International and Domestic Fishery Management: A case

study of the United Nations Convention on the Law of Sea

and the Magnuson-Stevens Fishery Conservation and
Management Act.

David O. King
U01209185

Elizabeth Haub School of Law Pace University

LAW 797F 300
Professor Sean Dixon

May 2017
INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

Abstract

International and domestic fishing have always been intimately connected. As a result, a given
society’s fishery law generally reflects international realities, including its relationship with
international fishery laws. In the future, however, domestic fishery laws are likely to be affected
and perhaps even change substantially, because some of the consequences of international
fishery management oversights and impacts on domestic fishery management, although those
impacts will vary from country to country.

This paper examines the roles of international and domestic fishery management laws in
addressing fishery conservation and management problems, including inadequate fisheries
regulations, lack of implementation or enforcement, lack of transparency and traceability,
failure to follow scientific advice, flag of convenience vessels, and too few no-go areas for
fishing. The discussion begins with a closer examination of provisions of the United Nations
Convention on the Law of the Sea and the Magnuson-Stevens Fishery Conservation and
Management Act. From a legal perspective, however, the subject of fishery conservation and
management is made more complex by the fact that the existing legal regimes under
international agreements, and national legislations themselves vary considerably. As such, two
issues regarding the role of international fishery law in domestic fishery management are likely
to emerge as most critical: the extent to which international fishery law provides for flexibility in
how domestic fishery law affect fishery conversation and management; and the extent to which
domestic fishery law and management system both can adapt existing international legal regime
to changing ecological realities and can increase the short-term and long-term resilience of the
overall condition of the nation’s fisheries.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

Table of Contents

Abstract ........................................................................................................... 2
Introduction ..................................................................................................... 4
1. Overview of UNCLOS and the Magnuson-Stevens Act ................................. 6
1.1 Maritime Jurisdictional Zones under UNCLOS .............................................. 6
1.2 Maritime Jurisdictional Zones under the Magnuson-Stevens Act ................... 7
2. Legal aspects of UNCLOS and the Magnuson-Stevens Act ............................ 8
2.1 Fishery Conservation Management and Current Challenges ........................... 8
a. Preventing Overfishing and Rebuilding Overfished Fish Population ......... 9
i. The Maximum Sustainable Yield Concept under UNCLOS and the
Magnuson-Stevens Act ................................................................. 11
b. Illegal, Unreported, and Unregulated Fishing ........................................... 15
i. IUU Fishing and UNCLOS ........................................................... 17
ii. The „Genuine Link‟ Requirement under UNCLOS ...................... 18
iii. The Role of Regional Bodies and IUU Fishing ............................. 19
iv. IUU Fishing and the Magnuson-Stevens Act ................................ 21
c. The U.S. Fishing Policy and Practical Implementations ........................... 23
3. Conclusion ....................................................................................................... 25

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

Introduction

Fishing is big business, and the United States is the fifth largest fishing nation in the
1
world with production of about 5.3 million Tons. In fact, the National Oceanic and Atmospheric
Administration (“NOAA”) reported that, “U.S. commercial fishermen landed 9.6 billion pounds
of seafood valued at $5.1 billion,”2 and recreational fishing appears to have similar economic
impact. These indicators underscore the importance of the fishing industry to the nation, and
much of this growth can be attributed to enactment of the Magnuson-Stevens Act3 in 1976. The
statute claims exclusive U.S. control over virtually all living marine resources within 200
nautical miles of U.S. shores.4 The presidential proclamation5 established a “Fishery
Conservation Zone” also known as the Exclusive Economic Zone (EEZ) under the Magnuson-
Stevens Act, it mirrored the rights given coastal nations under part VI of the United Nations
Convention on the Law of the Sea.6

Although the United States is not a party to UNCLOS, “the U.S. nevertheless observes
the Convention as reflective of customary international law and practice.”7 As a result, domestic
fishery management should be consistent with, for example, the provisions of Article 16 and 62

1
IDREES KHAN, Top 10 largest Fishing Producing Country in the World, World Knowing (June 28, 2015),
http://worldknowing.com/top-10-largest-fish-producing-country-in-the-world (last visited April 27, 2017).
2
NOAA, Fisheries of the United States: A Statistical Snapshot of 2012 Fish landings (2012),
https://www.st.nmfs.noaa.gov/Assets/commercial/fus/fus12/FUS_2012_factsheet.pdf.
3
Pub. L. No. 94-265, § 2, 90 Stat. 331 (1976). The law was originally known simply as the Fishery Conservation
and Management Act. In 1980, Congress renamed it the Magnuson Fishery Conservation and Management Act,
Pub. L. No. 96-561, tit II, § 238, 94 Stat. 3275 (1980); in 1996, it became the Magnuson-Stevens Fishery
Conservation and Management Act, Pub. L. No. 104-208, tit II, § 211, 110 Stat. 3006 (1996). To conform with other
published literature this paper will continue to use the term Magnuson-Stevens Fishery Conservation and
Management Act (referred to as the “Magnuson-Stevens Act” or the “Act.”),
http://www.nmfs.noaa.gov/sfa/magact/MSA_Amended_2007%20.pdf.
4
16 U.S.C. §§ 1801-1884 (2007); see id. §§ 1811(a) (claiming exclusive authority over fishing rights within the
EEZ), 1802(11) (defining EEZ as areas from state waters to two hundred miles as established by presidential
proclamation).
5
Proclamation No. 5030, 3 C.F.R. § 22 (1983).
6
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (1982) (hereinafter referred to as the “UNCLOS” or the
“Convention”), http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
7
OFF. GEN. COUNSEL, Law of the Sea Convention, http://www.gc.noaa.gov/gcil_los.html (last visited April 27, 2017);
see also UNCLOS Sections II and V, at 27, 43; Martin Lishexian, The Interrelation Between the Law of the Sea and
Customary International Law, 7 SAN DIEGO INT‟L L.J. 405 (2006) (suggesting that the Law of the Sea may bind
nonparties).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

in UNCLOS regarding management and utilization of living marine resources,8 and other
international agreements9 to which the United States is a party. These agreements impose both
rights and obligations on the United States in its management of domestic fisheries.

