Abstract
Humans have been consuming seafood since the genesis of Homo sapiens. Today, marine fisheries are the most important source of wild food in the world, providing the primary source of protein for millions of people particularly in developing countries. Yet, marine fisheries are vastly overexploited due to a variety of factors including overcapitalization in the industry, increasing levels of technology, illegal fishing, and reckless harvesting. The collapse of fisheries reflects a double jeopardy for many individuals and communities. In addition to the immediate losses of food resources, there are also associated costs in the form of lost livelihoods for both this generation and future generations. These losses may be particularly acute for developing countries since half of the world’s fish trade is sourced from developing countries. This chapter describes two related phenomena associated with marine fisheries law—overfishing and bycatch—and outlines the existing legal regimes to address these phenomena.
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Notes
- 1.
Marean et al. (2007) (Documenting shell middens dating back 164,000 years containing brown mussels, giant periwinkles, and whelks.)
- 2.
World Health Organization, Global and Regional Food Consumption Patterns and Trends, Available: http://www.who.int/nutrition/topics/3_foodconsumption/en/index5.html (A billion people depend on fish as a primary source of protein).
- 3.
The classic story of a community catastrophe based on the collapse of a fishery is the Grand Banks, Canada cod fishery. Kurlansky M (1997) Cod: A Biography of the Fish that Changed the World, Walker Books.
- 4.
Food and Agriculture Organization, Committee on Fisheries, Sub-Committee on Fish Trade, COFI:FT/XI/2008/3, June 2008: para. 10 (Seafood export value for developing countries is $25 billion per year).
- 5.
See Ross (2012).
- 6.
Garcia (2003), p. 71. The Ecosystem Approach to Fisheries, FAO Fisheries Technical Paper 43.
- 7.
Food and Agriculture Organization (2012), p. 11 (57 % of species are fully exploited and 29.9 % are overexploited).
- 8.
Hilborn and Hilborn (2012), p. 123. (Noting that historical data has not been collected in Asia and Africa but that similar trends are expected in these regions as fishing pressure increases to meet food security demands).
- 9.
Costello et al. (2012).
- 10.
Artisanal fisheries refer to subsistence fishing using smaller vessels, generally serving local markets. Industrial fisheries refer to commercial fishing using a combination of small and large vessels to participate in a global fisheries market.
- 11.
There is no single definition of IUU fishing. There may be a consensus on definition: the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Committee on Fisheries, March 2001 (endorsed by FAO Council June 2001).
- 12.
Joyce (2014).
- 13.
Agnew et al. (2009).
- 14.
UN Office of Drugs and Crime, Transnational Organized Crime in the Fishing Industry (2011), http://www.unodc.org/documents/human-trafficking/Issue_Paper_-_TOC_in_the_Fishing_Industry.pdf.
- 15.
International Labor Organization, Caught at Sea: Forced Labour and Trafficking in Fisheries (2013), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_214472.pdf.
- 16.
See the State of the World Fisheries and Aquaculture 2012. (Food and Agriculture Organization of the United Nations: Rome, Italy, 2012): 10–11 (73 % of all fishing vessels [marine and inland] are registered in Asia, 11 % in Africa, 8 % Latin America and the Caribbean, 3 % North America, and 3 % in Europe. 60 % of these vessels are motorized. Of these motorized vessels, 83 % were shorter than 12 m. On 2 % of the motorized vessels are 24 m or longer).
- 17.
World Wildlife Fund, EU Industrial Tuna Fishing Boats Reaching Quota in a Week is a Sign of Massive Overcapacity, June 9, 2010, http://wwf.panda.org/?193767/EU-industrial-tuna-fishing-boats-reaching-quota-in-a-week-is-sign-of-massive-overcapacity-WWF.
- 18.
National Marine Fisheries Service, Excess Harvesting Capacity in U.S. Fisheries. (2008) Available: www.nmfs.noaa.gov/msa2007/docs/042808_312_b_6_report.pdf.
