Enhanced Fishing Rights Under The United Nations Law of The Sea Convention 1982: The Challenges Confronting Developing Countries
Keywords:
Fishing rights, fishing zones, seasAbstract
Before the adoption of the Law of the Sea Convention (LOSC) in 1982, the right of states to fish in the seas was in a remarkable state of flux. States unilaterally and arbitrarily declared for themselves preposterous breadths of the sea as coming under their exclusive fishing jurisdictions. Waters off the coast of developing countries also came under unregulated large scale fishing by the distant water fishing fleets of developed countries, giving rise to resource over-exploitation. The LOSC in a number of ways infused stability and certainty in the fishing rights of states and enhanced the chances for the optimum utilisation of world fisheries. This article examines the various ways the LOSC has stabilised and enhanced fishing rights among states. It argues that although the Convention creates opportunities for the protection and optimal utilisation of fishery resources among developing countries of the world, these countries have yet to take advantage of the Convention opportunities due to numerous challenges, endogenous and exogenous, confronting them.
References
Essien E. E, Essays in International Law of the Sea, Uyo: Golden Educational Publishers, 1994, p. 108; Holmina E., ‘Common Heritage of Mankind in the Law of the Sea’, 1(2005) ACTA SOCIETAS TIS MARTENSIS, P. 187.
Offshore oil production is about 18,600 barrels of oil per day (about 30% of world oil production per day) while offshore gas production accounts for approximately half of the total world gas production. SeeUnited Nations, ‘Oceans: The Source of Life, The United Nations Convention on the Law of the Sea: 20th Anniversary (1982-2002)’ accessed 15 November 2014.
The Icelandic and Norwegian economies depend much on earnings from fisheries. China, Peru and the U.S.A. also earn enormous foreign exchange from fishery resources.
Troadec J. P., ‘Havesting the Seas’, 1 Fisheries and Aquaculture <http://www.E5-05-01.pdf> accessed 1 January 2014; Cullis-Suzuki S. and Pauly D., ‘Failing the High Seas: A Global Evaluation of Regional Fisheries Management Organizations’ 34 (2010) Marine Policy 1036.
Iceland, Norway and Japan are examples.
Essien (n 1), p. 12
The Convention was the outcome of the third UN Conference on the Law of the Sea convened in 1973 pursuant to General Assembly Resolution 3067 (XXVIII). The Convention was signed on 10th December, 1982 at Montego Bay, Jamaica and adopted by 130 votes to 4 with 17 abstentions (Hereinafter, “LOSC”).
See INTRODUCTION above.
The 1958 Convention on the Territorial Sea and the Contiguous Zone which entered into force in 1964; The 1958 Convention on the High Seas which entered into force in 1962; The 1958 Convention on Fishing and Conservation of Living Resources of the High Seas that entered into force in 1966; and the 1958 Convention on the Continental Shelf which entered into force in 1964.
The Convention entered into force in 1966.
Arts. 1-4, LOSC
Shaw M. N., International Law, 5th edn., Cambridge: University Press, 2003, p. 157; Harris D. J., Cases and Materials on International Law, 6th edn, London: Sweet & Maxwell, 2004, P. 467
Harris, ibid.
I.C.J. Rep. 1974, p. 3 (U.K. v Iceland); I.C.J. Rep. 1994, p. 175 (F.R.G v Iceland). But Iceland’s claim of 50-mile exclusive fishing zone was to be illegal.
See FAO, Limits and Status of the Territorial Sea, Exclusive Economic Zone, Fisheries Conservation Zones and the Continental Shelf, FAO Legislative Series, No. 8, as revised.
The agreement incorporated the provision of a United States-Canadian proposal at the second 1960 UN Conference on the Law of the Sea. The Conference did not adopt the proposal as it failed by one vote.
Essien (n 1) p.16
See note 16 above.
Decree No. 38 of 1971. Notice that the 30-mile Territorial Sea is still contained in section 18 of the Interpretation Act in the interpretation of “territorial waters”, but is to be substituted for “twelve nautical miles” under section 3(1)(a) of the Territorial Waters Act.
Cap S4 Laws of the Federation, 2004(Revised Edition)
Ibid, Section 1.
Essien is of the view, for example, that in the case of Nigeria both fishing interests and the desire to bring more of the oil deposits of the coast within the country actuated the extension of the territorial sea. See Essien (n 1) p. 17.
