Agreements to Promote Fishery Conservation
and Management in International Waters¹

Eugene H. Buck
Senior Analyst in Natural Resources Policy
Environment and Natural Resources Policy Division
January 5, 1996

96-56 ENR

SUMMARY

Declining fish populations threaten an important food source. Natural catastrophes, pollution, habitat destruction, and overfishing contribute to the depletion of fish stocks. Overexploitation of fishery resources often occurs when management allows expanding and increasingly efficient fishing fleets to continue harvesting dwindling supplies.

International law acknowledges the right of states to exploit fishery resources in international waters. However, the 1958 Geneva Convention on the High Seas requires that such practices be conducted in consideration of other states' interests, including a basic obligation to cooperate in the conservation and management of living marine resources. However, the absence of formal regulations for fishing in international waters has encouraged states to exploit living marine resources without considering the sustainability of their catch quotas. Cooperative efforts to conserve fishery resources often were circumvented or not enforced.

As fish stocks have diminished, the international community has recognized that several issues needed to be addressed. These included the practice of reflagging fishing vessels and the management of straddling and highly migratory fish stocks. The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas promotes sustainable international fisheries by addressing fishing vessel reflagging. The accountability principles outlined in this Reflagging Agreement are the cornerstones of a further 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. This second Agreement creates a framework within which regional arrangements are to be developed to cope with conservation and management concerns, relying on international technological and scientific cooperation. A non-binding Code of Conduct for Responsible Fisheries, developed by the United Nations Food and Agriculture Organization (FAO), represents the culmination of these efforts.

All of these recently negotiated agreements extend provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to promote better international fishery conservation and management. Through these agreements, the United States has an opportunity to ratify and implement several less-controversial provisions of UNCLOS. The United States has already implemented the Reflagging Agreement through Title I of P.L. 104-43. The Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was signed by the United States on December 4, 1995, and will soon be transmitted to the Senate for advice and consent.

CONTENTS

INTRODUCTION
REFLAGGING AGREEMENT
-- Circumstances Surrounding International Discussion
-- Intended Goals of the Agreement
-- Implications
AGREEMENT RELATING TO THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS
-- Circumstances Surrounding International Discussion
-- Provisions of the Convention
-- -- General Provisions
-- -- Conservation and Management Measures
-- -- Mechanisms for International Cooperation
-- -- Non-Members and Non-Participants
-- -- Duties of Flag States
-- -- Compliance and Enforcement Requirements of Developing States
-- -- Dispute Settlement
-- -- Additional and Final Provisions
-- Implications
CODE OF CONDUCT FOR RESPONSIBLE FISHERIES
-- Circumstances Surrounding International Discussion
-- Principles of the Code
-- -- Fishery Management
-- -- Fishing Operations
-- -- Aquaculture
-- -- Coastal Area Management
-- -- International Trade Practices
-- Implications
ENDNOTES

INTRODUCTION

Declining fish populations threaten an important food source. Natural catastrophes, pollution, habitat destruction, and overfishing contribute to the depletion of fish stocks. Overexploitation of fishery resources often occurs when management allows expanding and increasingly efficient fishing fleets to continue harvesting dwindling supplies. (2) Although prevalent, overexploitation is not universal and its extent varies among areas, species, and fisheries.

International law acknowledges the right of states to exploit fishery resources in international waters. However, the 1958 Geneva Convention on the High Seas requires that such practices be conducted with "reasonable regard to the interests of other states in their exercise of the freedom of the high seas." (3) The liberties recognized are not without responsibilities, including a basic obligation to cooperate in the conservation and management of living marine resources. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) (4) was a comprehensive international effort to outline what these responsibilities might be. The United States has entered into numerous fishery agreements with the international community to regulate or prohibit commercial fishing. (5) However, most of the earlier agreements dealt with how the United States would cooperate with international goals through improved management of fisheries within waters under U.S. jurisdiction.

Despite these international agreements, fish stocks continued their decline and coastal states protested that current protection was inadequate and that several issues needed to be addressed. The Mexican Government, recognizing the urgent need to strengthen fishery management and reduce the size of fishing fleets, organized an international conference in consultation with the United Nations Food and Agriculture Organization (FAO). The International Conference on Responsible Fishing, held in Cancun, Mexico, from May 6-8, 1992, heightened global awareness about the predicament facing many fish stocks, and was the culmination of many years of effort. (6) The primary objective of the Conference was to attain international consensus on the need to establish a code of conduct to promote responsible fishing. Such a code would provide a framework to initiate an international process for ensuring the viability of the world's fisheries. The Declaration, adopted at conclusion of the Conference, called for the adoption of effective fishery planning and management standards incorporating improved scientific knowledge, minimal waste and bycatch, environmental protection, and international cooperation. Priority matters viewed as needing specific and immediate attention included the practice of reflagging fishing vessels and the management of straddling and highly migratory fish stocks to cope with increasing conservation and management concerns related to fishing in international waters.