- 19.
Stockhausen et al. (2012), pp. 90–95.
- 20.
Hilborn and Hilborn (2012), p. 116.
- 21.
Indian Ocean Tuna Commission–2012–WPEB08–13 Status Report on Bycatch of Tuna Gillnet Operations in Pakistan.
- 22.
Anderson (2014), p. 4. Cetaceans and Tuna Fisheries in the Western and Central Indian Oceans (2014).
- 23.
United Nations Convention on the Law of the Sea, December 10, 1982, 1833 U.N.T.S. 3, 397; 21 I.L.M. 1261 (1982).
- 24.
The acronym ABNJ is frequently used for “areas beyond national jurisdiction” by intergovernmental organizations.
- 25.
UNCLOS, Article 61.
- 26.
Food and Agriculture Organization, FAO Technical Guidelines on the Ecosystem Approach to Fisheries Vol. 4(Suppl. 2) (2003): 6. (Ecosystem Approach to Fisheries is defined as an approach that takes into “account the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions” and applies “an integrated approach to fisheries within ecologically meaningful boundaries.”).
- 27.
UNCLOS, Article 62(2).
- 28.
Connor (2001), pp. 151–186. Available at http://www.fao.org/docrep/005/y2498e/y2498e12.gif.
- 29.
UNCLOS, Article 119(1).
- 30.
UNCLOS, Article 118.
- 31.
UNCLOS, Article 87(e).
- 32.
Also McWhinnie (2009).
- 33.
See UNCLOS, Article 64 (“The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex 1 shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone.”) and Article 116 (States have the right for their nationals to engage in fishing on the high seas subject to the rights, duties, and interests of coastal States as defined by Article 64); Bjorndal and Munro (2003).
- 34.
See e.g. Bjørndal and Munro (2003).
- 35.
Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of December 10, 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stock Agreement) 34 I.L.M. 1542 (1995), Article 7(2).
- 36.
Before the WTO, the U.S., in the Shrimp-Turtle dispute alleged since India, Malaysia, Pakistan, and Thailand were failing to use turtle excluder devices in their fisheries, the U.S. could exclude shrimp products from these States. The WTO Dispute Panel disagreed with the U.S. position. India, Malaysia, Pakistan, and Thailand have declined to become parties to the Fish Stocks Agreement.
- 37.
UN Fish Stock Agreement, Annex II(1).
- 38.
Id.
- 39.
See e.g. Indian Ocean Tuna Commission, Resolution 13/10 On interim target and limit reference points and a decision framework (2013).
- 40.
Article III(1).
- 41.
Article III(2).
- 42.
Article VI(1).
- 43.
See FAO Fishery Records Collections, High Seas Vessels Authorization Record, http://www.fao.org/fishery/collection/hsvar/4/en.
- 44.
16 U.S.C. 1822.
- 45.
Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, 29 I.L.M. 1449 (1990).
- 46.
See National Marine Fisheries Service, 2012 Driftnet Report: 7 and 17. http://www.nmfs.noaa.gov/ia/iuu/driftnet_reports/2012_driftnet_report.pdf (In the U.S., reports of drift-netting in the North Pacific were reduced from 98 sightings in 2006 (mostly Japan and Canada) to 1 sighting in 2012 (a United States vessel.)
- 47.
See Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Food and Agriculture Organization (2009).
- 48.
See e.g. Convention for the Conservation of Atlantic Tunas, May 14, 1966, 20 U.S.T. 2887 (creating ICCAT body that sets quotas regularly); Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, 33 U.S.T. 3476. (Creating a Commission to set regular conservation measures).
- 49.
Squires et al. (2013).
- 50.
International Commission for the Conservation of Atlantic Tuna, Resolution 07-07 (2007); Indian Ocean Tuna Commission Resolution 10-06 (2010); Western and Central Pacific Fisheries Commission Resolution 2007-04 (2007).
- 51.