The purpose of this paper is to examine some of the main provisions of UNCLOS and the
Magnuson-Stevens Act, particularly with regard to the management and development of the
living resources of the sea. The paper analyzes relevant issues in light of the experience and
policy options adopted by the United States and their possible coordination and harmonization
with the international instrument; including factors which may have influence the current trends
in the practice of the United States. Part I gives a brief overview of UNCLOS and the Magnuson-
Stevens Act, with a description of zones of maritime jurisdiction. Part II forms the bulk of the
paper and addresses the legal aspects of UNCLOS and Magnuson-Stevens Act. The first part
begins with the identification and discussion of some issues, such as preventing overfishing and
rebuilding overfished fish population, illegal, unregulated, and unreported (IUU) fishing, which
overlaps with monitoring, control and surveillance, as it affects fishery conservation and
management within the EEZ. The paper further discusses the current legal framework governing
fishery management and conservation under the Magnuson-Stevens Act, describing some of the
provisions and highlighting their significance in relation to UNCLOS. Part II focused on dispute
resolution mechanisms under UNCLOS, how they affect illegal, unregulated, and unreported
(IUU) fishing, preventing overfishing and rebuilding overfished fish population, reducing
bycatch, inter alia both in the international and the United States context. The paper ends in Part
III, with conclusion and recommendations being based largely on the issues discussed in Part II.

8
UNCLOS, supra note 6, at 45-46. Article 61 of UNCLOS provides that coastal nations ensure that “the
maintenance of living resources in exclusive economic zone is not endangered by over-exploitation,” that
conservation and management measures “shall … be designed to maintain or restore population of harvested species
at levels which can procedure the maximum sustainable yield,” and that such measure “take into consideration the
effects on species associated with or dependent upon harvested species with a view to maintaining and restoring
populations of such associated or dependent species above levels at which their reproduction may become seriously
threatened.” Id. at 420-21. Article 62 requires that if coastal nations “[do] not have the capacity to harvest the entire
allowable catch” of particular species, they shall “give other States access to the surplus of the allowable catch,”
giving priority in access to underdeveloped and landlocked nations. Id. at 421.
9
The United States is a party to fishing treaties, including the International Convention for the Conservation of
Atlantic Tuna, and “soft law” agreements, such as the United Nations Food and Agriculture Organization‟s Code of
Conduct for Responsible Fisheries (1995), http://www.fao.org/fishery/code/en (last visited April 28, 2017).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

1. Overview of UNCLOS and the Magnuson-Stevens Act

1.1 Maritime Jurisdiction Zones and UNCLOS
The UNCLOS also referred to as the „Constitution‟ of the oceans, adopted in 1982 and
came into force 1994 provides the framework for the conservation and management of fisheries
and other uses of the sea, and provides the basis for national, regional, and global action and
cooperation in the marine sector. It recognizes seven zones of maritime jurisdiction, namely
Internal waters,10 Territorial Sea,11 Contiguous Zone,12 Exclusive Economic Zone (EEZ),13
Continental Shelf,14 the High Seas15 and the Area, and each have different legal status.

The Convention gives coastal states the rights and responsibility for the management and
use of fishery resources within their national jurisdiction (the territorial sea, which extend 12
nautical miles off the shore). It also recognizes the coastal states‟ right to claim an exclusive
economic zone (“EEZ”) of up to 200 nautical miles off the shore. The management goal adopted
by UNCLOS is basically that of maximum sustainable yield, qualified by environmental and
economic factors.16

However, within the Mediterranean region, the majority of states have established their
12-miles territorial waters except for Greece and Turkey. However, a few countries are in the
process of claiming an EEZ because of the difficulties associated with delimitation of EEZ in a
relatively narrow sea, and because most states prefer to maintain basin-wide access fisheries, few
have claimed an EEZ. As a result, there is a large area of the high seas in the Mediterranean
which requires cooperation between coastal states to ensure the sustainable use of fisheries
resources and the conservation of marine biodiversity within it.

10
UNCLOS supra note 6, at 28. Article 8 provides that water on the landward side of the baseline of the territorial
sea form part of the internal waters of the state, and as such treated as part of the sovereign territory of the coastal
state subject only to the limited right of innocent passage.
11
Id. at 27 (Article 2(1)).
12
Id. at 35 (Article 33(2)).
13
Id. at 44 (Article 57).
14
Id. at 53 (Article 76(6)).
15
Id. at 57. In terms of Article 86, the high seas apply to all parts of the ocean, not part of the EEZ, territorial sea,
and internal waters of any state, including the archipelagic waters of an archipelagic State.
16
Id. at 46 (Article 61(3)).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

1.2 Maritime Jurisdictional Zones and the Magnuson-Stevens Act

The Magnuson-Stevens Act is the primary law governing marine fisheries management
in the United States federal waters. The Act in 1976 established a Fishery Conservation Zone
(FCZ), extending the U.S. jurisdiction to 200 nautical miles seaward from the outer boundary of
state waters. By this, the Act claims U.S. exclusive control over virtually all living marine
resources within the 200 miles, limiting foreign fishing by giving priority to domestic fishing.
The National Marine Fisheries Service (NMFS) within the NOAA of the U.S. Department of
Commerce is the federal body generally responsible for the day to day implementation of the
Act.17 The Act seeks to promote U.S. fishing industry‟s optimal exploitation of coastal fisheries
by consolidating control over territorial waters and established eight regional councils18 to
manage fish stocks.