Various international conferences and resolutions, including the Declaration of Cancun, voiced the need to curb the practice of reflagging. Agenda 21, adopted June 14, 1992, by the United Nations Conference on Environment and Development (UNCED), called upon states to take effective action to deter such reflagging. In response to these calls, the Agreement to Promote Compliance With International Conservation and Management Measures by Fishing Vessels on the High Seas -- the Reflagging Agreement -- was adopted in November 1993.7 And in August 1995 after six intensive negotiating sessions, an Agreement for the Implementation of the Provisions of the United Nations Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was concluded. This second Agreement provides a framework for negotiating specific regional agreements to guide exploitation of the heretofore minimally regulated fishery resources in international waters.

REFLAGGING AGREEMENT

Circumstances Surrounding International Discussion

Despite measures intended to ensure the viability of fish populations in international waters, the health of certain fish stocks has continued to decline. Although states willingly entered into conservation and management agreements, some members took actions to circumvent restrictions that international organizations placed on fishing fleets.

Fishing vessels formerly flying the flag of a state(8) participating in an international fishery organization increasingly reflagged, or re-registered, with non-member states. This action permitted a fishing vessel to evade international fishing restrictions as soon as the vessel transferred to operate under the authority of a country not bound by the measures. For example, to avoid the regulations of the North Atlantic Salmon Conservation Organization (NASCO), some European vessel owners went to flag-of-convenience states such as Poland (since Poland was not a member of NASCO), reflagged their vessels, and participated in regulated fisheries contrary to the provisions of the 1982 Convention for the Conservation of Salmon in the North Atlantic Ocean. Fishing vessels from several Asian nations also sought reflagging as a means to avoid regulation. Additionally, newly built fishing vessels were flagged directly under nations that were not party to multilateral fishery organizations. Also, flagless vessels fished in international waters without authorization from any state. These activities diminished the effectiveness of international fishery management organizations.

Intended Goals of the Agreement

The Agreement to Promote Compliance With International Conservation and Management Measures by Fishing Vessels on the High Seas -- the Reflagging Agreement -- was adopted in Rome by consensus of the FAO Conference on November 24, 1993. This Agreement is based on Article 91 of UNCLOS, which obligates flag states to ensure that a genuine link exists between themselves and the vessels they register. The UNCLOS Article was intended to prevent reflagging or unjustified registration with non-member states, but has not achieved this result. The 1993 Agreement strengthens the general strictures of UNCLOS to improve the effectiveness of multilateral fishing organizations. The Agreement is designed to bring fisheries in international waters under greater control. In addition to assuring flag states' compliance with vessel registration duties, the Agreement dictates that party states maintain records of their fishing vessels operating in international waters and report pertinent information regarding the activities of their registered vessels to FAO. Such reporting will increase public knowledge of fishing in international waters. Yet, while Article 3(8) of the Agreement charges the Parties to assume enforcement responsibilities, it lacks clear guidelines. The Agreement will enter into force on the date that the Director-General of FAO receives the twenty-fifth instrument of acceptance. As of December 21, 1995, FAO had received eight instruments of acceptance.

Implications

The Reflagging Agreement establishes the basis on which fishing in international waters is to be conducted, promoting the goal of conserving and managing living marine resources. The United States, as a member of many international fishery organizations, could benefit significantly from the Agreement. The relatively well-regulated U.S. commercial fishing industry supports the Agreement, since it perceives its foreign counterparts as poorly governed. The Agreement supports and complements existing regional agreements to which the United States is a Party, making them more effective by discouraging circumvention by other member states. Although the Agreement cannot assure compliance by non-member states, it encourages their submission. Concern remains that some states will refuse to comply with the Agreement, and that flagless vessels may continue to plague management efforts .

President Clinton transmitted the Reflagging Agreement to the Senate on April 15, 1994, for advice and consent. The Senate approved the Agreement on October 6, 1994. (9) on November 3, 1995, President Clinton signed the Fisheries Act of 1995 (H.R. 716) as P.L. 104-43, with Title I containing provisions to implement the Reflagging Agreement. With implementing legislation enacted, the United States can formally ratify the Agreement.