Indian Ocean Tuna Commission Resolution 09-06 (2009); Inter-American Tropical Tuna Commission, Resolution 07-03 (2007); Western and Central Pacific Fisheries Commission Conservation and Management Measure 2008-03 (2008).
- 52.
Code of Conduct for Responsible Fisheries, 28th Session of the FAO Conference on 31 October 1995: Article 1.2.
- 53.
Id. at Article 2.
- 54.
Id. at Articles 6.5 and 6.6.
- 55.
Id. at Article 6.3.
- 56.
Id. at Article 8.4.5.
- 57.
Id. at Article 8.5.1.
- 58.
Id. at Article 11.2.15.
- 59.
International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (2001) Paragraph 8.
- 60.
Id. at Paragraph 3.
- 61.
Flag states are expected to provide oversight for their fishing, transport and support vessels. Id. at Paragraph 48.
- 62.
Id. at Paragraph 16.
- 63.
Id. at Paragraphs 16–24.
- 64.
Id. at Paragraphs 36 and 40.
- 65.
Id. at Paragraphs 25–26.
- 66.
See FAO Fisheries and Aquaculture—IUU National Plan; http://www.fao.org/fishery/ipoa-iuu/npoa/en (Providing plans for Belize, Ghana, South Korea, Argentina, Fiji, Australia, Canada, United States, Chile, Japan, New Zealand; Belize is considered to be a Flag of Convenience state and under recent pressure from the European Union has become active in combatting IUU fishing by its fleet).
- 67.
International Plan of Action for the Management of Fishing Capacity (1999) Paragraphs 7 and 9.
- 68.
Id. at 21.
- 69.
Id. at paragraph 22.
- 70.
Id. at paragraph 31.
- 71.
Id. at paragraph 33.
- 72.
Id. at paragraphs 39–40.
- 73.
See IPOA-Capacity National Plans, http://www.fao.org/fishery/ipoa-capacity/npoa/en (Plans have been submitted by Indonesia, Namibia, and the United States).
- 74.
International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries (1999), paragraph 2.
- 75.
Id. at paragraphs 12, 16, 17, and Technical Note on Some Optional Technical and Operational Measures for Reducing the Incidental Catch of Seabirds in Longline Fisheries (providing specific mitigation techniques such as inter alia weighting longline gear, increasing line sinking rate, setting lines under water, or discharging offal in a manner that does attract seabirds).
- 76.
Also FAO Fisheries and Aquaculture—Seabirds National Plan, http://www.fao.org/fishery/ipoa-seabirds/npoa/en (Providing plans from Argentina, Japan, Canada, Uruguay, South Africa, Brazil, New Zealand, Australia, and the United States).
- 77.
International Plan of Action for the Conservation and Management of Sharks (1999) paras. 2 and 15.
- 78.
Id. at paragraphs 18 and 20.
- 79.
Id. at paragraph 22.
- 80.
FAO Fisheries & Aquaculture—Sharks National Plan; http://www.fao.org/fishery/ipoa-sharks/npoa/en (Including plans from Japan, Argentina, Uruguay, Canada, Seychelles, Malaysia, Ecuador, Australia, Taiwan, United Kingdom and United States); FAO Fisheries & Aquaculture—National and Regional Plans of Actions, http://www.fao.org/fishery/topic/18123/en (Canada, United States, United Kingdom, Malaysia, Taiwan, and Japan are leading shark fishing States).
- 81.
FAO Fisheries & Aquaculture—National and Regional Plans of Actions, http://www.fao.org/fishery/topic/18123/en.
- 82.
Waldman (2014), p. 360.
- 83.
Presidential Memorandum Establishing a Comprehensive Framework to Combat Illegal, Unreported, and Unregulated Fishing and Seafood Fraud (June 17, 2014) http://www.whitehouse.gov/the-press-office/2014/06/17/presidential-memorandum-comprehensive-framework-combat-illegal-unreporte.
- 84.
