The 1982 United Nations Law of the Sea Convention contains no specific rules for achieving these objectives and no sanctions for failure to agree and implement conservation measures.
In 1995 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" (1995 UN Fish Stocks Agreement) was adopted. The Agreement entered into force on 11 December 2001, one-month after the deposit of the thirtieth instrument of ratification or accession with the depository, the Secretary-General of the United Nations1.
Although the Agreement has the potential of considerably strengthening provisions relating to certain high seas fisheries, there remain weaknesses in the governance of high seas fishing. When the agreement is implemented fully, there will still be nothing to prevent vessels from States that are not party to the agreement, and which choose not to comply with the rules established by a regional fisheries management organization, from freely fishing stocks which a regional fisheries management organization is attempting to manage. The failure of States to accede to and ratify the Agreement will limits its effectiveness.
There are also high seas fish stocks that are neither highly migratory nor straddling and which remain under conditions of open access, as they are not formally covered by the 1995 UN Fish Stocks Agreement. Although this problem pertains to a very small percentage of the total global marine catch, it should not be considered minor from a biodiversity perspective. Unless the problem is addressed the fate of these stocks is no different to that of any others that lack adequate management.
The 1995 UN Fish Stocks Agreement, inter alia, sets out comprehensive areas in which a regional fisheries management organization will have competence covering scientific research, stock assessment, monitoring, surveillance, control and enforcement (Art. 10) and the setting of catch limits. A State party to the Agreement may only authorize a vessel flying its flag to fish on the high seas where it is able to exercise effectively its responsibilities of enforcement (Art. 18(2)). A flag State is obligated to permit access by duly authorized inspectors from other States (Art. 18(3)(g)(i) and Art. 22) and the use of onboard observers from other States ((Art. 18(3)(g)(ii)). The flag State must take action against a vessel reported to have committed a serious violation (Article 21 (11)) and failure to do so gives the inspecting State the right to take action (Article 22). Inspectors from a member State of a regional organization established under the Agreement have the right to board and inspect a vessel of another state party to the Agreement (Article 21).
The 1995 UN Fish Stocks Agreement thus has the potential of enabling effective management of stocks on the high seas, provided all fishing nations ratify or accede to it.
The 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Conference Resolution 15/93) and the Code of Conduct for Responsible Fishing are consistent with the 1982 Convention and the 1995 UN Fish Stocks Agreement. Strenuous efforts have been made by the FAO to gain widespread support and implementation by States of the Compliance Agreement and the Code of Conduct which, inter alia, address flag State responsibilities and seeks to advance fishery management measures, by agreement among States, that improve the optimal and sustainable use of fisheries resources.
To strengthen the Code of Conduct and as a means of addressing specific and pressing fishery issues, four international plans of action (IPOAs) have been concluded within the framework of the Code. These IPOAs concern reducing the incidental catch of seabirds in longline fisheries; the conservation and management of sharks; the management of fishing capacity; and the prevention, deterrence and elimination of illegal, unreported and unregulated fishing.
Providing States recognize the long-term advantages of co-operation in the management of fisheries resources and commit themselves to the implementation of the measures that are provided for in the 1995 UN Fish Stocks Agreement, the 1993 Compliance Agreement, the Code of Conduct for Responsible Fisheries, and the IPOAs, it may be possible to achieve vastly improved management of high seas fisheries on the basis of agreements already made.
1 As of 1 June 2002, the 1995 UN Fish Stocks Agreement had been ratified or accepted by 31 Member of the United Nations, including Armenia, Bahamas, Barbados, Brazil, Canada, Cook Islands, Cost Rica, Fiji, Iceland, Iran (Islamic Republic of), Maldives, Malta, Mauritius, Micronesia (Federated States of), Monaco, Nauru, Nepal, Nicaragua, Norway, Papua New Guinea, Russian Federation, Saint Lucia, Samoa, Senegal, Sierra Leone, Solomon Islands, Sri Lanka, Trinidad and Tobago, United Kingdom (on behalf of Pitcairn, Henderson, Ducie and Oeno Islands, Falkland Islands, South Georgia and South Sandwich Islands, Bermuda, Turks and Caicos Islands, British Indian Ocean Territory, British Virgin Islands and Anguilla), United States of America and Uruguay.