The Reflagging Agreement may have little budgetary impact for the United States. The Congressional Budget Office (CBO) estimated that implementing the Reflagging Agreement will not require any additional financial expenditures for the United States. The costs of reporting U.S. fishing activities in international waters to the FAO are considered part of the normal operations of the Department of State. (10) The enforcement costs of the Agreement similarly will be part of the standard operating budget of the U.S. Coast Guard. (11) The National Marine Fisheries Service (NMFS) will be the Federal agency responsible for licensing U.S. fishing vessels operating in international waters (beyond U.S. jurisdiction). Despite the CBO cost estimate, NMFS might anticipate new expenses associated with the additional permitting requirements and responsibilities for monitoring fishing in international waters.

AGREEMENT RELATING TO THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS

Circumstances Surrounding International Discussion

Management of straddling fish stocks (SFS) (12) and highly migratory fish stocks (HMFS) (13) has remained elusive. These species exist both within and beyond states' exclusive economic zones (EEZs). (14) Since fish are generally exploited wherever economically feasible throughout their range, management efforts within EEZs and in international waters must be complementary. Prior to recent negotiations, management efforts in these two zones often have been incompatible. Excessive fishery exploitation in international waters is one factor frustrating sustainable use management efforts within states' EEZs. The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks convened April 19, 1993, in New York City to begin work on an international convention to address these concerns.

This Conference was an outgrowth of a series of international declarations concerning the necessity of addressing the conservation and management of SFS and HMFS. As early as 1982, UNCLOS recognized that states fishing in international waters needed to seek agreement on the management of SFS (Article 63) and HMFS (Article 64). For a decade, the issues went unaddressed, intensifying the severity of the situation. The 1992 Declaration of Cancun urged the FAO to consider the issues plaguing fisheries operating in international waters, including the overexploitation of SFS and HMFS. Additionally, UNCED avowed in 1992 that:

States should take effective action, including bilateral and multilateral cooperation, where appropriate at the subregional, regional and global levels, to ensure that high seas fisheries are managed in accordance with the provision of the United Nations Convention on the Law of the Sea. In particular, they should:

Convene, as soon as possible, an intergovernmental conference under United Nations auspices, taking into account relevant activities at the subregional, regional and global levels, with a view to promoting effective implementation of the provisions of the United Nations Law of the Sea on straddling stocks and highly migratory stocks. The conference, drawing, inter alia, on scientific and technical studies by FAO, should identify and assess existing problems related to the conservation and management of such fish stocks, and consider means of improving cooperation on fisheries among states, and formulate appropriate recommendations. The work and the results of the conference should be fully consistent with the provisions of UNCLOS, in particular the rights and obligations of coastal states and states fishing on the high seas. (15)

The United Nations General Assembly adopted Resolution No. 47/192 on December 22, 1992, establishing the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks.

The Conference consisted of six sessions over a period of two years. The last session, held July 24 - August 4, 1995, resulted in 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. The Agreement was opened for signature on December 4, 1995, and will remain open for 12 months. Twenty-six nations, including the United States, signed the Agreement of the day it was opened for signature.(16) The Agreement will enter into force 30 days after the United Nations Secretary-General receives the thirtieth instrument of ratification, acceptance, approval, or accession.

Provisions of the Convention

The initial goals for the United Nations Conference included identifying and assessing existing problems related to the conservation and management of SFS and HMFS, considering means of improving fishery cooperation among states, and formulating appropriate recommendations. Over the course of negotiations, support grew for creating a binding agreement. The Agreement, reached after fourteen weeks of negotiations, covers general provisions (Articles 1-4); conservation and management measures (Articles 6-7); mechanisms for international cooperation (Articles 8-16); non-members and non-participants (Articles 17 and 33); duties of flag states (Article 18); compliance and enforcement (Articles 19-23); requirements of developing states (Articles 24-26); dispute settlement (Articles 27-32); and additional (Articles 34-36) and final provisions (Articles 37-50).

General Provisions

The objective of the Agreement, expressed in Article 2, calls for the implementation of the relevant provisions of UNCLOS to assure long-term conservation and sustainable use of SFS and HMFS. The Agreement aims to preserve and increase the sovereignty of coastal states. The Agreement only applies to the conservation and management of SFS and HMFS beyond areas of national jurisdiction, except as provided in Articles 6 and 7.

Conservation and Management Measures

To ensure sustainable fisheries in international waters, the Agreement decrees that states should act to promote optimum utilization. (17) Management schemes should be based on the best scientific information available to maintain a maximum sustainable yield (18) considering environmental and economic factors. The Agreement calls for considering holistic ecosystem preservation and, under those provisions, minimizing pollution, waste, and bycatch. It also espouses protecting marine biodiversity and eliminating overfishing and excess capacity. The Agreement requires states to have their commercial fishing vessels accurately collect and share data. (19) States must also promote scientific research and technological advances designed to help achieve the Agreement's objective. Under this Agreement, states assume a much greater responsibility for effective monitoring, control, and surveillance of fishing to implement and enforce conservation and management efforts in international waters.

