINAL REMARKS 77
APPENDIX I Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels
on the High Seas 79
APPENDIX II 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 93
APPENDIX III The FAOStandard Specifications for the Marking
and Identification of Fishing Vessels 137
NOTES 143
Abstract
Increasing concerns have been raised about the sustainability of many fish
stocks. A number of international instruments, both voluntary and binding,
have been formulated to address this. Two important binding agreements
that are designed to address this problem on a global basis are the 1993 FAO
Compliance Agreement and the 1995 UN Fish Stocks Agreement. However,
neither of these agreements has yet entered into force. For some countries,
particularly smaller developing countries, the very complexity of the task of
transposing the provisions of these agreements into national law may itself
be an obstacle to, or cause of delay in, becoming a party to them. The pur-
pose of this guide is to facilitate the ratification or acceptance of these agree-
ments in such countries. The guide provides an outline of some of the most
significant provisions of the two agreements and a “tool kit” of the various
approaches that have already been used by those few states that have already
enacted national legislation to meet the obligations and the objectives con-
tained in these two agreements.
vii
This Page Intentionally Left Blank
Preface
This work is intended as a practical guide for the parliamentary drafter or leg-
islator faced with the task of transposing the obligations of two significant
fisheries agreements into national law: the 1993 Agreement to Promote Com-
pliance with International Conservation and Management Measures by Fish-
ing Vessels on the High Seas, and the 1995 Agreement for the Implementa-
tion 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. These two agree-
ments will be referred to as the “Compliance Agreement” and the “Fish
Stocks Agreement,” respectively. Both agreements derive their significance
from the 1982 UN Law of the Sea Convention, but each, in different but
equally novel ways, develops the 1982 regime.
Although both agreements have attracted a great deal of attention, at the
time of this writing the number of parties to each remains relatively small
and neither agreement has yet entered into force. There are obviously a large
number of reasons for this, but informal discussions suggest that for some
states, particularly smaller ones, the task of transposing the complex provi-
sions of these agreements into their national law is itself an obstacle to, or a
delaying factor in, ratification or acceptance. It is hoped that this Guide will
be of some assistance in that regard.
The development of this Guide posed a number of challenges for us. It is
not intended as a comprehensive assessment of all the implementing legisla-
tion passed to date; indeed it does not address all the minutiae of implemen-
tation. Rather it seeks to provide an understanding of the issues that need to
be addressed when transforming the obligations of the aforementioned inter-
national instruments into national law, and to provide examples of the sorts
of drafting techniques that other countries have used to achieve this goal. It
certainly does not propose a model law—a device that, given the interrela-
tion of the agreements with existing national legal frameworks, we did not
ix