High seas fisheries management refers to the governance and regulation of fishing activities in areas beyond national jurisdiction, often referred to as the 'high seas'. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1995 United Nations Fish Stock Agreement (UNFSA) provide the international legal framework for the regulation of fishing activities in areas beyond national jurisdiction.United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS). Available at: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf. Part VII, article 116-120.The United Nations 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 (UNFSA). New York, 4 August 1995. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N95/274/67/PDF/N9527467.pdf?OpenElement The United Nations Fish Stock Agreement delegates responsibility for conservation and management of fish stocks to regional fisheries management organizations (RFMOs) each governing a geographical area of the high seas.United Nations Fish Stock Agreement (UNFSA). Part III, article 8.
Traditionally, most regional fisheries management organizations have focused their conservation and management efforts on sustainably managing harvested fish species to produce the maximum sustainable yield. As pressure on marine ecosystems is rising, and fishing is widely recognized as the main threat to biodiversity in areas beyond national jurisdiction, expectations of the need for RFMOs to integrate a precautionary and ecosystem-based management approach have increased. Some scholars recognize that RFMOs have made vast improvements in adopting conservation measures reflecting the concern for the marine environment and biodiversity. Others find that the practices of RFMOs leave significant governance gaps for biodiversity in areas beyond national jurisdiction.
The negotiations for a new agreement under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (commonly referred to as the 'BBNJ Treaty' or 'Treaty of the High Seas') have led to a debate among scholars and stakeholders about the performance of RFMOs and future options for the governance of high seas fisheries. Some scholars suggest increasing the capacity of RFMOs in light of recent improvements in biodiversity protection. Others point to the need of vesting a new global body with responsibilities traditionally delegated to RFMOs to enhance conservation of biodiversity in areas beyond national jurisdiction.
Background for high seas fisheries management Areas beyond the 200 nautical miles limit of Exclusive Economic Zone (EEZs) of coastal states comprise 61% of the world's oceans. Until the 1950s, areas beyond national jurisdiction were inaccessible for fishing activities, but advancements in the development of fishing technology (e.g., sonars, GPS, freezers) have enabled fishers to exploit the high seas. By 2005, the spatial coverage of global fishing efforts had expanded to include most of the world's oceans. In 2014, data suggested that around 6% of the global fish catch originated from the high seas, and as the world population continues to grow, the demand for fish is on the rise. In 2020, 34,2% of all fished species were being overfished.
The risks of depletion and overexploitation of fish stocks have been concerns for decades. In 2006, unsustainable fishing, unregulated fishing and destructive fishing practices were acknowledged by states in the working group preceding the negotiations of the BBNJ Treaty as the greatest threat to biodiversity in areas beyond national jurisdiction. Besides from the negative ecological impacts on biodiversity and ecosystems, overfishing and depletion of marine resources have negative socioeconomic consequences in terms of food security and jobs for billions of people. The Food and Agriculture Organization of the United Nations (FAO) estimates that overfishing is particularly critical for fisheries resources fished in the high seas.
The fundamental challenge for the sustainable use of resources of the high seas stems from areas beyond national jurisdiction being a 'global commons'. Historically, the high seas have been subjected to the principle of 'freedom of the seas' securing non-appropriation of the high seas and freedom of use for all states. The principle of freedom of the high seas was formalized into international law with the 1982 United Nations Convention on the Law of the Sea (UNCLOS).United Nations Convention on the Law of the Sea (UNCLOS). Part VII, article 87. Freedom of the high seas implies that no state has exclusive rights over the common property resources of the high seas, and no state can prevent other states from exploiting these resources. As a result, the high seas essentially suffer from the tragedy of the commons. Concerns about the threat to marine biodiversity posed by fishing activities have led to the gradual development of a global governance regime for high seas fisheries subjecting the freedom of the high seas to the conditions of international law.
International legal frameworks for high seas fisheries management The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for governance of fishing activities in areas beyond national jurisdiction. As an implementing agreement under UNCLOS, the 1995 United Nations Fish Stock Agreement (UNFSA) sets out the obligations of coastal states and states fishing the high seas in more detail. It also provides regional fisheries management organizations (RFMOs) with a mandate to establish conservation and management measures for their geographical areas of competence. The latest addition to the global ocean governance regime is a new implementing agreement under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the 'BBNJ Treaty') for which negotiations were completed in March 2023. Although the BBNJ Treaty does not have a mandate to impose direct controls on fishing activities, scholars expect that the new agreement will affect the current governance regime for high seas fisheries management.