The Agreement mandates a precautionary approach in designing and implementing conservation and management schemes, encouraging states to act judiciously and conservatively when information is uncertain, unreliable, or inadequate. However, the absence of adequate scientific information is not to be used as a reason for postponing or failing to take conservation and management measures. The precautionary approach encourages management organizations to err on the side of prudence. As opposed to traditional maximum sustainable yield management methods, the inherent flexibility of this approach provides numerous options whereby states may choose to adjust catch quotas in light of new scientific information or to ensure that fishing does not exacerbate damage arising from natural phenomena. (20)

Article 7 of the Agreement emphasizes the need for compatible conservation and management measures across jurisdictions with regard to SFS and HMFS. Complementary efforts to conserve these stocks within coastal state EEZs and adjacent international waters are essential. If compatible measures cannot be reached, the Agreement provides that states may invoke dispute settlement procedures. Until states resolve matters, they must enter into practical provisional agreements that protect the resource by preventing excessive exploitation.

Mechanisms for Internationalation Cooperation

The Agreement calls for states to cooperate in establishing regional and subregional fishery management organizations to ensure SFS and HMFS are preserved. When creating new management organizations, their relationship to existing fishery management organizations must be defined. Within a new organization, fishery access is to be limited to member states of any existing regional organization and any additional states that participate in the new arrangements. States must agree on the managed stocks and areas, and also determine how they will obtain scientific advice. (21) Article 10 of the Agreement outlines the need for consensus on issues such as participatory rights, allowable catch allocation, data collection standards, and decision-making procedures. (22) Organizations should distribute participatory rights based on the condition of fish stocks, the respective interests and fishing patterns of new and existing member states, (23) the needs of communities dependent on fishing the stocks, and the interests of developing states. The Agreement aims to assure that the activities of regional and subregional fishery management organizations are public knowledge. Entering into the Agreement obligates states to cooperate in strengthening existing organizations and ensuring that their fishing vessels collect data to bolster scientific research. Pursuant to Article 7, Articles 15 and 16 call for states fishing in enclosed or semi-enclosed seas to cooperate with the relevant coastal states in coordinating sustainable management efforts. (24)

Non-Members and Non-Participants

The Agreement seeks cooperation between member and participant states and non-member and non-participant states to deter activities that might undermine conservation and management efforts. States not party to the regional or subregional fishery management organizations must cooperate with the conservation and management efforts of these organizations. Vessels flying the flag of non-members and non-participants cannot or should not fish for SFS and HMFS in areas covered by organized management efforts. Enforcement against non-member states that fail to comply with the strictures of the Agreement parallels disciplinary action proposed for non-compliant member states.

Duties of Flag States

Flag states must ensure that fishing vessels flying their flag comply with the conservation and management strictures established by regional and subregional management organizations. The responsibilities of flag states include licensing fishing vessels that operate in international waters, prohibiting fishing by unlicensed vessels in international waters, and ensuring that vessels flying their flag do not conduct unauthorized fishing within areas of national jurisdiction. The SFS/HMFS Agreement requires that flag states comply with the Reflagging Agreement. Article 18 also reiterates the need for cooperative monitoring, control, and surveillance of all fishing vessels operating in international waters. Most international agreements implemented prior to the SFS/HMFS Agreement require states to monitor and control vessels only within waters under their jurisdiction. The Reflagging Agreement and the SFS/HMFS Agreement represent initial efforts to extend similar obligations into international waters. This portion of the SFS/HMFS Agreement duplicates provisions of the Reflagging Agreement to reinforce its intent. Duplication of the essential conditions binds states that ratify the HMFS/SFS Convention, but may not have ratified the Reflagging Agreement, to the reflagging stipulations.

Compliance and Enforcement

The international cooperation of flag and port states participating in regional and subregional fishery management organizations is necessary to ensure compliance and enforcement of this Agreement. Flag states must enforce the provisions of the SFS/HMFS Agreement independent of any violation's location. It is the responsibility of the flag state to conduct a full investigation of all alleged infractions within 3 days of any incident. Flag states must provide expeditious judicial proceedings and levy sanctions of adequate severity. When fishing vessels flying their flag fall subject to inquiry, flag states must ensure that their vessels comply completely with the requests of the investigating authority. Flag states are to prevent vessels with outstanding sanctions from fishing in international waters. To ensure the effectiveness of subregional, regional, and global management schemes, port states may prohibit landings and transshipments if the catch has been taken in a manner that undermines conservation and management efforts. Flag and port states must identify and report violating vessels to the regional management organizations. Together, flag and port states are authorized to take any action in accordance with international law that might deter vessels from acting illegally. To protect the interests of fishing vessels as well as those of the investigating authority, the basic procedures for boarding and inspection are outlined.