At a glance, the Act seems to be strongly exploitative in orientation. The Act stated as its
objective “to promote domestic commercial and recreational fishing under sound conservation
and management principles,”19 and the debate surrounding its passage focused, in part, on the
need to develop the domestic fishery industry. A closer look however at the Act and a review of
the management system it established, indicates that it has a strong conservation orientation. The
Act creates a complex management system that operates under a “National Standards for Fishery
Conservation and Management.”20 These standards codify principles of sustained yield
management of marine fisheries for the first time, forcing government decision-makers to take
into account new biological, economic and social issues. As a result, the Act prohibits
overfishing,21 require the use of best scientific information available,22 discourage duplication,23
and require that fishing managers take long-term natural and man-made variations in fish stock
into account.24 This inclusion of the phrase “conservation and management measures” at the start

17
NFMS programs are described in details at http://www.nmfs.noaa.gov/ (last visited May 1, 2017).
18
The eight U.S. regional fishery management councils are the Western Pacific, the North Pacific, the Pacific, the
Gulf of Mexico, the New England, the Mid-Atlantic, the South Atlantic, and the Caribbean Regional Fishery
management Councils. The links to individual council websites are available at
http://www.nmfs.noaa.gov/sfa/management/councils (last visited May 1, 2017).
19
Magnuson-Stevens Act, supra note 3, at 2 (§ 1801(b)(3)).
20
Id. at 58 (§ 1851(a)).
21
Id. § 1851(a)(1).
22
Id. § 1851(a)(2).
23
Id. § 1851(a)(7).
24
Id. § 1851(a)(6).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

of each seven national standards is an indication that fishery management will be a continuing
process on long-term basis.

2. Legal aspects of UNCLOS and the Magnuson-Stevens Act

2.1 Fishery Conservation Management and Current Challenges
In order to understand some of the issues associated with conservation and management of
fishery resources discussed in this paper, some knowledge of what constitute conservation and
management under UNCLOS and the Magnuson-Steve Act will be discussed briefly. The Act
defines conservation and management measures as all rules, regulations, and other methods:

(A) which are required to rebuild, restore, or maintain ... [a] fishery resource
and the marine environment; and (B) which are designed to assure that-
(i) a supply of food and other products may be taken, and that recreational
benefits may be obtained, on a continuing basis;
(ii) irreversible or long-term adverse effects on fishery resources and the
marine environment are avoided; and
(iii) there will be multiplicity of options available with respect to future uses of
these resources (emphasis added).25

On the other hand, the UNCLOS did not provide a clear definition of what is meant by
conservation and management, but the Convention however addresses fishery conservation and
management in two maritime zones, namely, the high seas and the EEZ. The Convention
recognizes that coastal states have sovereign rights within the EEZ to explore, exploit, conserve
and manage nonliving and living natural resources.26

Nonetheless, a closer examination of the seven standards in the Magnuson-Stevens Act

alluded to in Chapter 1 above reveals a rather subtle but significant differences. The standards
concerning administrative and jurisdictional matters such as promoting efficiency, minimizing
costs and duplication, and managing fish stocks without regard to jurisdictional boundary need
only be taken into account where practicable. The remaining four standards, however, directly
address substantive fishery conservation and management issues which provide the link between
protection of marine habitat and successful implementation of the Act. Standard number one
25
Id. at 5 (§ 1802(5)).
26
UNCLOS, supra note 6, at 43 (Article 56 (1)(a)).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

states that “[c]onservation and management measures shall prevent overfishing....”27 Standard
number two requires that “[c]onservation and management shall be based upon the best scientific
information available.”28 Standard number four dictates that “[c]onservation and management
measures shall not discriminate between resident of different [s]tates ...” and requires that
management measures be fair and equitable.29 Finally, standard number six mandates that
“[c]onservation and management measure shall take into account and allow for variations among
... fisheries, fishery resources, and catches.”30 The implications of these standards will be
discussed further in the subsequent sessions as I consider the issues – preventing overfishing and
rebuilding overfished fish stock, illegal, unreported, and unregulated (IUU) fishing, inter alia -
with fishery conservation and management from international and domestic perspectives under
the Magnuson-Stevens Act and UNCLOS.

(a) Preventing Overfishing and Rebuilding Overfished Fish Population

Overfishing is a classic example of the tragedy of the commons. It has significantly
affected many fisheries around the world, and considered one of the major concerns faced in
fishery management. About 85% of the world‟s fisheries may be over-exploited, depleted, fully
exploited or in recovery from exploitation.31 Overfishing occurs when more fish are caught than
the population can replace through natural reproduction. Basically, it happens when the rate of
removal from stock32 is too high. Overfishing is different from overfished. Overfished is when a
fish population is too low, or below a prescribed threshold. Then, it is considered overfished. The
distinction between overfishing and overfished is necessary, partly, because overfished fish stock
can be managed under a rebuilding plan that returns the population to its optimal levels over
time. While overfishing basically has to do with fishing behaviour that can lead to fish stock to
be overfished.