United Nations Convention on the Law of the Sea (UNCLOS) The rights and duties of states conducting activities in the high seas, including fishing, are governed by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS recognizes the freedom of all states to engage in fishing in the high seas.United Nations Convention on the Law of the Sea (UNCLOS). Part VII, article 116. This right to fishing is linked to the duty of states to cooperate to adopt measures for the conservation and management of the living resources of the high seas through the establishment of regional fisheries organizations.United Nations Convention on the Law of the Sea (UNCLOS). Part VII, articles 117-118. UNCLOS calls for conservation measures for harvested species and their ecosystems. States are obliged to "maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield" and "take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations".United Nations Convention on the Law of the Sea (UNCLOS). Part VII, article 119. In addition, UNCLOS provide a general obligation to "protect and preserve the marine environment".United Nations Convention on the Law of the Sea (UNCLOS). Part XII, article 193. The foundation of Regional Fisheries Management Organizations (RFMOs), including their priorities and mandates, can thus be traced to the obligations of states laid down in UNCLOS.
Although UNCLOS obliges states to conserve and sustainably use marine living resources and protect the marine environment, the articles on "Conservation and Management of the Living Resources of the High Seas"United Nations Convention on the Law of the Sea (UNCLOS). Part VII, articles 116-120. are vague and provide limited practical guidance. Due to the vagueness of UNCLOS and a continuing decline in high seas fish stocks, the UN member states decided to negotiate the 1995 United Nations Fish Stock Agreement (UNFSA) for the purpose of improving the implementation of the existing UNCLOS conservation and environmental protection duties.
United Nations Fish Stock Agreement (UNFSA) The United Nations Fish Stock Agreement (UNFSA) is an implementing agreement under UNCLOS developed to provide practical means for the implementation of the provisions of UNCLOS. The stated objective of the UNFSA is to "ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention."United Nations Fish Stock Agreement (UNFSA). Part I, article 2. 'Straddling stocks' are defined as stocks extending beyond the Exclusive Economic Zone (EEZ) of one or more states into the high seas whereas 'highly migratory stocks' is a specific group of species listed in Annex 1 to UNCLOS, including, for example, tuna species, sailfishes, and oceanic sharks.
The UNFSA places two primary obligations on states in relation to fishing activities in areas beyond national jurisdiction: First, states should control the activities of all fishing vessels flying its flag and, second, states should cooperate within regional fisheries management organizations (RFMOs) which have delegated competence to adopt legally binding measures on their member states. The UNFSA thus empower RFMOs as the primary bodies for high seas fisheries management. In addition, the UNFSA specifies the general structure, functioning and responsibilities of RFMOs.
The inclusion in the UNFSA of the obligation of states to apply a precautionary approach to conservation is characterized in the literature as an important specification of the conservation and management principles of UNCLOS. The precautionary approach involves states erring on the side of caution when scientific information is uncertain, unreliable, or inadequate.United Nations Fish Stock Agreement (UNFSA). Part II, article 6. The UNFSA also provides the basis for an ecosystem-based approach to fisheries management. It includes substantial requirements to assess the impact of fisheries, other human activities and environmental factors on target species and non-target species as well as on their respective associated and dependent species and their environment.
Although the UNFSA does elaborate on the fundamental principles of UNCLOS, it has been criticized for mainly providing guidance and obligations for sustainable management of fish stocks while remaining vague on how to address marine environmental protection in areas beyond national jurisdiction. Scholars have also pointed to the limitation that UNCLOS and UNFSA do not define the exact scope of biodiversity falling under the mandate of RFMOs: The obligation to assess the impacts of fishing on species belonging to the same ecosystem as fished species remains vague due to the ecological complexity of marine ecosystems.
Regional Fisheries Management Organizations (RFMOs) Regional fisheries management organizations (RFMOs) are intergovernmental organizations with a delegated responsibility for fisheries management in areas beyond national jurisdiction. RFMOs have a unique mandate under international law to impose legally binding conservation and management measures (CMMs) within their geographical area of competence. Fishing within the high seas areas of an RFMO is conditional on abiding by its rules.