Requirements of Developing States

Optimally, the Agreement seeks to encompass all states involved in the exploitation of SFS and HMFS. It acknowledges the need to support and protect the interests of developing states and, thus, obligates developed states to incorporate developing states as participants in fisheries conducted in international waters as well as their management organizations. Recognizing the burden that implementation of the SFS/HMFS may impose on developing states, the Agreement requires cooperation by developed states to enhance the ability of developing states to conserve and manage fish stocks. Developed states are to provide funds to assist developing states in implementing the SFS/HMFS Agreement, to aid efforts by developing states to ensure compliance with the Agreement, and to permit research participation by scientists from developing states.

Dispute Settlement

Communication and cooperation represent the desired means for settling disputes between and among member states. The Agreement encourages states to avoid disputes, but to institute expeditious dispute-settlement procedures if needed. Pending the settlement of a dispute, Parties are encouraged to adopt practical provisional arrangements. In technical disputes, the Agreement provides for ad hoc panels to promote resolution. Part XV (Settlement of Disputes) of UNCLOS applies to all disputes between states party to the SFS/HMFS Agreement, regardless of whether the states are participants in UNCLOS.

Additional and Final Provisions

When establishing regional conservation and management organizations, states can modify provisions of the Agreement provided that they do not detract from the effective execution of the Agreement's objective and purpose. The states party to the Agreement must fulfill their obligations in good faith. To ensure that the Agreement meets its objective of securing the conservation and management of SFS and HMFS, a review conference is scheduled four years after the Agreement enters into force.

Implications

The SFS/HMFS Agreement reflects the central stewardship goal of the U.S. Magnuson Fishery Conservation and Management Act -- achievement of long-term health and stability of various fisheries, prevention of overfishing, and protection, restoration, and promotion of the fishery through conservation and management measures. (25) If ratified, the Agreement is expected to have a positive effect on those elements of the U.S. fishing industry likely to benefit from stronger regional fishery organizations that are able to enforce their stipulations more effectively. Other U.S. harvesters currently fishing in international waters, however, may experience more restrictions on their fishing as the United States becomes party to new regional management arrangements. Success of the SFS/HMFS Agreement, assuming ratification, will be determined by the ability of regional management organizations to prioritize interests and allocate among them, to implement precautionary management measures, and to ensure proper enforcement.

The precautionary approach to fishery management acknowledges that scientific information cannot always provide definitive answers. Rather than exploiting fish stocks at excessive levels, the precautionary approach espouses conservative catch quotas. This approach offers one way to prevent the collapse of stocks managed with imperfect information. However, the precautionary approach does not preclude adverse factors, such as natural fluctuations in species abundance, that could cause stocks to collapse. Additionally, the precautionary approach does not negate the necessity for increasing and improving scientific research to provide for better understanding of the resource. In the long run, a conservative approach could benefit fishermen by reducing costs and raising the value of their catch.

The overcapitalized condition of the U.S. and other fleets, however, makes implementation of conservative measures difficult due to the severe economic pressures affecting fishermen. For example, prior to the 1994 season, the Mid-Atlantic Fishery Management Council recommended conservative groundfish catch quotas based on the assumption that the actual recruitment rate (26) for summer flounder would be significantly lower than the observed rate. This assumption would have increased the likelihood of meeting the target harvest quota for this depleted stock from 59 percent to 81 percent. However, a fishing industry group successfully challenged the Department of Commerce's regulations implementing the Council's recommendation in court, despite new data showing that the actual recruitment rate was lower than even the conservative rate chosen by the Council. This case, Fishermen's Dock Cooperative, Inc., et al. v. Ron Brown, is currently being appealed in the 4th Circuit Court of Appeals as case no. 95-1002.

The precautionary approach is likely to work best when economic disincentives, such as trade sanctions, encourage adherence to the Agreement's principles. Thus, significant political resolve may be required to implement the new Agreement effectively. The threat of multilateral trade sanctions against non-complying states will encourage compliance.

The conservative, risk-averse management approach mandated by the Agreement will promote the restoration of depleted stocks and ensure that they are maintained at healthy levels. Effective implementation requires continued compliance with the precautionary approach. Initially, this approach will demand reductions in catch quotas and could displace fishermen. Uncompromising action by management agencies will enable fisheries currently closed to eventually be reopened. As stock health improves, increasing catch quotas may permit some harvesters to reenter a fishery as long as the resource can be exploited at a sustainable level without overcapitalization resulting. Alternatively under limited access management, the individual harvests of those remaining in the fishery might be increased. The current inability to make and enforce conservative management decisions exacerbates the existing situation. As fish stocks crash and ecosystems collapse, coastal fishery-dependent communities can be devastated by the loss of livelihood.

