Abstract
In the last several decades, intergovernmental organizations have played an increasingly significant role in implementing international treaties by providing innovative implementation proposals. The UN Food and Agriculture Organization (FAO) has been a core institution for improving international fisheries governance. This chapter proposes that based on a combination of delegated and derivative international organization powers that the FAO has responsibilities to implement actively those portions of UNCLOS that are relevant to the FAO’s mission to conserve natural resources. Even though FAO is not a party to the UNCLOS treaty, the FAO has played a central role in elaborating general concepts within UNCLOS and innovating in the area of fishery management. FAO has done this both as an agent of States but also independently through the exercise of FAO’s delegated powers to conserve natural resources. This chapter highlights five areas where the FAO has made substantive contributions to improving practices for sustainable fisheries management: (1) ecosystem approach fisheries management, (2) port state measures to combat illegal fishing, (3) guidelines to assist small-scale fisheries, (4) improved flag state performance in relation to fisheries and (5) facilitation of regional fisheries bodies. The Author proposes at the end that the FAO might be able to exercise its derivative powers to improve enforcement on the high seas with the possibility of FAO-organized enforcement efforts.
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Notes
- 1.
Food and Agriculture Organization Constitution in Basic Texts of the FAO (Volume 1) (2017) available at http://www.fao.org/3/K8024E/K8024E.pdf: Article I(2)(c).
- 2.
1833 UNTS 3, 21 ILM 1261 (1982), Preamble (UNCLOS was concluded to promote “the equitable and efficient utilization” and conservation of ocean resources plus “the protection and preservation of the marine environment”).
- 3.
Food and Agriculture Organization, The State of World Fisheries and Aquaculture (2016). Available at http://www.fao.org/3/a-i5555e.pdf, p. 70.
- 4.
- 5.
Vienna Convention on the Law of Treaties between States and International Organisations or between Organisations (1986) 25 ILM 543.
- 6.
Reparation of or Injuries Suffered in the Service of the United Nations I.C.J. Reports 1949.
- 7.
Food and Agriculture Organization, supra note 1 at Art. I.
- 8.
Id. at Art. XVI.
- 9.
See generally, Kelsen (1951).
- 10.
March and Olsen (1998): Finding that intergovernmental organizations will independently create ideas to solve global problems and put pressure on States to act in conformity with the ideas.
- 11.
Park (2006).
- 12.
Weissburg (1961), p. 203.
- 13.
This conclusion is based on analogizing with the ICJ’s analysis of the United Nations as an intergovernmental organization. See Reparation of or Injuries Suffered in the Service of the United Nations I.C.J. Reports 1949, p. 177 (“It must be acknowledged that its Members, by entrusting certain function to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged”).
- 14.
Art. 61(2), UNCLOS.
- 15.
UNCLOS, Art. 61(5) and Art. 119 (“Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations”).
- 16.
Art. 61, UNCLOS.
- 17.
The Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem (2001) in Report of the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem (1–4 October 2001) FAO Fisheries Report, No. 658 (2002).
- 18.
Government of Canada, Guidance on Implementation of the Policy on Managing Bycatch. Available at http://www.dfo-mpo.gc.ca/reports-rapports/regs/sff-cpd/bycatch-guide-prise-access-eng.htm.
- 19.
FAO Technical Guidelines for Responsible Fisheries, Ecosystem Approach to Fisheries Guidelines, (2003), No. 4, Suppl. 2. Available at http://www.fao.org/3/a-y4470e.pdf (The “ecosystem approach to fisheries and aquaculture” is understood by FAO as a system that “strives to balance diverse societal objectives, by taking account of the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries”).
- 20.
FAO, The Ecosystem Approach to Fisheries, The Human Dimensions of the Ecosystem Approach to Fisheries, Technical Guidelines for Responsible Fisheries (2009), No. 4, Suppl. 2, Add. 2. Available at http://www.fao.org/3/a-i1146e.pdf.
- 21.
Id. at xvii.
- 22.
Ibid.
- 23.
FAO Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) para. 42. Available at http://www.fao.org/docrep/011/i0816t/i0816t00.htm.
- 24.
FAO, International Guidelines on Bycatch Management and Reduction of Discards (2011). Available at http://www.fao.org/3/ba0022t/ba0022t00.pdf.
- 25.
Id. at para. 3.1.2(i) and 3.2.1.
- 26.
Id. at para. 4.1.1.
- 27.
FAO, Fisheries, Aquaculture and Climate Change: The Role of Fisheries and Aquaculture in the Implementation of the Paris Agreement, (2016). Available at http://www.fao.org/3/a-i6383e.pdf.
- 28.
FAO Committee on Fisheries, Thirty-second Session, (11–15 July 2016), Global and Regional Processes, COFI/2016/8 at para. 67.
- 29.
Ibid.
- 30.
FAO Contribution to Part I of the Report of the Secretary-General on Oceans and the Law of the Sea, (28 January 2015) Sixteenth Meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: “Oceans and Sustainable Development: Integrations of the Three Dimensions of Sustainable Development, Namely Environmental, Social and Economic” Annex 2, pp. 27–28.
- 31.
Id. at para. 28–30 (FAO’s report noted that “this type of collaboration offers a key opportunity to create synergies with regard to facilitating the achievement of Aichi Target 6 and improving the related reporting by building on existing areas of work within the two respective organisations”).
- 32.