27
Magnuson-Stevens Act, supra note 3, at 58 (§ 1851(a)(1)).
28
Id. § 1851(a)(2).
29
Id. § 1851(a)(4).
30
Id. § 1851(a)(6).
31
GAIA VINCE, How the world’s oceans could be running out of fish, BBC, September 21, 2012,
http://www.bbc.com/future/story/20120920-are-we-running-out-of-fish (last visited May 2, 2017).
32
Marine fish species are generally managed on the basis of “stock” or population. A management stock can be
defined as that portion of the entire population of a species which is under consideration for actual or potential
population. Managers therefore try to shape the boundaries of a management unit according to biological parameters
such as genetic similarities, or the location of spawning grounds and migration routes. However, precise boundaries
are difficult and migration in and out of a particular stock can occur, frustrating sustainable yield estimates.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

Because fishing has long been an industry used by humans, there are a number of reasons
why it is a problem today. Some of the identified causes of overfishing include, the difficulties in
regulating fishing areas dues to scarcity of resources and tracking of activity; also most areas in
the world have a total lack of oversight related to their fishing industry, which means the
practices and activities of fishing fleets are not or barely monitored; there are little to no rules
regarding fishing practices in international waters, which means fishing fleets can bypass areas
that do have regulations; lack of knowledge regarding fish populations and quotas in a universal
standard; problems with customs and importation where the place of origin of fish is not
questioned, leading to practices such as calling one kind of fish something else; unreported
fishing, which is nearly impossible to track; as well as the fact that fishing areas are largely
unprotected – only a little over 1.17% of oceans have been declared protective areas,33 and most
of these areas are still open to fishermen. This means that areas can be harmed or depleted.

As noted earlier, the National Standard 1 prohibits overfishing, and is perhaps the most
strongly worded fishery management requirement in the Magnuson-Stevens Act. The standard
states that “[c]onservation and management measures shall [be taken to] prevent overfishing
while achieving, on a continuing basis, the optimum yield from each fishery.”34 An assessment
from the biological concepts of the terms “overfishing” and “optimum yield” reveals that the
Magnuson-Stevens Act is strong on conservation commitments, and provides the link between
implementation of the Act and protection of critical marine habitat. The Act defines
“overfishing” to “mean a rate or level of fishing mortality that jeopardizes the capacity of a
fishery to produce maximum sustainable yield on a continuing basis.”35 And the Sustainable
fisheries Act,36 which amended the definition of “optimum” as provided for in the Magnuson-
Stevens Act, defined “optimum” to mean the “amount of fish which .. is prescribed as such on
the basis of the maximum sustainable yield from the fishery, as reduced by any relevant
economic, social, or ecological factors” (emphasis added).37 The emphasis on conservatory
management of fisheries is needed to overcome overfishing.

33
IUCN, Global Ocean Protection: Present Status and Future Possibilities (2010),
https://portals.iucn.org/library/sites/library/files/documents/2010-053.pdf.
34
Magnuson-Stevens Act, supra note 3, at 58 (§ 1851(a)(1)).
35
Id. at 11.
36
Pub. L. No. 104-297, 110 Stat. 3559 (1996), http://www.nmfs.noaa.gov/sfa/sustainable_fishereries_act.pdf.
37
Id. at 3562.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

i. The Maximum Sustainable Yield Concept under UNCLOS and the

Magnuson-Stevens Act
In fisheries terms, maximum sustainable yield (MSY) is the largest average catch that can
be captured from a stock under existing environmental condition. The MSY approach aims at a
balance between too much and too little harvest to keep the population at some intermediate
abundance with a maximum replacement rate, because of the assumption that a stock of fish
produces its greatest harvestable surplus when it is at an intermediate level of abundance. As a
result, when an unharvested stock is at its maximum density, reproductive efficiency is reduced.
Therefore, if there are many old, slow growing fish population, a fishery management plan is
introduced to increase stock production by removing older fish of harvestable size, reducing
competition with other sectors of the population, thereby increasing growth and reproductive
success in the stock as a whole.

Article 116 of UNCLOS illustrates that the freedom of fishing is subjected to

conservation and management of the marine living resources, and as a result while “a coastal
state has sovereign rights over the fish stocks, it has an international duty to conserve those
stocks,” for instance through respecting the MSY (also referred to as total allowable catch).
Numerous articles of the Convention expressly make it necessary for states to ensure
conservation and healthy usage of fish stocks. In particular, Article 119 of the Convention
requires that states account for scientific measures to ensure sustainability of fish populations,
through implementation of the principle of MSY. Clearly embedded in UNCLOS are elements of
development, specifically through right of access to the seas and subsequently nautical mobility
regardless of geography or territorial location. This freedom however is conditional upon the
respect for international regulations such as careful usage of the seas, as access to the seas
includes accountability for both the prevention of polluting maritime resources and otherwise
minimizing harm to the living resources.38

Given the universal nature of the Convention and the acceptance by states to the
principles of conservation and resource management for fisheries, especially the cornerstone
issue of enforcing the MSY for fisheries demonstrates a widespread recognition by states of

38
UNCLOS, supra note 6, at 55 (Article 81(1)-(2)).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

sustainable fishing as legal norm. For that reason, the principle of MSY has been adopted as a
key principle of fisheries conservation dually found in both the high seas and within the EEZ.

In addition to the provisions of UNCLOS, the Fish Stocks Agreement39 of 1995

emphasized the role of regional organizations in managing straddling and migratory stocks. This
agreement in essence acts as an extension of UNCLOS as it provides greater detail as to measures
parties can institute to give effect to the Convention by focusing on conservation and
management of straddling and migratory fish stocks.40 It obligates parties to implement measures
to ensure optimum exploitation of fish stocks through express application of the principle of
MSY.41 For instance, Article 64 of UNCLOS together with the Fish Stocks Agreement
specifically address management of tuna stocks and expresses that were tuna is found in the
EEZ, the “coastal state and other states fishing in the EEZ or on the high seas beyond it have a
duty to cooperate in the conservation and management of species.”