The Agreement supports key elements of U.S. fishery law and practice. Any renegotiation of existing international or regional fishery agreements to which the United States is a party would likely be minimal. The Agreement could provide the basis for strengthening some existing arrangements. Prior to the SFS/HMFS Agreement, the United States acted unilaterally under the provisions of the Pelly Amendment to the Fisherman's Protective Act (22 U.S.C. 1978) to impose trade sanctions on nations that undermined international fishery conservation efforts. The Agreement supports multilateral sanctions by regional management organizations against nations violating the provisions of these regional organizations.

The Department of State has determined that the provisions of the SFS/HMFS Agreement are consistent with the Magnuson Fishery Conservation and Management Act, the Marine Mammal Protection Act, and the Endangered Species Act. Therefore, additional legislation will not be required to implement the Agreement. The Department of State projects no additional expenditures will be required upon implementation of the Agreement, since most fisheries exploited by U.S. vessels are already managed by regional organizations. (27) Although U.S. participation in the Northwest Atlantic Fisheries Organization (28) was only recently implemented, funds have already been appropriated. Since no North Pacific tuna management regime exists, the United States plans to enter into such an agreement with Japan. However, no formal management organization would be established under the proposed agreement and no funds for participation would be required. Despite the SFS/HMFS Agreement's mandate for aid to developing countries, the United States does not plan to increase such aid beyond current expenditures. Where U.S. aid is provided, matching participation by developing states encourages increased cooperation. Neither enforcement nor dispute settlement is likely to necessitate additional expenditures. Enforcement costs will be assumed as part of the standard operating budget of the U.S. Coast Guard. Dispute settlement will be conducted under the auspices of the International Tribunal for the Law of the Sea established by the provisions of UNCLOS. The United States already contributes to the Tribunal; thus, no additional contributions are required. (29)

Recently, members of the Inter-American Tropical Tuna Commission (IATTC) agreed to formalize the provisions of the 1992 La Jolla Agreement (30) into a legally binding instrument. The Declaration of Panama, concluded on October 4, 1995, is a binding agreement and one of the first efforts by states to apply the provisions outlined in the SFS/HMFS Agreement. The Governments of the United States, France, Spain, Mexico and other Latin American states met to reaffirm their commitment to reduce dolphin mortality in the eastern tropical Pacific Ocean yellowfin tuna fishery. The provisions of the Declaration represent a compromise between the goals of the tuna industry and the ideals espoused by environmental organizations. The measures to conserve tuna and dolphins proposed by the Declaration are based on a stringent application of the precautionary approach suggested in Annex II of the SFS/HMFS Agreement. The Declaration of Panama is designed to make the fishing practices of different states more compatible. The Declaration is arguably beneficial for the United States since it requires other states to achieve higher standards for dolphin protection while stringent U.S. sanction requirements (which were controversial with the General Agreement on Tariffs and Trade, now the World Trade Organization) will be eased. (31)

CODE OF CONDUCT FOR RESPONSIBLE FISHERIES

Circumstances Surrounding International Discussion

The Code of Conduct for Responsible Fisheries was developed by the FAO Secretariat upon the recommendation of the 1992 Declaration of Cancun. To facilitate consideration of the draft Code, the FAO organized a Technical Consultation on the Code of Conduct for Responsible Fishing, held in Rome, Italy, from September 26 to October 5, 1994. On October 25, 1995, the text of the Code was adopted by the twenty-eighth session of the FAO Conference. The Code establishes voluntary guidelines and international standards of behavior for responsible fishing practices that will ensure the conservation of aquatic resources. The provisions of the Code are consistent with UNCLOS; Agenda 21, Chapter 17 of UNCED; the Reflagging Agreement; and the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. Yet, the Code addresses many diverse aspects of fisheries, covering areas not encompassed by the previous agreements, such as coastal zone management, aquaculture, and international trade.

Principles of the Code

While most of the Code reiterates the calls for holistic preservation of the aquatic ecosystem, it extends and strengthens the provisions of certain conservation efforts. The non-binding nature of the Code allows it to recommend more stringent approaches to conservation issues.

Fishery Management

The Code (Article 6.1.2) states that short-term considerations should not impede the long-term objectives of conservation management efforts. To ensure the success of management efforts, the Code advises that long-term objectives be translated into management action. It advocates the economic viability of stock exploitation and the avoidance of overcapitalization. The Code calls for the establishment of mechanisms for reducing fishing vessel capacity to acceptable levels where overcapacity and overcapitalization exist. When submitting data records to the FAO, the Code suggests that vessel operators report capital investments and operating costs.