Article 3, LOSC
Ibid arts. 55 and 56
Ibid art. 61(1)
See generally Part X11, ibid
The other proclamation declared that the sea–bed and subsoil adjacent to the United States territorial sea was within the jurisdiction and control of the United States. This marked the beginning of continental shelf claims by coastal states.
Essien (n 1) p.7
The concept was later in 1992 presented again by Kenya at the Lagos Session of the Committee. The country also submitted a draft article of the concept at the 1972 Geneva Session of the UN Sea-bed Committee. About the same time, Latin American states conceived the idea of “patrimonial sea” which was also resource motivated and complemented the EEZ concept in both form and substance. Venezuela popularised the patrimonial sea concept when in August 1971 it submitted a proposal on the concept to the UN Sea-bed Committee. The concept was later contained in the Santo Domingo Declaration of June 7, 1972 which was approved by ten Central and South American states. See Essien (n 1), pp. 22-23. During the third UN Conference, however, the expression “Exclusive Economic Zone” was preferred to “patrimonial sea”.
Art.57 (1) (9), LOSC
Ibid Art. 58 (1),
75% of Iceland’s export comprises fish products. Her annual fish harvest in recent years has fluctuated around 1.7 million tones, with a landed value of US$ 8000 million. See Runolfsson B., ‘ITSQs in ICELANDIC FISHERIES: A Rights Based Approach to Fisheries Management’, Paper presented at a workshop on The Definition and Allocation of Use Rights in European Fisheries, May 5-7, Brest, France.
In 2013 alone, Norwegian vessels delivered 2.1 million tons of fish, crustaceans and molluscs with a landed value of NOK 12.5 billion. This was still 3% less than catches and earnings for 2012. See “Fisheries, 2013, preliminary figures” <http://www.ssb.no/en/fiskeri> accessed February 2, 2014.
See Harris (n12) p. 475, para. 8.
Eggert H. and Graeker M., ‘Effects of Fisheries on Developing Countries: Possibilities for Income and Threat of Depletion’ 2009 Environment for Development, p. 1
See generally, Juda L., ‘World Marine Fish Catch in the age of Exclusive Economic Zones and Exclusive Fisheries Zones’ 22 (1991) O.D.I.L 1-32; Pontecorvo G., ‘The Enclosure of the Marine Commons: Adjustment and Redistribution in World Fisheries’, 12 (1988) Marine Policy 361-372.
Wijkman P. M., ‘UNCLOS and the Redistribution of Ocean Wealth’ 16(1982) Journal of World Trade Law, pp. 31-32.
Harris (n 12) p. 475.
Art. 62, LOSC
Ibid art. 62(2)
Ibid
Ibid
Such measures include the licencing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry; determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; fixing the age and size of fish and other species that may becaught;specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data; the placing of observers or trainees on board such vessels by the coastal State; the landing of all or any part of the catch by such vessels in the ports of the coastal State; terms and conditions relating to joint ventures or other cooperative arrangements;requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State’s capability of undertaking fisheries research; andenforcement procedures.
Wijkman P. M., ‘UNCLOS and the Redistribution of Ocean Wealth’, 16 (1982) Journal of World Trade Law, p. 27
See Annex 1, LOSC for a list of highly migratory fish species.
Juda L., ‘The Exclusive Economic Zone Management’, 18 (1987) O.D.I.L., p. 305.
See‘Fish Migration Science Daily, <http://www.sciencedaily.com/articles/f/fish_migration.htm> accessed 1 February 2014.
Art.64 LOSC
Ibid art. 66
Ibid art. 67
R. P. Khodorevskaya, G. I. Ruban, D. S. Pavlov and G. J. Ruban, Behaviour, Migrations, Distribution, and Stocks of Sturgeons in the Volgan-Caspian Basin,<http://www.books.google.com.ng books? id=4yYNoouGzUCpg=PA13&dq=anadromous+stocks&source=bl&ots9nwlokLK 1_&sig=adviaZ52WnOclvRRuCAt=zbKE&hl=en&sa=X&ei=3azsUo77Iamg0QWs5YDQBA&redir_esc=y> (accessed 30/01/14).
Ibid
Ibid
Art. 64 (1)- LOSC
Ibid art. 66 (2)
Ibid art. 66 (3)
Ibid art. 66 (3) (a)
Ibid art. 67 (1)
Ibid art. 67 (3)
See FACTSHEET <http://www.factsheet_8.pdf> accessed 1 January 2014.
