C. Ways Forward: Possible Methods to Combat Unregulated Fishing
II. Specific Suggestions for RFMOs
Convincing as many states as possible to become members of the UN Fish Stocks Agreement can, of course, be reproduced for RFMOs. The more member stateswilling to comply with RFMO conservation and management rules, the better fish stocks can recover.
Nearly all the analysed RFMO constituent documents already provide for the recruiting of new members. For the most effective way to work individually, as well as jointly, RFMOs should all learn from each other and from their respective experiences when it comes to unregulated fishing.
Generally, there are two ways to address the problem. On the one hand, incentives can be set for non-member states to join one or more RFMOs. On the other hand, the consequences of unregulated fishing could be made more severe in order to deter fishing entities from conducting them. For this to be effective, the cost of unregulated fishing must be higher than the potential benefits.
32 1. Emphasising Long-Term Benefits
Whenever it comes to joining an international treaty, states must weigh the benefits against the cost of participation. In the view of this thesis, states will likely not join an international agreement that includes a risk to their own national interests, be they economic or political. Consequently, only if the benefits outweigh the cost will a state be prepared to subject itself to international obligations. When determining the cost of membership of an international treaty, many different factors can be taken into account. Next to “direct costs of implementing prescribed policies”132, reducing catch quotas, for example, there will be
“indirect costs relating to a loss of sovereignty and autonomy”.133 Additionally, “countries take on potential reputational costs should they fail to comply with treaty obligations”.134 On the other hand, in the view of this thesis, similar reputational costs could arise when a country decides against joining a treaty and thereby against contributing to a common cause.
The UN Fish Stocks agreement spells out an exemplary list of factors that will affect the rights of new member states of RFMOs.135 This list includes, inter alia, the status of protected fish stocks, the currently exercised fishing practices of contracting states and “the respective contributions of new and existing members or participants to conservation and management of the stocks”.136 Generally, the incentives for new parties to join existing regimes are limited.
RFMO contracting parties “have endured much sacrifice”.137 “They have given up present fishing opportunities in the hope that stocks will recover and provide sustainable fishing opportunities in the future”.138 From a purely short-term economic perspective, joining an RFMO does not appear to be very attractive for third states in this regard. This thesis assumes
132 S Mohrenberg et al, Effects of funding mechanisms on participation in multilateral environmental agreements, (2018) 19 International environmental agreements: politics, law and economics 4.
133 ibid.
134 ibid.
135 Art. 11 UN Fish Stocks Agreement.
136 ibid.
137 JP Plé, (n 15) 198.
138 ibid.
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that the lack of economic benefit for new member states will prevent many of them from participating in conservation and management conventions.
Consequently, this paper suggests that other incentives need to be set to encourage states to participate in RFMO regimes. While it is always morally right and beneficial for the planet to actively engage in preserving the marine environment, in the view of this paper, purely moral reasons will often not be enough for a state to join an organisation for the sake of conservation. Economic profit is far easier to grasp and will also convince nations for which morals are not a driving force. For this reason, this thesis represents the opinion that the focus must be taken away from short-term sacrifice.
Instead, this paper forwards the view that long-term (economic) benefit must be emphasised. For the purposes of sustainable fisheries, RFMO conventions should include long-term benefits for their members. A respective provision could, for example, promise larger catch quotas in the future, when stocks are recovered. Prognoses in this respect can be made based on scientific research. The “infrastructure” of including scientific research in conservation and management rules already exists in RFMO treaties in the form of scientific councils or committees.
This thesis suggests that the longer a state is a member of the respective organisation and the greater its efforts for conservation, the more extensive fishery rights should be attributed to it. In the view of this paper, a system like this would serve as a great incentive for states to not only join RFMOs but also to contribute as best they can to conserving the marine
environment. This paper represents the opinion that this will ultimately lead to healthy fish stocks and more fishing opportunities for everyone. As a result, it would become less
attractive to stay a non-member. States that remained outside regional conservation schemes would be left out of the distribution of fishing opportunities in the long run. Ideally, at some point in time, being an RFMO member and fishing with an allocated catch quota would be more beneficial than engaging in unregulated fishing activities.
This idea for incentivising states to join RFMOs directly targets the lack of consent, that unregulated fishing is the result of. In most cases, it is easier said than done to solve a problem by eliminating its underlying issue. However, this paper represents the opinion that in the context of public international law it is generally possible to eliminate a lack of consent,
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otherwise there would be no international treaties with near universal participation such as UNCLOS. Therefore, gaining the support and participation of as many states as possible for RFMO regimes is a very good way to combat the issue of unregulated fishing.