Fishing Operations

Under the Code, flag states are encouraged to ensure compliance with appropriate safety requirements as well as to promote access to insurance coverage for fishing vessels. Port states are to provide safe and environmentally sound harbors and landing places. Visiting fishing vessels should adhere to internationally accepted minimum standards of health and work safety. The Code suggests that states promote adoption of technology for the best use and care of retained catch. Additionally, environmental impact assessments of gear are advised, including resulting habitat disturbance and the consequences of gear loss and abandonment. The Code encourages states to protect both the atmosphere and the aquatic environment. Offshore structures should be removed under standards and guidelines approved by competent fishery authorities. Research addressing the viability and safety of artificial reefs and fish aggregation devices is endorsed.

Aquaculture

The Code urges states to establish a framework for the promoting responsible aquaculture development. This responsibility includes initiating regular oversight and review to ensure minimal adverse impacts and ecological change. States should implement international codes of practice to ensure genetic diversity of the farm stocks and prevent introduction of non-native species. Responsible aquaculture should be developed in areas of national jurisdiction and transboundary aquatic ecosystems.

Coastal Area Management

Unlike the other Agreements, the Code discusses fisheries within national jurisdictions. States should adopt practices to achieve sustainable fisheries in coastal ecosystems, considering economic, social, and cultural factors. The Code calls for the promotion of the precautionary approach for coastal area management and encourages multidisciplinary management research. Cooperation with neighboring states to coordinate management efforts in adjacent coastal areas is encouraged.

International Trade Practices

The Code promotes responsible use of fish. Provisions advocate that states adopt appropriate measures to protect consumer health, ensuring that consumers receive safe, wholesome, and unadulterated fish and fishery products. Quality assurance standards should be established and applied throughout the industry. States also should cooperate to establish fair and equitable international trade practices that do not jeopardize the sustainable use of living aquatic resources. This includes eliminating market barriers, including tariffs and quotas, and simplifying trade laws without distorting their effectiveness. The Code encourages periodic review of laws and regulations to determine whether the conditions that gave rise to their introduction continue to exist.

Implications

When developing the Code, the FAO examined the conservation efforts of states with successful management schemes. The FAO provided a forum for international discussion and established the Code as a guide for effective management. The non-binding nature of the Code allowed for a broad-based text, with provisions that not all states support. Rather than striving for an enforceable agreement, the FAO generated the Code as a template from which states can draw when developing national fishery policy or regional management agreements. Since some provisions may contradict U.S. policy, (32) the United States probably would not support a binding agreement. Rather, the Code may represent a useful resource from which to borrow language when designing regional management organizations. (33) In the future, the Code may be used as a leveraging tool by states negotiating to establish or restructure regional management arrangements. For example, the United States may face pressure from Canada to more seriously consider the precautionary approach and curb the harvest rates in the southeast Alaska chinook salmon troll fishery.

Endnotes

1. David E. Joneschild, B.S. graduate of Duke University, researched and prepared a draft of this report under the supervision of Eugene H. Buck, Senior Analyst in Natural Resources Policy.

2. Buck, Eugene H. Overcapitalization in the U.S. Commercial Fishing Industry. CRS Report 95-296 ENR. Feb. 22, 1995. 19 p.

3. Convention of the High Seas, Article 2(2), April 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82.

4. For further information, see: Buck, Eugene H. United Nations Convention on the Law of the Sea: Living Resources Provisions. CRS Report 95-4 ENR. Dec. 19, 1994. 6 p.

5. Buck, Eugene H. Living Aquatic Resource Laws and Treaties: Reference Guide. CRS Report 95-174 ENR. Jan. 19, 1995. 29 p.

6. Miles, Edward L., and William T. Burke. "Pressures on the United Nations Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflicts- The Problem of Straddling Stocks." Ocean Development and International Law, v. 20 (1989): 343-357.

7. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas: Message from the President of the United States. Senate Treaty Document 103-24. p. V.

8. Shipowners are required to register their vessels with a state. Once registered, the vessel flies the flag of that state, and that state regulates the ship's activities.

9. Congressional Record, p. S14467.

10. Personal communication with William E. Dilday, Office of Fishery Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, on September 21, 1995.

11. Personal communication with Commander Vince O'Shea, United States Coast Guard (Fisheries Enforcement), on September 21, 1995.

12. Straddling stocks are distributed across one or more jurisdictional boundaries. The Aleutian Basin stock of Alaska pollock, for example, is a straddling stock, occurring in the EEZs of both the United States and the Russian Federation as well as in the international waters in the central Bering Sea, commonly referred to as the Donut Hole.