The Conference held in New York from July 24 to August 4, 1995.
The full title of the agreement is “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 the Straddling Fish Stocks and Highly Migratory Fish Stocks”. The Agreement was adopted in 1995 and entered into force in 2001. Seventy-eight states and entities have ratified the Agreement till date.
Satya Nandan is Chairman of the Western and Central Pacific Fisheries Commission (WCPFC), one of the sub-regional organizations created pursuant to the UNFSA.
See articles 7 and 8, UNFSA
They include the South East Atlantic Fisheries Organisation (SEAFO), the Western and Central Pacific Fisheries Commission (WCPFC) otherwise called the Tuna Commission, the Inter-American Tropical Tuna Commission (IATTC), the North-East Atlantic Fisheries Commission (NEAFC) and the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).
Art. 10(b) UNFSA
For a detailed study of the problems associated with RFMOs, see Cox A., ‘Quota Allocation in International Fisheries’ (OECD Food, Agriculture and Fisheries Papers, No. 22 OECD Publishing, 2009) <http://dx.doi.org/10.1787/218520326143> accessed 31 January 2014.
Art. 192 LOSC
Ibid art. 207
Ibid art. 212
Ibid art. 210
Ibid art. 211
Ibid art. 214
Ibid art. 215. The ‘Area’ under art. 1(1) of the Convention is used to refer to the seabed and ocean floor and subsoil beyond the outer edge of the continental break or margin of a coastal state.
See arts. 200-202, LOSC
The IMO is a UN specialised agency with a mandate to promote, secure, environmentally sound, efficient and sustainable shipping.
UNEP is an agency of the UN that coordinates UN environmental activities and assists developing countries in implementing environmentally sound practices.
Such instruments include the International Convention for the Prevention of Pollution from Ships; International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties; International convention on oil pollution Preparedness, Response and Cooperation; International Convention on Civil Liability for Oil Pollution Damage; Convention on Prevention of Pollution by Dumping of Wastes and other Matter; International Convention on the Control of Harmful Anti-fouling Systems on Ships; and International Convention for the Control and Management of Ships’ Ballast Water and Sediments.
Art. 203 LOSC.
Ibid art. 217
Ibid art 218
Ibid art. 220
See Harris, Cases and Materials on International Law, 6th edn. London: Sweet & Maxwell, 2004, p. 475, para. 8; Essien (n 1), pp. 108-116; Roberts K., ‘Legal and Institutional Aspects of Fisheries in West Africa’, 10 (1998) RADIC 88. See generally also the preamble to the Convention which aspires that the Convention should ‘contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole, and in particular, the special interests and needs of developing countries, whether coastal or land locked.’ (Emphasis supplied)
See generally, Overseas Development Institute, ‘Fisheries and the Third World’ Briefing Paper 2, June 1984.
In fact during the period 1989-2002, the net exports of fisheries commodities by developing countries (i.e., deducting their imports from the total value of their exports) increased from US$4.0 billion to US$ 17.4 billion. This was greater than the net exports of other agricultural commodities such as rice, cocoa, tobacco, and tea. See Eggert H. and Graeker M., ‘Effects of Global Fisheries on Developing Countries: Possibilities for Income and Threat of Depletion’, Environment for Development, research work commissioned by Environment and Trade in a World of Interdependence (ENTWINED) and Foundation for Strategic Environmental Research, 2009, p. 1
For example, in the last decade, in the North Atlantic Region, commercial fish populations of species like cod, hake, haddock and flounder have fallen by as much as 95%, prompting calls for urgent measures. Despite also the high level of awareness and development among the developed countries of the world, marine area protection and conservation has not been impressive across the world. In fact it is estimated by UNEP that less than 1% of the world’s oceans are currently in Marine Protected Areas (MPAs). And according to the FAO, over 70% of the world’s fish species are either fully exploited or depleted. See United Nations, ‘Overfishing: A Threat to Marine Biodiversity’ <http://www.un.org/events/tenstories/06/ story.asp?storyID=800> accessed 10 February 2014. According to Eggert and Graeker, more than 20% of fish stock has crashed across the world, 40% are overexploited and the remaining 35% are fully exploited,
a trend that is bound to threaten ecosystems and lead to poor yield and low income. See Hakan Eggert and Mads Graeker, ‘Effects of Global Fisheries on Developing Countries: Possibilities for Income and threat of Depletion’ Environment for Development, Discussion Paper Series, 2009, p. 2; See also Pauly D., Christensen V., Guenette S., Pitcher T. J., Sumaila U. R., Walters C. J., and Zeller D., ‘Towards Sustainability in World Fisheries’, 418 (2002) Nature, pp. 689-95; Worm B., Barber E. B., Beaumont N., Duffy J. E., Folke C., Halpen B., Jackson J, Hotze H., Micheli F., Palumbi S. R., Sala E., Selkoe K. A., Stachowicz J. J. and Watson R., ‘Impacts of Biodiversity Loss on Ocean Ecosystem Services’, 314(2006) Science, pp. 789-90.