2. Funding
A second incentivising method to recruit new member states relates to funding. Some international treaties include provisions on this topic. For example, the Montreal Protocol to the Vienna Convention on the Protection of the Ozone Layer of 1985 was one of the first multilateral environmental treaties to include a Multilateral Fund.139 The purpose of this fund is to help states comply with their obligations of the treaty.140 In the interpretation of this thesis, setting up a fund does not only serve the purpose of financially supporting individual states. It can also be seen as a method to make an international treaty more successful in general. Since the Montreal Protocol many other international environmental treaties have followed its example.141 Research suggests that multilateral environmental agreements that include provisions on funding are more likely to attract more member-states for different reasons.142 Building on this research, this thesis suggests that RFMOs can use the same method to attract more members as well. In the view of this paper, including a funding mechanism in RFMO constituent documents will help to address the theory of consent at its root again.
As indicated, research suggests that states are more likely to join a multilateral
environmental agreement if there is a provision on financial assistance.143 According to this research, a fund should be set up to provide such assistance to states that are in need of it under the following conditions. First, a funding mechanism must be worked into the
139 PM Dupuy, JE Viñuales, International Environmental Law (Second Edition, Cambridge University Press, 2018) 165.
140 ibid.
141 ibid.
142 S Mohrenberg et al, (n 132) 16.
143 ibid.
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constituent document or must at least be included in the regime in some other way.144 Second, the financial assistance must only be provided for a subgroup of treaty members that can be clearly differentiated.145 Third, the contributions to the established fund must be voluntary.146
In the interpretation of this thesis, each of these points speaks to a different clientele of potential parties and will help to convince them to give their consent to international treaties.
Combined, this thesis suggests that they can be a powerful tool to persuade all different kinds of states to join a multilateral treaty: First, countries that are worried about not being able to comply with a treaty due to a lack of funds will be attracted by the mere fact that a funding mechanism exists. Second, if funding is only provided for a subgroup of members, other states can be sure that financial support will be limited to a certain amount and their membership will not entail incalculable economic risks for themselves. Third, voluntary contributions allow for states to join that are opposed to financially supporting other members. However, there might be a certain form of “peer pressure” to contribute.
Therefore, this paper represents the opinion that including the suggested provisions on financial assistance would be a way to lure in a variety of states. This strategy would also work for RFMOs. The organisation could use funds to make their regime more accessible, consequently attract more member states, and fight unregulated fishing as the result of a lack of consent at the same time. However, of the analysed organisations only SPRFMO sets up a fund.147 Indeed, only CCAMLR has more members than SPRFMO.148 While this single example is not representative, it can give an indication regarding the effectiveness of RFMO funds. Furthermore, ways into the future always hold potential for developing and
implementing technology solutions to make fisheries more sustainable. These technologies will often be expensive and an RFMO fund could help immensely in this regard. The next section will elaborate on possible future technology solutions.
144 ibid.
145 ibid.
146 ibid.
147 Art. 19(5) SPRFMO.
148 <https://www.sprfmo.int/about/participation/>; <https://www.ccamlr.org/en/organisation/members>
(accessed 28 June 2022).
36 3. Technology Solutions
This thesis represents the opinion that technology can be helpful in a variety of ways, ranging from optimising the very process of fishing to the monitoring of fishing vessels. In the context of unregulated fishing the latter issue is of high importance and falls into the category of deterring unregulated fishing activities. Many RFMOs use IUU vessel lists to document and keep track of vessels engaging in unregulated fishing activities within their regulatory areas.149 To establish these lists, vessels must first be found and identified on the high sea – this is where this paper’s suggestion on the use of technology comes to play a role.
A widely implemented method to monitor and track fishing vessels is the Vessel Monitoring System (VMS) that is used on many fishing vessels.150 For example, it is mandatory for European vessels to install the system if they have a length of more than 15 metres.151 With this system it is possible to track fishing vessels wherever they are because the system transmits their position in regular intervals.152 However, the VSM does not operate on all fishing vessels and therefore it is possible that many of them “fly” under the radar.153
This thesis suggests that better ways to monitor and track fishing activities could involve the use of drones. Today, drones are already used to monitor biological developments. For example, drones monitor kelp forests in California.154 This makes it possible to observe their growth and health as well as systematically remove predators such as the purple sea urchin.155 This paper suggests that drones could also be used to regularly monitor certain areas of RFMO conventions. They could be programmed to regularly fly over certain areas or routes where unregulated fishing is known to occur. Fishing vessels could be spotted and
149 <https://iuu-vessels.org/iuu> (accessed 28 June 2022).
150 J Matthew, A Step Towards Seacape Scale Conservation: Using Vessel Monitoring Systems (VMS) to Map Fishing Activity, (2017) 10 PLoS ONE 1.
151 ibid.
152 <https://globalfishingwatch.org/faqs/what-is-vms/> (accessed 11 May 2022).
153 J Matthew (n 150).
154 B Hännsler, Drones For Future, (2022) 1/2022 MIT Technology Review 92.
155 ibid.
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documented more easily from the air than by using other vessels to try and track them down in order to identify them. Drones can be programmed to fly certain patterns with little human supervision. Additionally, the use of drones is far more cost efficient than other tracking methods. At some point, drones could even operate autonomously to a larger extent.
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