13. Highly migratory fish stocks are those which migrate large distances, often crossing several national boundaries as well as inhabiting international waters. Examples include tuna and billfish, but exclude anadromous species such as Pacific salmon. A list of highly migratory species is presented in Annex I of UNCLOS.

14. The EEZ was established by UNCLOS to equalize the rights of individual coastal States to exploit the resources and to protect the marine environment off their coasts. Article 55 of UNCLOS defines the EEZ as an area beyond and adjacent to the territorial sea. Coastal States exercise sovereign rights for exploring and exploiting as well as conserving and managing EEZ natural resources (Article 56). According to Article 57, the seaward limit of the EEZ can extend no farther than 200 miles from the baseline from which the breadth of the territorial sea is measured. An EEZ for the United States was proclaimed by President Reagan on March 10, 1983 (Presidential Proclamation 5030).

15. United Nations Conference of Environment and Development. Agenda 21, Chapter 17. "Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of Their Living Resources." Paragraphs 17.49 and 17.49(e). June 14, 1992.

16. Although Japan, Poland, South Korea, Spain, Russia, and Taiwan account for 90 percent of the world's fish harvest from international waters according to FAO, of these only Russia has signed the Agreement

17. Subsequent language in the Agreement suggests that "optimum utilization" encompasses biological, economic, and social concerns. Balancing these interests may be contentious because they sometimes conflict. Thus, optimum utilization represents a compromise among concerns.

18. Despite being a somewhat dated term, "maximum sustainable yield" is used in the Agreement. Today, "optimum yield" is more commonly used, to include economic and social considerations. Maximum sustainable yield normally encompasses only biological factors.

19. The requirements for collecting and sharing data are discussed in Annex I of the Agreement. These requirements aim to remedy the inadequate collection and sharing of data that precluded an accurate understanding of the impacts of fishing and stymied stock assessments in the past. For the United States, section 303(d) of the Magnuson Fishery Conservation and Management Act authorizes the Secretary of Commerce to release data in "any aggregate or summary form which does not directly or indirectly disclose the identity or business of any person."

20. Guidelines for application of the precautionary approach are discussed in Annex II of the Agreement. See also Garcia, S.M. The Precautionary Approach to Fisheries with Reference to Straddling Fish Stocks and Highly Migratory Fish Stocks. FAO Fisheries Circular No. 871. 1994. 76p.

21. For examples of the benefits and liabilities of operating under such a regional agreement, see: Buck, Eugene H. Atlantic Bluefin Tuna: International Management of a Shared Resource. CRS Report 95-367 ENR. Mar. 8, 1995. 26 p.

22. Although the Agreement does not specify either unanimous or majority consent, the tendency has been toward using majority consent to prevent lone states from blocking management decisions. If consensus cannot be reached, conflicts will be resolved as outlined in the "Dispute Settlement" section below.

23. Considering new member state interests or those of states wishing to join a regional management organization encourages these states to responsibly participate in the fishery. Limiting participation to only existing members may result in illegal fishing by non-members with little regard for management efforts.

24. The United States already has demonstrated a commitment to sustainable fishery resource conservation and management for enclosed areas beyond national jurisdiction. These efforts include the multilateral Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (Washington, 1994) and domestic legislation such as the Sea of Okhotsk Fisheries Enforcement Act of 1995 (Title V of P.L. 104-43).

25. 16 U.S. Code 1853(a)(1)(A)

26. Recruitment rate is the rate at which additional individuals enter a population or some segment thereof, usually through reproduction, growth (allowing individuals to enter that portion of a population of harvestable size), or immigration.

27. Personal communication with William E. Dilday, Office of Fishery Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, on October 3, 1995.

28. Buck, Eugene H. Northwest Atlantic Fisheries Organization. CRS Report 93-324 ENR. Mar. 17, 1993. 4 p.

29. Personal communication with William E. Dilday, Office of Fishery Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State on October 5, 1995.

30. Agreement to Reduce Dolphin Mortality in the Eastern Pacific Tuna Fishery, La Jolla, 1992; entered into force on April 23, 1992. Participating states include the United States, Spain, Mexico, and other Latin American states.

31. For further information, see Buck, Eugene H. Tuna and the GATT. CRS Report 91-666 ENR. Dec. 12, 1991. 7 p. Bills to modify U.S. regulations and implement the Declaration of Panama have been introduced in the 104th Congress in both the House (H.R. 2179) and Senate (I. 1420).

32. In existing form, the language concerning trade and the precautionary approach may differ from U.S. policy. If the Code were designed as a binding agreement, the United States would likely require careful consideration of these provisions.

33. Personal communication with Larry Snead, Office of Fishery Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, U.S. Department of State, and Becky Roots, Office of International Affairs, National Marine Fisheries Service, on October 24, 1995.