Accounting For Catch In Internationally Managed Fisheries: What Role For State Responsibility?

Despite the impressive strides made in international fisheries law in the sixteen years since the convening of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, the state of most of the world’s fish stocks with which the conference was concerned continues to show little improvement. This is not because of any deficiency in the U.N. Fish Stocks Agreement adopted at the Conference, which as of July 1, 2008 has seventy-one parties, including the United States, the European Community and its twenty-seven member States, Japan, Canada, Russia, Norway, Australia, New Zealand, and South Africa, in other words most of the major players in international fisheries. The only calls for its revision at the 2006 Review Conference were from non-parties, and these were unconvincing. The standard explanation for the persistent gap between promise and performance has tended to be the slowness of regional fisheries management organizations to implement the Agreement’s solutions, despite the central role they are given by Articles 8 and 13. While there is some truth to this, in part because not all members of these commissions are parties to the Agreement, this Article argues that a significant part of the explanation is the conspicuous neglect of an essential legal tool in international fisheries discourse: the doctrine of State responsibility. This branch of international law can hold delinquent States accountable to other States for their acts and omissions contrary to their legal obligations. One of the reasons why so many stocks have been overfished to the point of sharply reduced productivity, or even collapse, is that States exerting a risky level of fishing pressure on the stocks have not been systematically visited with any adverse legal consequences before the point of collapse is reached, or for that matter, after. The only consequence they have had to face has been the collapse of the stock itself—a consequence that affects all other States with an interest in the stock, whether they have contributed to causing the collapse or not. In economic terms, States have been largely able to externalize the costs of their risk-taking, leading to levels of risk in the form of fishing pressure that are insufficiently precautionary not just from a biological viewpoint, but also from an economic one. Although there is no shortage of international fisheries documents in which the expression “State responsibility” occurs, it is invariably preceded either by “flag” or, rarely, “coastal” or “port,” and often in the plural, indicating that something other than State responsibility in the sense of public international law was in the drafters’ minds. In the sense in which it is used in these instruments, “responsibility” could easily be replaced by “duty,” “obligation,” or a similar term without a noticeable change in meaning. That is, the obligations here, to the extent that they exist, are primary and substantive, not the secondary duties associated with State responsibility that arise when a primary obligation is breached. It is similarly easy to find rhetorical references in fisheries commissions documents and elsewhere to “responsible fishing States,” and when used in this adjectival form the meaning is even less clear. The origin of this phrase appears to lie in the Cancún Declaration of 1992, where “responsible” seems to be no more than a term of general approbation devoid of any specific meaning. Subsequently, this use has been perpetuated by the soft-law Food and Agriculture Organization of the United Nations (FAO) Code of Conduct for Responsible Fisheries. More disturbingly, there are now signs that other State responsibility terms have been appropriated for use in a sense quite foreign to that in which they appear in the International Law Commission (ILC) Draft Articles on State Responsibility. For example, an International Commission for the Conservation of Atlantic Tunas (ICCAT) recommendation otherwise drafted in orthodox legal language, used “counter-measures” where it bears no evident relationship to that concept as a circumstance precluding wrongfulness of a State’s acts as set out in Article 22. Countermeasures in its true meaning was raised not many years ago by Rosemary Rayfuse, as a way for the high seas boarding and inspection provisions in Part VI of the UN Fish Stocks Agreement (a significant departure from the long-established ordinary rule codified in Article 92, paragraph 1 of the United Nations Convention on the Law of the Sea (UNCLOS) that on the high seas the flag State of a vessel has exclusive jurisdiction over it) to be made opposable to non-parties to that treaty. Rayfuse argues that where a State persistently breaches its customary and, where applicable, conventional, duty to cooperate with other States and the institutions established by them in conserving high seas fish stocks, other States specially affected may board and inspect that State’s fishing vessels on the high seas. This would be by way of a proportionate response, satisfying the criteria for “resort to countermeasures” laid down in Article 22 of the ILC’s Draft Articles as a circumstance precluding the wrongfulness of the otherwise unlawful interference with the flag State’s exclusive jurisdiction. Provided the other necessary elements were present, such an argument might well have succeeded as a defense for Canada to the merits of the action brought against it by Spain over its actions on the high seas against the Spanish-flagged Estai in 1995, which was dismissed by the International Court of Justice (ICJ) in 1998 for want of jurisdiction. On the other hand, since countermeasures by their very nature tend to be ad hoc responses to immediate exigencies, States are unlikely to adopt this approach as a preannounced policy, as they would then be admitting in effect their willingness to breach international obligations. The remainder of this Article is divided as follows: Section II considers in the abstract how certain basic State responsibility concepts could apply to internationally managed fisheries, and highlights some of the practical difficulties that may also have contributed to their neglect; Section III—the bulk of the Article—is a case study of how States’ practice in accounting to each other for their catches of southern bluefin tuna (SBT) has gradually evolved a “compliance” focus over the years that owes little to any systematic State responsibility framework; Section IV shows that this focus does not sufficiently discharge the member States’ responsibility to other States potentially able to enter the fishery in pursuance of their UNCLOS Article 116 right to fish on the high seas; and Section V offers some concluding thoughts as to how compliance can be reunited with State responsibility to benefit international fisheries.

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