Fisheries and Areas beyond National Jurisdiction: Advancing and Enhancing Cooperation

It is increasingly clear that the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) is a major unfinished agenda of the LOSC. In December 2017, the UNGA initiated an intergovernmental conference to negotiate an implementation agreement for ABNJ. It is expected that over the course of four sessions between September 2018 and 2020 the text of this agreement will be agreed, and the most significant of LOSC’s unfinished agendas be resolved. This paper provides new insights into how this major new agreement can and should advance international fisheries management. Part 2 evaluates the case for and against the inclusion of fisheries. It advocates the inclusion of fisheries within the ABNJ Agreement, both directly and indirectly. Although the question of inclusion of fisheries is essentially a political question, this outcome is desirable from a conservation perspective. It is also supported by existing legal rules and institutions. Given the importance of including fisheries, the real focus of our efforts should not be on why, but rather how fisheries are included in the new agreement. As the review of developments towards an ABNJ Agreement shows in Part 3, there are some clear pointers to how fisheries can be included. Yet there are also some potential impediments to be overcome. Political objections aside, these principally concern the risks of conflicting legal regimes as reflected in the core requirement that the new agreement ‘should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’. This is significant because fisheries management is perhaps the principal area where existing regimes have developed well-established, if not comprehensive, mandates. In Part 4, three key ways of addressing these concerns are set out: conflicts and compatibility clauses, the use of general principles, and developing mechanisms for enhanced cooperation. Each contributes to a more integrated governance regime without threatening existing mandates and institutions. This preserves the necessary balances inherent in the law of the sea whilst enabling advances through cooperation. This will counter the traditional freedom bias that impedes sustainable fishing in ABNJ