By definition, while UNCLOS provides the international community with a

comprehensive legal framework regarding the law of the sea, it acts as a broader foundation
through which subsidiary agreements translated into more specified agreements which give
meaningful effect to UNCLOS provisions, such as agreements relating to specific species of fish
stocks. This again re-affirms that the conservation of fish stocks, particularly through the
exercise of MSY, is accorded national and international attention. The various fisheries regimes
demonstrate a consistency in language and spirit as specifically including terminology of
conservation, management, and sustainability, making it clear that these concepts should guide
their daily fishing practices.

The sustainable yield management principles found in the national standards have
implications beyond those found in the statute (the Magnuson-Stevens Act) itself. The Act gives
the federal government exclusive management authority over virtually all living resources in an

39
U.N., Fish Stocks Agreement of 1995 (Hereinafter as the “Fish Stocks Agreement”),
http://www.un.org/depts/los/convention_agreements/convention_overview_fish_stocks.htm (last visited May 2,
20017).
40
Id. at 4. (Article 2).
41
Id. at 5. (Part II, Article 5).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

ocean area two-third the size of the land area of the United States.42 This authority, which is
governed by the seven national standards, elevates the importance of marine fisheries placing
new responsibilities upon the federal government. Thus the Act is, in part, an organic statute
creating a new management system similar to statutes establishing national parks and forests and
the U.S. claim over the mineral resources of the Outer Continental Shelf. Each of these resources
is governed by statutory and common law duties expressed by a doctrine of “public trust”43 and
requiring wise and careful management with a strong emphasis on conservation. Additionally,
the Act‟s passage increases the importance of fisheries in federal management of all marine
resources. If the principles envisioned in the Act are to succeed, institutional mechanisms that
govern the federal management of marine resources must be strengthened and enforced in
conformity with international fishery legal regimes.

In National Resources Defense Council v. Daley,44 the D.C. Circuit had to decide on the
legality of a summer flounder quota that had only 18% chance of preventing overfishing. 45 The
district court held that the quota was acceptable, reasoning that NFMS had properly balanced
National Standard 1 and 8.46 The court concluded that Congress gave the NFMS broad authority
and the councils that allowed them to interpret “the conservation of the [Magnuson-Steven Act]
given the multitude of variables and interests.”47 But this decision was overturned by the D.C.
Circuit, which rejected the court a quo’s suggestion that there is a conflict between the Act‟s
expressed commitments to conservation and to mitigating adverse economic impacts.48

Although it is widely practiced by state and federal government agencies regulating

wildlife, forests, and fishing, MSY has its shortcomings. The concept is not always easy to apply
in practice. One of the problems identified with the MSY approach is the lack of reliability of
data. Several factors, including climate change, monitoring and surveillance among others, could

42
THE WORLD BANK, Land area (sq. km), http://data.worldbank.org/indicator/AG.LND.TOTL.K2?locations=US (last
visited May 2, 2017).
43
The “Public Trust” doctrine is the principle that certain natural and cultural resources are preserved for public use,
and that the government owns and must protect and maintain these resources for the public‟s use. For example,
under this doctrine, the government holds title to all submerged land under navigable waters.
44
209 F.3d 747 (D.C. Cir. 2000).
45
DONALD C. BAUR et al., Ocean and Coastal Law and Policy 312 (2d ed. 2015).
46
Id.
47
Id.
48
Id. at 313.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

be attributed to this difficulty. For example, biologists do not always have enough data to make a
clear determination of the population‟s size and growth rate, and calculating the point at which a
population begins to slow from competition is also very difficult. Also from a management
perspective, the static interpretation of MSY is generally not appropriate for the reason that it
ignores the fact that fish populations undergo natural fluctuations in abundance and will usually
ultimately become severely depleted under a constant-catch strategy. Despite these limitations of
MSY, it performs better than humans using their best intuitive judgment.

In addition to prohibiting overfishing, the Magnuson-Stevens Act also required

populations of overfished species to be rebuilt through the adoption of a fishery management
plan. The rebuilding provisions of the Act, section 1854(e), had at least two objectives. The first
was to fill an obvious void in the statute, which did not specify what the councils were to do once
a stock becomes overfished, even though National Standard 1 provides that councils were to
prevent overfishing. As a result, a stock could remain in this status indefinitely. The second
objective was to limit the amount of time managers could take to rebuild fish populations. But
the language of the rebuilding period provisions in not clear. The Act provides that rebuilding
timeline should be “as short as possible,” and it went further to define “as short as possible” as a
time period that does “not exceed ten years.”49 Additionally, it states that rebuilding plans may
exceed ten years “where the biology of the stock of fish, other environmental conditions, or
management measures under an international agreement in which the United States participates
dictates otherwise.”50 The ambiguity of language raises the question whether there are any time
limits on rebuilding fish stock once a council makes determination.

In Natural Resources Defences Council v. NMFS,51 the Ninth Circuit had to consider the
NMFS regulation interpreting section 1854(e) (4)(A). The agency updated its stock assessment
for darkblotched rockfish and concluded that the species was in far worse shape than previously
thought, and “switched from operating under the statutory constraint of 10 years rebuilding time
to ... 47 years” pursuant to the guidelines, and “in accordance with this target, actually raised the