Department of Commerce, National Oceanic and Atmospheric Administration, Recommendations of the Presidential Task Force on Combating Illegal, Unreported and Unregulated Fishing and Seafood Fraud, Notice and request for Comments, FR Doc. 2014-29628 (December 18, 2014).
- 85.
Id.
- 86.
Parlina (2014).
- 87.
European Union Council Regulation 1005/2008 (September 29, 2008): Chapter II.
- 88.
Id. at Article 38.
- 89.
Magnuson Stevenson Fishery Conservation and Management Act 16 U.S.C. 1802(34).
- 90.
Id. 16 U.S.C. 1851(a)(1).
- 91.
Id. 16 U.S.C. 1853(a)(10).
- 92.
Id. 16 U.S.C 1854 (e)(1).
- 93.
Id. 16 U.S.C. 1854(e)(3).
- 94.
Id. 16 U.S.C. 1854(e)(5).
- 95.
Id. 16 U.S.C. 1854(e)(1).
- 96.
Id. 16 U.S.C. 1854 (i)(2).
- 97.
Id. 16 U.S.C. 1855(c).
- 98.
Id. 16 U.S.C. 1861a(b)(1) and (2).
- 99.
Lindsay (2011).
- 100.
National Oceanic and Atmospheric Agency Fisheries, Final Amendment 7 to the 2006 Atlantic High Migratory Species Fishery Management Plan, August 2014 (Providing for reallocation of Atlantic bluefin tuna quotas; regulating the pelagic longline fishery with individual quotas and gear usage, requiring pelagic longline vessels and purse seines to report via Vessel Monitoring System, and requiring automated catch reporting system for general and harpoon fishing entities).
- 101.
Joyce (2014).
- 102.
Telesetsky (2014), pp. 132–142.
- 103.
Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (http://www.ffa.int/system/files/Niue%20Treaty_0.pdf) (Negotiated by Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and Western Samoa).
- 104.
Roberts (2007), p. 132 (Quoting from G.L. Alward (1932) The Sea Fisheries of Great Britain and Ireland).
- 105.
Hilborn and Hilborn (2012), pp. 110–111. (Emphasizing that ecosystem will experience change for sustainable fishing practices, but only overfishing “completely transforms the ecosystem.”).
- 106.
Cunningham (2013). (Describing a program where fishers invest approximately $1 million to protect rights to harvest lobsters).
- 107.
Telesetsky (2013).
- 108.
World Bank (August 6, 2014) Ocean Partnerships for Sustainable Fisheries and Biodiversity Conservation- Models for Innovation and Reform, Report No. PAD 962, Annex 6: Regional Sub-Project for a Global Think Tank and Tuna Fisheries in the Eastern Pacific Ocean.
- 109.
Achieving Maximum Economic Yield (MEY), which is calculated based on cost of fishing versus value of catch, requires less fishing effort than fishing to the level of Maximum Sustainable Yield (MSY).
- 110.
Holmes et al. (2014), p. 70.
- 111.
Id. at 71.
- 112.
Department of Commerce, NOAA (November 18, 2014): Fisheries of the Exclusive Economic Zone off Alaska; Monitoring and Enforcement; At-Sea Scales Requirements, Federal Register Volume 79, Number 222: 8610-68619.
- 113.
Oceana (2013) (87 % of the samples labeled as snapper and 59 % of those samples labeled as tuna were mislabeled).
- 114.
The Fish Site (December 6, 2013) Exemption on Fishing Vessels Having IMO Identification Numbers Lifted, http://www.thefishsite.com/fishnews/21963/exemption-on-fishing-vessels-having-imo-identification-numbers-lifted (Indicates the two RFMOs: International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) require for its members to have unique vessel identification numbers).
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Telesetsky, A. (2017). Overfishing and Bycatch. In: Steier, G., Patel, K. (eds) International Farm Animal, Wildlife and Food Safety Law. Springer, Cham. https://doi.org/10.1007/978-3-319-18002-1_13
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