Dr Mercedes Rosello

Abstract

This study is a brief reflection upon the features of the Central Arctic Ocean Fisheries Agreement with regard to indigenous stakeholders, and the potential effects of their uncritical inclusion in the broad interpretive and compliance paradigm known as illegal, unreported and unregulated (IUU) fishing. Developed from a vulnerability perspective, the study highlights the need to take into account interdependencies between fragile ecosystems and vulnerable human communities. The authors formulate a normative pathway for the regulation of Arctic fisheries that explicitly integrates legal frameworks established for the protection of indigenous peoples and their rights, promoting a nuanced, legally informed and inclusive understanding of the IUU fishing paradigm.

This chapter explores the meaning and features of illegal, unreported, and unregulated (IUU) fishing as a governance concept, from the fishery management context in which it was first conceived, to more recent associations with criminal activity. The nature of IUU fishing as a security concern is established by reference to its impacts on human communities, as well as its operational synergies with crime. The activity patterns and regulatory weaknesses that enable IUU fishing and related criminal activities are examined, with a focus on the role of States, as well as international organisations. The degree to which global and regional policy trends address such weaknesses is outlined, and significant innovations are identified, before concluding with some reflections on the potential of current approaches to respond to emerging maritime security concerns.

Doctrinal arguments and two examples illustrating the practice of the Spanish courts highlight two risk factors that can undermine the effectiveness of enforcement actions by States in matters involving high seas fishing. Firstly, the absence from treaty law of clearly defined conduct standards and unequivocal criminal enforcement routes to provide a positive basis for the exercise of extraterritorial criminal jurisdiction. Secondly, the transcendence of individual rights and constitutional principles enshrined in domestic constitutional and European Union law and safeguarded by national courts, and their potential for tension with international fisheries conservation objectives. Through a brief analysis of those tensions, the article leads to a reflection on the relevance of legal security considerations to inform the development of international and regional legal frameworks and decision-making mechanisms for addressing high seas illegal and unregulated fishing.

Fisheries is a topic in national and international forums in a post-Brexit world. Prima facie, the fishing industry is a niche area that has become high profile following the Brexit referendum. A number of fisheries-relevant issues that branch out from the Trade and Cooperation Agreement (TCA) of 2020 remain unresolved, especially discords over “quotas” and “access” that have taken those matters to shaky heights. For a better comprehension of the implications and challenges faced by coastal and fishing communities, this chapter captures and consolidates opinions of experts from academia and industry partners. The objective is to shed light on ideas and emerging findings, spear through some of the legal issues and highlight best practices that will altogether facilitate future constructive dialogues between stakeholders and policymakers.

This chapter illustrates the international legal framework applicable to coastal State in fisheries control and enforcement. The content of this chapter shows how the transition undertaken by the UK from EU Member States and Common Fisheries Policy participant to independent coastal State does not extricate it from a complex framework of international commitments, which specify what may be considered illegal fishing, and shape and condition control and enforcement responses. It illustrates, using the case study of Rockall, the complex framework of international legal commitments in fisheries enforcement that still apply to the UK. Consequently, the UK is unlikely to remain impermeable to legal evolution in the EU in all matters involving fisheries governance, including compliance, control and enforcement.

Abstract

The conservation of fish stocks in the world’s exclusive economic zones (EEZs), which collectively harbour the vast majority of marine-living resources, is the primary responsibility of coastal States. As the effects of failures by coastal States to protect those stocks from the impacts of illegal, unreported and unregulated (IUU) fishing may extend beyond domestic boundaries, this paper questions whether and how coastal States may be made accountable in respect of their regulatory deficits. With the proliferation of non-legal conduct rules to guide the regulatory role of States and their agencies, non-judicial mechanisms have the potential to foster coastal State stewardship of domestic fisheries. Outlining a number of international, transnational and domestic approaches, this paper gives consideration to the opportunities and limitations they present in order to strengthen coastal State accountability for IUU fishing control deficits.

Attaining human security in fisheries is a complex but important objective that international law has so far failed to conquer. The implementation of international agreements, including for the purposes of recognising human rights, is instrumental for the protection of fisher security. However, the literature warns of a risk of ‘disordered’ legal pluralism, particularly where rules of diverse national origin constellate in the regulation of an internationally shared fishery, resulting in ineffectual protections. Enquiry into specific disorder features is desirable to scope and address legal weaknesses and asymmetries in detail. A legal security lens can offer a useful approach to guiding such enquiry, as it incorporates a double focus on clarity and systematicity on the one hand, and on the presence and implications for public authority of protected individual rights on the other.

This article outlines recent events concerning the conservation and management trajectory of a highly migratory shark species, the shortfin mako (Isurus oxyrinchus), in the North Atlantic, where it has been routinely captured recreationally and as part of commercial fishing operations alongside other species. Noting recent warnings concerning the high mortality of the species in this ocean region, and the threat of imminent population collapse, this article sets out a number of applicable law of the sea provisions, and carries out an evaluation of relevant measures for target and incidental capture species, discussing their applicability to the mako fishery. It also presents an analysis of regional and global governance actions taken to date by the international community and by individual actors, noting a number of shortfalls, and outlining potential responses.