49
Magnuson-Stevens Act, supra note 3, at 92 (§ 1854(e)(4)(A)).
50
Id.
51
421 F.3d 872 (9th Cir. 2005).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

fishing quota for 2002 from the previous year‟s 130 metric tons to 168 metric tons.”52 The court
found that the regulation could not be reconciled with Congress‟s intent as construed in the “as
short as possible” language of section 1854(e)(4)(A)(i),53 and concluded that NMFS‟s
interpretation of the statute is unreasonable. In fact, the court in partial agreement with the
plaintiff‟s submission stated that:
Although [Natural Resources Defense Council‟s] interpretation of the statute is
reasonable, it is not the only reasonable one. It is also reasonable to conclude
that the needs of the fishing communities may still be taken into account even
when the biology of the fish dictates exceeding the 10-year cap – so long as the
weight given is proportionate to the weight the Agency might give to such
needs in rebuilding periods under 10 years. This interpretation would allow the
Agency‟s rebuilding periods to account for short-term concerns such as
bycatch in the same manner whether the rebuilding period exceeds 10 years or
not.54

Although this decision did not offer clear guidance with regard to council‟s future
decision regarding the “10-plus” rebuilding timeline, it posits that agency upon discovering that a
species in significantly worse sharp than previously thought could increase dramatically the
fishing pressure on the species.55

(b) Illegal, Unreported, and Unregulated (IUU) Fishing

Illegal, unreported, and unregulated (IUU) fishing has been defined variously by different
studies, each depending on the exact focus of the study. In general, IUU is commonly understood
to refer to fishing activities carried out in a manner inconsistent with or in contravention of, the
conservation and management measures in force for a particular fishery. However, the most
suitable for the purpose of this paper is that given by the FAO International Plan of Action to
Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).
According to this document, illegal fishing refers to activities:
1. conducted by national or foreign vessels in waters under the jurisdiction of
a State, without the permission of the State, or in contravention of its laws
and regulations;

52
Id. at 876.
53
Id. at 880.
54
Id. at 811 (quoting BAUR et al., supra note 43, at 314).
55
BAUR et al., supra note 43, at 314.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

2. conducted by vessels flying the flag of States that are parties to a relevant
regional fisheries management organization but operate in contravention of
the conservation and management measures adopted by that organization
and by which States are bound, or relevant provisions of the applicable
international law; or
3. in violation of national laws or international obligations, including those
undertaken by cooperating States to a relevant regional fisheries
management organization.56

Thus, this can apply to national vessels licensed to fish in an adjacent area that have
crossed the boundary to fish in an area where they are not licensed; and to vessels fishing on the
high seas that cross the boundary for the same purpose.
Unreported fishing refers to fishing activities:

1. which have not been reported, or have been misreported, to the relevant
national authority, in contravention of national laws and regulations; or
2. undertaken in the area of competence of a relevant regional fisheries
management organization which have not been reported or have been
misreported, in contravention of the reporting procedures of that
organization.57

Unregulated fishing refers to activities:

1. in area of application of a relevant regional fisheries management

organization that are conducted by vessels without nationality, or by those
flying the flag of a State not party to that organization, or by a fishing
entity, in a manner that is not consistent with or contravenes the
conservation and management measures of that organization; or
2. in areas or for fish stocks in relation to which there are no applicable
conservation and management measures and where such fishing activities
are conducted in a manner inconsistent with State responsibilities for the
conservation of living marine resources under international law.58

Therefore, by its very definition, IUU fishing involves, affects and is engaged in by all
types of fishing vessels both domestic and foreign irrespective of size or gear at any given time.
IUU fishing activities may overlap. For example, illegal fishing is also unreported by its nature.

56
FAO Guidelines, Implementation of the International Plan of Action to Prevent, Deter and Eliminated Illegal,
Unreported and Unregulated Fishing 4-5 (2002), http://www.fao.org/3/a-y3536e.pdf.
57
Id.
58
Id.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

Therefore, it is important to note that the term will be used to describe specific situations such as
fishing within coastal state waters without coastal state permission, or fishing within regional
fisheries management organizations (RFMOs) waters by a flag vessel of a state party in
contravention of the relevant RFMO conservation measures. In this context, illegal fishing would
be more accurate to describe the factual situation.

This worldwide problem has been around for a long time59 but has only until recently
gained international concern, brought about by the recognition of the international community of
its significant contribution to the global downward trend of fish stocks. The United Nations Food
and Agricultural Organization (FAO) considers IUU fishing a serious threat to high-value
fisheries that are already overfished; to marine habitats, including vulnerable marine ecosystems;
and to food security and the economies of developing countries.

(i) IUU Fishing and UNCLOS

The creation of the EEZ under UNCLOS caused the relocation of high seas vessels
beyond the newly declared EEZs, and an important factor in understanding IUU fishing. In
addition to the inevitable impact upon resource management, the reduction and restriction of
high seas freedoms challenge the fundamental belief in the freedom of those seas mainly for the
purpose of protecting navigational and fishing rights. Thus, the creations of EEZs excluded high
seas fishing states from waters that had, until 1982, been regarded as traditional high seas and
consequently open to the exercise of the right of the freedom of fishing. In terms of Article 62 of
UNCLOS, other states have access to the surplus allowable catch where the coastal state does not
have capacity to harvest the entire allowable catch within the EEZ. The effect of this provision
was the exclusion of high seas fishing states from participation in these fisheries without
permission of the coastal State. As a result, the high seas fishing states and their vessels were
forced to seek catches from waters beyond the 200 nautical miles from the coast subject to the
limitations within Articles 116-19 of UNCLOS.

59
De Gallie B., Cox A., An Economic Analysis of IUU: Key Drivers and Possible Solutions 689-695 (Marine Policy
30 (2006)).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

However, the advancement in technology and the resulting improved efficiency of

vessels, coupled with a greater number of fishing vessels, has been catastrophic for many fish
species. It is now widely accepted within the scientific community that “ecological extinction
cause by over-fishing precedes all other persuasive human disturbance to marine ecosystems,
including pollution, the degradation of water quality and climate change.”60 Between 1950 and
1995, the global marine catch increased from 18 million tons to 84.3 million tons.61 This
represents an increase of 368 percent. There is therefore the need to take urgent action to address
this problem as it could affect global fisheries in general.

