The roles of nongovernmental actors in improving compliance with fisheries regulations

• Date: 01 November 2019
• DOI: http://doi.org/10.1111/reel.12304
• Published date: 01 November 2019
• Author: Solène Guggisberg

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  RECIEL. 2019;28:314–327.

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1 | INTRODUCTION

The status of marine living resources is extremely concerning in terms

of environmenta l conservati on, with most fis h stocks being f ully ex‐

ploited or suffering from over‐exploitation.1 This is also a human devel‐

opment problem, since fish products represent a crucial source of

protein for the wor ld’s population2 and are, for developing countries,

the most valua ble agricultural co mmodity to be tra ded international ly.3

Overfishin g, caused by excessive – a nd yet often disregar ded – quotas,

is aggravated by ill egal, unrepor ted and unregu lated (IUU) fishi ng.4

Adequate conservation and management measures (CMMs) are neces‐

sary for the l ong‐term sustainabil ity of such marine res ources, but they

are insuffic ient if vessels and States do n ot respect their oblig ations.

States play diff erent roles in rela tion to fishing ac tivities and

have, accordingly, different duties. Central to the regulatory regime

is that the flag St ate must control it s vessels and ensu re that they

respect the a pplicable CMM s. The obligatio n is provided for in th e

United Nations Co nvention on the Law of t he Sea (UNCLOS) in

Artic le 945 and further ela borated, in relation to th e fisheries sector,

in other treaties.6 Flag State jurisdiction is n ecessary to ensure that ,

at all times, a Stat e has jurisdicti on over vessels, hen ce ensuring

order on the high s eas,7 which is the area beyond th e national juris‐

diction of any Stat e.8 This obligation of due di ligence does not imply

that a flag State wil l be held responsi ble for each viola tion of

1 Over 33 perce nt of stocks are over fished, ne arly 60 percent a re fully fishe d and only

about 7 perce nt currently re main underf ished. Food and A griculture O rganization o f the

United Natio ns (FAO), ‘The State of t he World Fisheri es and Aquacul ture’ (FAO 2018) 6.

2 ibid 4.

3 T Bostock and S Wa lmsley, ‘Enough to E at? Fisheries a nd Food Securit y’ in R Bourne

and M Collins (e ds), From Hook to Plate: Th e State of Marine Fi sheries – A Commo nwealth

Perspective (Com monwealth Foun dation 2009) 105 , 107; see also FAO, ‘The Stat e of the

World Fisher ies and Aquacul ture’ (FAO 2016) 7.

4 UNGA ‘Sust ainable Fish eries Resolut ion of 7 December 2 016’ UN Doc A/RES/71/12 3

(13 February 2017) preamble.

5 United Natio ns Convention on t he Law of the Sea (ad opted 10 Decembe r 1982, entered

into force 16 Novem ber 1994) 1833 UNTS 3 (UN CLOS).

6 Agreemen t to Promote Compl iance with Inter national Cons ervation an d Management

Measures by Fi shing Vessels on t he High Seas (adop ted 24 November 1993, e ntered into

force 24 April 20 03) 2221 UNTS 120 ( Compliance Ag reement); A greement for th e

Implement ation of the Provi sions of the Unite d Nations Conven tion on the Law of th e

Sea of 10 Decemb er 1982 relating to the C onservati on and Manageme nt of Straddling

Fish Stocks an d Highly Migrat ory Fish Stock s (adopted 4 Augus t 1995, entered into fo rce

11 December 20 01) 2167 UNTS 88 (UNFSA ). However, these tr eaties are not ra tified as

widely as UNC LOS (there were 42 par ties to the Com pliance Agree ment and 89 par ties

to UNFSA as of Marc h 2019).

7 See Artic les Concernin g the Law of the Sea w ith Commenta ries in Interna tional Law

Commission , ‘Yearbook of The I nternationa l Law Commissio n, Vol. II’ UN Doc A/C N.4/

SER.A/1956/Add .1 (1956) 265, 279.

8 UNCLOS (n 5) art 8 6.

Received: 15 Nove mber 2018 

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  Revised: 19 March 2019 

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  Accepted: 16 June 2019

DOI: 10 .1111/reel .12304

SPECIAL ISSUE ARTICLE

The roles of nongovernmental actors in improving compliance

with fisheries regulations

Solène Guggisberg

This is an open ac cess article und er the terms of the Crea tive Commons Attr ibution‐NonCo mmercial License , which permits us e, distribution a nd reproductio n

in any medium, p rovided the origin al work is properly ci ted and is not used for com mercial purpose s.

© 2019 The Authors . Review of European, Co mparative & Internati onal Environmenta l Law Published by Jo hn Wiley & Sons Ltd.

Correspondence

Email: s.a.guggisberg@uu.nl Nongovernmental ac tors play several important roles i n promoting compliance wi th

international fishe ries regulations. T hese roles consist on th e one hand in monitor‐

ing, investigating a nd reporting occu rrences of illegal, unr eported and unre gulated

fishing, and, on th e other hand, in direct actio ns in coastal States’ exclusive economic

zones and on the high se as. Some of the se actions, in particular data gathering and

sharing, fall squ arely within the exis ting regime of the law of the sea. Other act ions,

such as some type s of direct actions on the high se as, may be legally more question a‐

ble. In any case, the no ngovernmental nature of the actors r aises issues of efficiency,

accountability, autho rity and alloca tion of responsibilit y. Notwithstanding e xpected

resistance to reform from States and non‐State actors, there is a cl ear need to adapt

and clarify the l egal regime, at the risk otherwise of un dermining the rule of law.