The extent to which flag States are bound by the conservation rules of regional fishery management organisations is an important question in the quest to reduce unregulated fishing. The European Union implemented a trade suspension against Cambodia under Council Regulation 1005/2008, in response to unregulated fishing by Cambodian vessels in high seas areas managed by regional fishery management organisations. Limitations in the arguments underpinning the decision evidence the flaws of unregulated fishing as a legal concept, underlining the need for it to be appropriately interpreted and contextualised in the international legal framework. Clarity on the differences between conventional and customary sources of international legal obligation, and their implications for State consent, should guide the implementation of the Regulation to maximise the normative potential of resulting practices.

The European Union possesses constitutional characteristics that have permitted a unique approach to the organization and exercise of public authority in matters of marine fisheries regulation. The resulting system, known as the Common Fisheries Policy (CFP), is underpinned by the international law of the sea and other multilateral legal frameworks, yet also contains significant special features. Through extensive legislation and successive reforms the CFP has evolved into a complex body of principles, rules and institutions, growing in ambition and sophistication with each iteration. Yet, its success is not only dependent on its capacity for evolution, but also on the stability of its constitutional foundations, and the extent to which it can coherently support the plurality of idiosyncrasies and interests that characterize the Member States and their diverse fishing interests and cultures.

Illegal, unreported and unregulated (IUU) fishing is a widely used designation for a broad range of fishing practices with a common theme: whether illegal or not, they cause damage to marine fish stocks and the human communities that depend on them. Yet, when subjected to thorough analysis, this pragmatic governance tool is revealed in a light that calls for caution against uncritical application. Unwrapping its uneasy relationship with international law, this study is ultimately a qualified defence of the IUU fishing paradigm, but also a practical proposal for its reform. This original book makes a genuine contribution to the international fisheries law and policy literature.

In States with communities governed by legal pluralist systems, poor coordination of the applicable rule frameworks can undermine legal effectiveness. Existing literature on fishery management regulation in Ghanaian small-scale fishing communities also highlights interpretive and enforcement factors that may undermine legal effectiveness. This case study aims to categorise these factors and to evaluate the extent to which the different categories generate a perception of legal insecurity among senior representatives of Ghanaian small-scale fishing communities, as well as whether perceptions vary across participants. The case study sheds light on several insights that might be considered policy-relevant, including an indication that significant perceptual variations exist. Hence, careful cross-community consultation might be needed to clarify which factors might be likely to generate legal insecurity across the different communities, so that appropriate approaches might be devised to strengthen legal effectiveness and reduce legal risk.

This Introduction provides background and context to the papers presented at the multi-disciplinary workshop 'Innovating for Change in Global Fisheries Governance', hosted by the Norwegian Centre for the Law of the Sea (NCLOS) at the Faculty of Law of UiT, The Arctic University of Norway on 14 and 15 September 2023, six of which are published here in this Special Issue.

Clarity enables insight and the ability to make and implement a plan. Nowhere is this more important than when addressing chronic problems that proliferate despite significant efforts to curb them—like illegal, unreported, and unregulated (IUU) fishing. United Nations (UN) narratives make clear that preventing, deterring, and eliminating IUU fishing is an objective of global importance, yet the problem persists. But could a factor in this be a lack of clarity in understanding what IUU fishing is when it comes to specific actions and infractions? And could the World Trade Organization (WTO) help bring about a more accessible way of understanding the problem? This brief argues for this approach and explains how it might be achieved.

Regional fisheries management organisations or arrangements (RFMOs) play an increasingly important role in international fisheries governance. They have multiplied in number, their normative output has increased, and several Memoranda of Understanding now regulate RFMO cooperation in areas of mutual interest. One such area is the exchange of information over so-called illegal, unreported, and unregulated (IUU) fishing activities; including the exchange of IUU vessel listings and related data (cross-listing). This chapter analyses current practices of RFMOs in this regard against the backdrop of the duty to cooperate. The duty to cooperate is fundamental to international environmental law and has been given specific meaning in the context of cooperation through RFMOs. However, little attention has been paid thus far to possible cooperation obligations of RFMOs themselves. This chapter explores the international legal personality of RFMOs and, consequently, the international law obligations that bind them. It asks whether international law confers on RFMOs a general duty to cooperate with other RFMOs over alleged IUU fishing and examines the procedural implications of this issue. Many RFMO constituent agreements reflect the need for cooperation over alleged IUU fishing. It arguably also emanates from customary international law. This chapter also briefly explores whether the practice of cross-listing should be part of RFMOs’ duty to cooperate, concluding that this is undesirable without additional safeguards.

Using the lenses and language of therapeutic jurisprudence, this paper will argue that the rights of pregnant workers are vulnerable in a post-Brexit climate. Whilst the sunset clause from the Retained EU Law Bill, which would have caused all retained EU law to automatically expire at the end of 2023 unless expressly stated otherwise by Ministers, was lifted, the original drafts of the Bill made clear the government’s lack of respect for and interest in protecting workers’ rights (amongst others). Furthermore, despite the abandonment of the sunset, the now legislated Retained EU Law (Revocation and Reform) Act 2023, aiming to deal with all laws that were once of European origin, still gives Ministers wide powers with limited input from Parliament to change EU derived legislation and replace with UK provision. Using an example from employment law, specifically, pregnant workers, this paper will show that the Act is a therapeutic jurisprudence unfriendly bottle as it has the potential to violate positive physical, social, and psychological outcomes. Recognising that these laws are currently vulnerable, we urge the government to keep intact (and potentially enhance) the laws protecting pregnant workers.