Article 91 and 94 of UNCLOS reflect the extent to which the international community
was able to agree on the nature of flag state responsibility. A closer examination revealed that
under international law, flag state responsibility is a conceptual ideal rather than a reality.

(ii) The “Genuine Link” Requirement under UNCLOS

The obligations on flag states in UNCLOS have been accepted 168 states and reiterated in
the FAO Compliance Agreement62 and the FAO Code of Conduct.63 Flag state responsibility is
addressed in Article 94, and requires every state to “effectively exercise its jurisdiction and
control in administrative, technical and social matters over ships flying its flag.” In terms of the
right to grant flag status to vessels, Article 91(1) requires that “every [s]tate shall fix the
conditions for the grant of its nationality to ships, for the registration of ships in its territory, and
for the right to fly its flag.”64 In addition, Article 91 provides that “there must exist a „genuine
link‟ between the State and the ship.”65 There is however no definition of what constitutes a
„genuine link‟. However, the terms of Articles 91 and 94 are very general in nature and unhelpful
in creating a benchmark against which the exercise of flag states responsibility can be gauged.
Similarly, it is difficult to prove the absence of a „genuine link‟ or flag state control.

60
JEREMY JOHNSON et al, Historical overfishing and the Recent Collapse of Coastal Ecosystems 293 (2001).
61
Id.
62
Opened for signature 24 November 1993, 33 ILM 696 (entered into force April 24, 2003) (hereinafter as “FAO
Compliance Agreement”).
63
FAO, Code of Conduct for Responsible Fisheries 1995 (hereinafter as “FAO Code of Conduct”). It was adopted at
the 28th Session of the FAO Conference October 31, 1995. The FAO Code of Conduct is voluntary in its application;
however it does refer to and rely upon rules of customary international law.
http://www.fao.org/docrep/005/v9878e/v9878e00.htm (last visited May 2, 2017).
64
UNCLOS, supra note 6, at 58.
65
Id.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

The FAO Compliance Agreement is also silent on a definition of the term. However, the
question has been considered by the International Tribunal for the Law of the Seas (ITLOS) in
Saint Vincent and the Grenadines v. Guinea.66 On October 28, 1997, a Guinean patrol boat
arrested an oil tanker, the Saiga, near the Guinean EEZ, and of the many issues canvassed during
the case was the legitimacy of the “hot pursuit” conducted by Guinea under Article 111 of
UNCLOS. Guinea argued that the Saiga was not registered in Saint Vincent and the Grenadines
at the time of the arrest and therefore did not have Vincentian nationality at the relevant time, as
such no genuine link exist between the state and the vessel. The ITLOS however rejected
Guinea‟s submission, and concluded that:
the provision of the Convention on the need for a genuine link between a ship
and its flag State is to secure more effective implementation of the duties of the
flag State and not to establish criteria by reference to which the validity of the
registration of ships in a flag State may be challenged by others. The Tribunal
also stated that there is nothing within the wording of art 94 to permit a state
which discovers evidence indicating the absence of proper jurisdiction and
control by a flag state over a ship to refuse to recognise the right of such a ship
to fly the flag of the state.67

The absence of a reference to nationality in Article 91 and 94 of UNCLOS led the

Tribunal to come to this conclusion, and this observation further reinforces the customary
international law principle of flag state authority. Whilst the ITLOS‟s conclusion is correct in
law, it does highlight the limited value of current flag state responsibilities. In practice, the
requirement in UNCLOS that a „genuine link‟ exist between State and ship has not been effective
in fostering flag state responsibility, and an example of the limitations of international law as an
example of the corporatization of IUU fishing.

(iii) The Role of Regional Bodies and IUU Fishing

The very nature of international law as a consensual arrangement between states is
premised upon the principle of pacta tertiis rule. This principle simply means that treaties do not
create either obligations or rights for third states without their consent. Its operation also exposes

66
THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEAS, M/V Saiga (No 2) case (1999),
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_2/merits/Judgment.01.07.99.E.pdf.
67
Id. at 82-83.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

a weakness in international law. In practical terms, this means that regional efforts to manage
high seas fisheries can be undermined either by noncompliant third party states or by states who
do „sign up‟ to the relevant convention but exercise their right to avoid compliance with selected
measures. For example, in terms of Article IX (6) CCAMLR, contracting parties may notify the
Commission of their intention not to comply with a conservation measure within 90 days of
receipt of notification of any new measure.68 Other regional fisheries conventions with similar
provisions to opt out of conservation measures include the Convention on Future Multilateral
Co-operation in the Northwest Atlantic Fisheries and the Convention on the Conservation and
Management of Pollock Resources in the Central Bering Sea. In the context of identifying
strategies for the elimination and deterrence of IUU fishing, the consent of flag states is required
to impose tighter, more effective flag state control. Flag state consent is also required for the
effective implementation of the Catch Documentation Scheme (CDS) and the Vessel Monitoring
System (VMS) – both of which have been adopted by CCAMLR – in addition to any further
limitations on the freedoms of high seas fishing states.