United Nations, ‘Overfishing: A Threat to Marine Biodiversity’, http://www.un.org/events/tenstories/06/ story.asp?storyID=800 (accessed on 17 October 2014).///
Marine Resources Assessment Group, Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries, Synthesis Report, June 2005, p. 5
Ibid.
Ibid., p. 13.
Eggert and Graeker (n 85) p. 1
‘Monitoring’ is the continual measurement of fishing effort characteristics and catches.
‘Control’ refers to the whole legal framework within which fisheries resources may be exploited.
‘Surveillance’ embraces all measures required to ensure compliance with the established legal framework.
Marine Resources Assessment Group (n 89) p. 11
In Seychelles, for example, IUU fishing involves mainly export tuna. See ibid.
In West Africa, IUU fishing is predominantly in respect of inshore shrimp and demersal fish consumed locally. See ibid.
See Environment South Africa, ‘Methods to Help South Africa’s Overfishing Problem ’ <http://www.environment.co.za/wildlife-endangered-species/methods-to-help-south-africasoverfishing- problem.htm> accessed 1st February 2014.
Ibid
Guinea, Somalia, Angola, Mozambique, Papua New Guinea, Sierra Leone, Liberia, Seychelles, Kenya and Namibia.
See Marine Resources Assessment Group (n 87) p. 6
Kwadjosse T., ‘The Law of The Sea: Impacts on the Conservation and Management of Fisheries Resources of Developing Coastal States – The Ghana Case Study’ United Nations, Yew York, 2009, p. 3.
Sikoki F. D., ‘Fishes in Nigerian Waters: No Place to Hide’ Inaugural Lecture Series, No. 100, University of Port Harcourt, 31 January 2013, p. 43
Ibid, p. 13
EUROPA,’Fisheries: Fisheries and Poverty Reduction’ <http://www.europa.eu/
legislation_summaries/defelopment/sectoral_development_policies/r12512_en.htm> accessed on 2nd February 2014.
Art. 62(2) LOSC
Eggert and Graeker, (n 85) p. 11
See Munro M., Houtte V., and William R, ‘The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects’, FAO Fisheries Technical Paper, 2004, No. 465, p. 7.
In Africa, for example, there the Commission for Eastern Central Atlantic Fisheries created in 1967; the Ministerial Conference on fisheries Cooperation Among States Bordering the Atlantic Ocean created in 1989 and the Sub- Regional Fisheries Commission created on 29 March 1985.
See art. 10(b) UNFSA; Cox A., ‘Quota Allocation in International Fisheries’OECD Food, Agriculture and Fisheries Papers, No. 22, (2009) OECD Publishing, p. 11
Roberts K., ‘Legal and Institutional Aspects of Fisheries in West Africa’ 10 (1998) RADIC 88, 120
Ibid
Ibid
See generally, Cullis-Suzuki S. and Pauly D., ‘Failing the high seas: A global evaluation of regional fisheries management organizations’ 34 (2010) Marine Policy 1036–1042; Roberts (n 106)p. 116.
Eggert and Graeker (n 85) p. 15
Sumaila U. R. and Pauly D., (eds), ‘Catching More Baits: A Bottom-Up Re-estimatio n of Global Fisheries Subsidies’ (2006) 14(6) Fisheries Centre Research Reports,1
Eggert and Graeker (n 85) p. 10
Ibid
Abaza H. and Jha V., ‘Integrated Assessment of Trade Liberalisation and Trade-Related Policies: A Country Study on the Fisheries Sector in Argentina’ United Nations, 2002.
Eggert and Graeker (n 85) p. 16
