Zone Based Management

The following is a personal interpretation of a concept widely promoted by the members of the intergovernmental Forum Fisheries Agency. I'm putting it here because I want to be able to refer to it, and it's not been published anywhere else.

 

What is Zone-Based Management?

“Zone-based management” is most easily understood in terms of its opposite: “Flag-based management”.

It is a term that is only useful in the context of transboundary fisheries that are managed by intergovernmental agreement under the UN Convention on Law of the Sea (UNCLOS) and its Fisheries Implementing Agreement (UN Fish Stocks Agreement or UNFSA) through Regional Fisheries Management Organisations (RFMOs).

Zone-based management is a shorthand way of describing what the Pacific Islands Forum Fisheries Agency (FFA) was originally set up to do in 1979 – to assist PSIDS to take control of the foreign flag tuna fisheries occurring in their newly-declared EEZs, carried out by fishing vessels flying the flag of various distant water Fishing States. At the time these were mainly Japan, USA and Chinese Taipei.

RFMOs existed long before the coming into force of UNCLOS and UNFSA. Before these agreements there were no 200-mile EEZs, and the only waters under national jurisdiction were within 12 or even 3 miles from shore. The only means of expressing intergovernmental agreement to sustainably manage highly migratory fish stocks was for Flag States themselves to control the activities of their own vessels according to rules agreed between themselves through an RFMO. Coastal states had little or no say in the matter.

Distant water fishing states also controlled decisions about carving up tuna fishing opportunities between themselves. These shares were usually determined according to catch history. No matter where the vessels of a particular nation fished, the catch history of that vessel was added to the flag nation catch history and shares determined after negotiation within the RFMO.

The advent of the international law of the sea and the declaration of 200-nm Exclusive Economic Zones should have overturned this old order but, 40 years down the track, coastal States (EEZ custodians) are still struggling to either obtain a share in, or fully control, the tuna fisheries in their own EEZs. This is because most tuna RFMOs still allocate national fishing opportunities according to flag catch history. And commercial fishery catch history is something that, by definition, developing countries have had little opportunity to accrue. Even now, the majority of vessels fishing for tuna (the vast majority, in the case of longliners) are flagged outside the national waters where they do most of their actual fishing.

This is obviously a problem in a region like the western and central tropical Pacific where almost all of the prime fishing grounds are within developing country EEZs.

We now control our own EEZs, so what’s the problem?

Custodianship of an Exclusive Economic Zone provides a country with the authority[1] to exclude others from fishing in that area – to control who actually fishes in their EEZ. However it does not convey the right to a share in the regional tuna resource. This is because these shares (outside territorial seas anyway) are controlled by RFMOs, and RFMOs are traditionally dominated by flag fishing states exercising flag-based management. RFMOs normally allocate fishery shares according to catch history by flag.

This leads to the peculiar situation whereby a developing country may own 40% of the total regional fishing grounds (or where 40% of the regional stock of tuna within its EEZ  at any one point in time), but because that country does not have a history of large scale commercial fishing for tuna they are not allowed a significant share in fishing it – even in their own EEZ – because it is a regional stock controlled by a regional fisheries management organisation. All they can do is exclude others from fishing in their EEZ, but they will not have the right under international law to fish more that the percentage of the fishery that is allocated to them by the RFMO.

The answer to this is either to be able to negotiate strongly in the RFMO for a better share of the regional resource, or to overturn the convention of sharing regional resources between flag states according to their catch history.

PSIDS have been able to pursue both strategies by asserting their zone-based management rights at the stage that the Western Pacific RFMO (WCPFC) was first designed. WCPFC is a relative newcomer on the global RFMO scene, and one of the few RFMOs to be set up since the UN Fish Stocks Agreement came into force. UNFSA recognises coastal States rights. FFA member countries learned from the problems faced by coastal states and SIDS in other tuna fishing regions and made sure that the WCPFC Convention included mechanisms that recognized their aspirations not only to manage, but also to benefit from, tuna fisheries taking place in and around their own EEZs.

Is zone-based management compatible with international law?

Zone based management – meaning management whereby EEZ fisheries are controlled and allocated by coastal states rather than flag states – is not contrary to international law. And RFMOs are not required by international law to allocate regional fishing opportunities according to flag catch history rather than EEZ catch history, but most do so because flag states have traditionally formed the main voice in these forums. These flag States are usually developed countries with their own fishery science programs (these fisheries are managed “scientifically” – another word which certain flag States use to try and undermine the “unscientific” rights-based arguments of developing countries), and may also deploy their development assistance programs in a way that supports their distant water fishing interests.

The WCPFC Convention is one of the later expressions of international fisheries law, and itself is based upon the UN Fish Stocks Agreement.

The WCPFC Convention, for example, says:

Article 10.1. Without prejudice to the sovereign rights of coastal States for the purpose of exploring and exploiting, conserving and managing highly migratory fish stocks within areas under national jurisdiction, the functions of the Commission shall be to: …

… (g) develop, where necessary, criteria for the allocation of the total allowable catch or the total level of fishing effort for highly migratory fish stocks in the Convention Area

… without specifying whether such allocation criteria shall benefit flag State or coastal State interests. Indeed, the Convention gives general weight to the sovereign rights of coastal States in the process, within areas under national jurisdiction.

And of the 10 matters that are specified under Article 10.3 of the Convention as needing to be taken into account in developing allocation criteria, only one of them mentions the interests of “participants in the fishery” and the other 9 are either neutral with respect to this matter or notably zone-based, including “(c) the historic catch in an area” and “(j) the fishing interests and aspirations of coastal States, particularly small island developing States, and territories and possessions, in whose areas of national jurisdiction the stocks also occur”.

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[1] Although there is a technicality under UNCLOS Article 62.2 that requires coastal States to “give other States access to the surplus of the allowable catch” in their EEZs. This provision is not however widely upheld, particularly by developed countries in their own EEZs.