Id. at para. 52.
- 33.
FAO Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) supra note 33 para. 47 (To determine whether deep-sea fishing is likely to cause a significant adverse impact, FAO recommends that States address the following topics:
-
i.
type(s) of fishing conducted or contemplated, including vessels and gear types, fishing areas, target and potential bycatch species, fishing effort levels and duration of fishing (harvesting plan);
-
ii.
best available scientific and technical information on the current state of fishery resources and baseline information on the ecosystems, habitats and communities in the fishing area, against which future changes are to be compared;
-
iii.
identification, description and mapping of VMEs known or likely to occur in the fishing area;
-
iv.
data and methods used to identify, describe and assess the impacts of the activity, the identification of gaps in knowledge, and an evaluation of uncertainties in the information presented in the assessment;
-
v.
identification, description and evaluation of the occurrence, scale and duration of likely impacts, including cumulative impacts of activities covered by the assessment on VMEs and low productivity fishery resources in the fishing area;
-
vi.
risk assessment of likely impacts by the fishing operations to determine which impacts are likely to be significant adverse impacts, particularly impacts on VMEs and low-productivity fishery resources; and
-
vii.
the proposed mitigation and management measures to be used to prevent significant adverse impacts on VMEs and ensure long term conservation and sustainable utilization of low-productivity fishery resources, and the measures to be used to monitor effects of the fishing operations).
-
i.
- 34.
FAO, COFI, Report on the Twenty-seventh Sessions of the Committee on Fisheries, (5–9 March 2007), para. 49.
- 35.
Id. at Art. 62(4)(k).
- 36.
Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (2007).
- 37.
Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009). The agreement as of February 2019 has 61 parties including the European Union).
- 38.
The European Union approved the Port State Measures Agreement on July 7, 2011. The U.S. ratified the treaty on February 26, 2016. Available at http://www.fao.org/fileadmin/user_upload/legal/docs/037s-e.pdf.
- 39.
Annex A provides a form with specific information to be provided in advance by vessels requesting port entry, Annex B provides a list of duties for Port State inspectors, Annex C provides a form to be used by Port Inspectors to provide the results of their inspection, Annex D provides for specific information about how to code information to be used for sharing with other Parties to the PSMA and Annex E offers a set of general guidelines to be used by States in developing a training program for Port Inspectors.
- 40.
Westlund and Zelasney (2019).
- 41.
Food and Agriculture Organization, Increasing the Contribution of Small-Scale Fisheries to Poverty Alleviation and Food Security, FAO Technical Guidelines for Responsible Fisheries 10 (2005).
- 42.
FAO, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (2015). Available at http://www.fao.org/3/a-i4356en.pdf Guideline 3 (Recognizing the ecosystem approach to fisheries as part of a principle to pursue “holistic and integrated approaches”).
- 43.
Id. at Principle 5a.
- 44.
Id. at Principle 5.19.
- 45.
Regional Workshop on Securing Sustainable Small-Scale Fisheries in the Lower Mekong Region: SSF Guidelines in Action (30 April–1 May, 2016), Thailand. Available at https://sites.google.com/site/ssfguidelines/thailand/statement.
- 46.
ITLOS Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (2 April 2015), Case No. 21, Advisory Opinion para. 111.
- 47.
Ferrell (2005).
- 48.
FAO Voluntary Guidelines for Flag State Performance (2015). Available at http://www.fao.org/3/a-i4577t.pdf.
- 49.
Id. at para. 3–4.
- 50.
Id. at Paragraphs 7 and 9.
- 51.
Id. at Paragraph 29.
- 52.
ITLOS Advisory Opinion, supra note 46, para. 129.
- 53.
The ability of private owners to obtain a flag on an open registry without needing to provide a verifiable “genuine link” to the flag State operates with the same dynamics of international tax havens. On the one hand, there appears to be legitimacy in having a registered boat. On the other hand, a lack of a genuine link with a flag serves to mask illegitimate behavior if a flag state fails to monitor, control, or enforce against registered boats.
- 54.
FAO Voluntary Guidelines for Flag State Performance (2015), supra note 48, para. 45–46.
- 55.
Arts 61, 63, 66, 118, and 119, UNCLOS.
- 56.
Regional Fishery Body Secretariats’ Network. Available at http://www.fao.org/3/ca0133en/CA0133EN.pdf (July 2018).
- 57.
In the Suez Canal in 1956 and 1957, the UN Suez Canal Operation chartered numerous ships from private parties that were then deployed as part of a UN project. The ships were provided with privileges and immunities available to the United Nations and flew the UN flag from its stern in place of their national flag while operating in the Suez Canal area. Meyers (1967), pp. 333–334; Art. 93 of UNCLOS provides that certain obligations related to nationality and status of ships “do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization.”
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FAO (2015) Voluntary Guidelines for Flag State Performance. Available at http://www.fao.org/3/a-i4577t.pdf
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FAO, (2016) The State of World Fisheries and Aquaculture. Available at http://www.fao.org/3/a-i5555e.pdf
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Telesetsky, A. (2020). UN Food and Agriculture Organization: Exercising Legal Personality to Implement the UN Convention on the Law of the Sea. In: Ribeiro, M., Loureiro Bastos, F., Henriksen, T. (eds) Global Challenges and the Law of the Sea. Springer, Cham. https://doi.org/10.1007/978-3-030-42671-2_12
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