Current Legal and Institutional Issues Relating to the Conversation and Management of High-Seas Deep-Sea Fisheries

This report analyzes the current regional and global legal and institutional framework relating to the conservation and management of high seas deep sea species and fisheries, identifies gaps and shortcomings therein and offers a range of solutions to address these. The objectives and species coverage of the constitutive instruments of various existing relevant Regional Fisheries Management Organizations (RFMOs) and Arrangements indicate that (part of) the Fish Stocks Agreement is already applicable to discrete high seas fish stocks. Even though that state practice ‘merely’ consists of the texts of constitutive instruments, there seem to be no scientific, pragmatic or other factors apart from the issue of the allocation of fishing opportunities, that would necessitate RFMOs and Arrangements, in performing their functions, to explicitly or implicitly distinguish between straddling and discrete high seas fish stocks. There is a need to establish new RFMOs or Arrangements with competence to manage deep sea species and fisheries. While negotiations to establish these in the Southern Pacific and the North-West Pacific are already underway, there are currently no RFMOs or Arrangements for the Central Atlantic, the South-West Atlantic, the Central Pacific, the North-East Pacific and for areas of the Arctic. The constitutive instruments of these RFMOs or Arrangements should relate to straddling fish stocks as well as to discrete high seas fish stocks and should be consistent with the Fish Stocks Agreement and other rules of international law, and in particular the precautionary approach to fisheries and the ecosystem approach to fisheries. Where appropriate and necessary, bodies dedicated to deep sea species and fisheries should be established. Existing RFMOs and Arrangements should be reformed to achieve a similar result. At the global level, one of the most prominent gaps is the non-applicability of the Fish Stocks Agreement to discrete high seas fish stocks. Other relevant shortcomings relate to the regime for sedentary species, both on the continental shelves of coastal States and on the seabed beyond the limits of national jurisdiction (the Area). The report examines the advantages and disadvantages as well as the types of instruments (i.e. legally binding and non-legally binding) that could be developed to address these shortcomings. COFI already agreed in 2005 on the need for non-legally binding guidance by FAO on the conservation and management of deep sea species and fisheries, presumably in the form of technical Guidelines. However, in view of the possible urgency of the matter, FAO Members may also want to consider developing an international plan of action (IPOA), a Model Arrangement or a legally binding instrument (whether or not developed within FAO)