Coastal states have the authority to regulate fishing activities within their EEZ. However
the enforcement of that authority is governed, inter alia, by Articles 73 and 111 of UNCLOS.
Article 73 allows coastal state to exert its sovereign rights to “explore, exploit, conserve and
manage the living resources in the [EEZ], taking measures, including boarding, inspection, arrest
and judicial proceedings ... in conformity with this Convention.”69 In the event that a foreign
vessel is arrested within a coastal state‟s EEZ, the arresting state has an obligation under Article
73(2) to release the vessel and crew promptly upon the “posting of a reasonable bond or other
security.”70 Nonetheless, there have been a number of applications for prompt release under
Article 292 of UNCLOS in the short period since the inception of ITLOS.71 Under this Article
292, where a vessel flying the flag of another State Party is detained by arresting State Party and
it is alleged that the detaining state has not complied with the provisions of UNCLOS for the
vessel‟s prompt release, the question of release may be submitted, inter alia, to ITLOS. In the
application for prompt release, Australia, the respondent state, raised concerns about the pressure

68
CCAMLR, https://www.ccamlr.org/en/organisation/camlr-convention-text (last visited May 2, 2017).
69
UNCLOS, supra note 6, at 52.
70
Id.
71
International Tribunal for the Law of the Seas, List of Cases, https://www.itlos.org/en/cases/list-of-cases.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

on flag states to make such applications and the utilization of these applications as a means of
“evading and undermining relevant coastal state enforcement measures.”72 Both New Zealand
and France supported the Australian submission via diplomatic notes. New Zealand observed
that ITLOS has a role to play in discouraging the scourge of IUU fishing activity in the Southern
Ocean.73 France, on the hand, made an even stronger statement noting that “[t]he French
authorities are deeply concerned by the fact that the frequent resorting to Article 292 of
[UNCLOS] may be an obstacle to sustained efforts aimed at combating illegal fishing.”74

At this point, preference should be give to the approach taken on this issue by the
dissenting judges. Quite correctly, Judge ad hoc Shearer noted that the balance struck between
the interests of coastal states in managing resources within their EEZs and those of flag states
over their vessels, established in UNCLOS need not be “preserved exactly as it was conceived.”75
Regarding the role of the Tribunal in supporting coastal state‟s attempt to deter IUU fishing
incidence, the learned Judge noted that under Article 19(2) of the United Nations Fish Stocks
Agreement,76 the necessity of deterrence is specifically recognized. National courts must take
into account the gravity of the offenses committed to set a penalty aimed at deterring further IUU
fishing activities. Arguably both Australia and France has sought to do this. The role of the
Tribunal therefore is to be fully aware and supportive of these aims. It follows that the bond set
under Article 73 of UNCLOS ought to reflect the gravity of offences committed under national
legislation.

(iv) IUU Fishing and the Magnuson-Stevens Act

IUU fishing deprives legitimate fishermen of harvest opportunities. In the United States,
illegally caught seafood imported into the U.S. is estimated to cost U.S. fishermen about $1
billion, or 19% of total revenues from their catch, as a result of price suppression alone, and

72
Volga Case ITLOS Case No 11, at 6-7 (Transcript of Proceedings, Judge Campbell, Dec. 12, 2002).
73
Id. at 7.
74
Id.
75
Volga Case ITLOS Case No 11 (Unreported, Dissenting Opinion of Judge ad hoc Shearer, Dec. 23, 2002) 19.
76
UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Agreement on the Implementation of
the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Article 19(2), (1995) (hereinafter as
“UNFSA”) http://www.un.org/depts/los/convention_agreements/convention_overview_fish_stocks.htm.

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

could in a longer term cause depletion of global fish stocks. IUU fishing further exacerbates the
problem of discards and bycatch, because vessels engaged in illegal activities are likely to
engage in unsustainable fishing practices and use nonselective gear. As fishery management
within the United States EEZ and illegal fishing is considered, there is the need to clarify that
coastal states have “sovereign rights” to explore, exploit, manage and conserve all living and
non-living resources of the sea and not “ownership” of the resources. Sovereign rights as
specified in the Convention does not constitute “sovereignty” which would necessary encompass
“ownership,” thereby implying automatic vesting of property rights of the coastal states to the
living and non-living resources of the sea found within its EEZ. In point of fact as well law, no
right of ownership over the living resources of the could have been transferred to the coastal state
or agency exercising fishery management authority. Nor do the transboundary species of all sizes
and ages recognize the sovereignty or ownership by any coastal state. Neither sovereign rights
nor indeed fishery management authority can be identified with “sovereignty” of the coastal
State.

As a coastal State, the United States‟ interests in management and development of

fisheries within its EEZ should not, and cannot, be any different from those of other coastal
States, to ensure through proper conservation and management measures that the maintenance of
living resources is not endangered by over-exploitation. So what approach has the U.S. adopted
in combating IUU fishing within its EEZ and the high seas? The Magnusson-Stevens Act is the
main regulation currently governing the fisheries sector in the United States. It amends,
consolidates and attempts to streamline all the existing fisheries laws to address IUU fishing and
emerging issues whilst conforming to national and international fishery resource conservation
and management strategies. By its definition, the Act sets out to integrate international fisheries
agreements into American national legislations. It emphasized the importance of fishery
conservation and management by strengthening other legislation to protect the marine habitat,
and fish populations from unsustainable fishing practices. As a result, the U.S. involvement in
international efforts to combat IUU fishing cover tools such as IUU vessel lists; stronger port
State controls; improved monitoring, control, and surveillance (MCS); market-related measures
to help ensure compliance; and capacity building assistance towards suppression of IUU fishing
within its waters. Before discussing the strategies adopted to tackle this problem, it important to

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

note that Congress has, in fact, done much in passing and amending series of legislations to
address this concern.

The United States robust legislative portfolio enacted to deal with IUU fishing, in
addition to the Magnuson-Stevens Conservation and management Reauthorization Act (which
amended the High Seas Driftnet Fishing Moratorium Protection Act77 (Moratorium Protection
Act), directing the Executive Branch to strengthened its leadership role in international fisheries
management and enforcement, particularly with regard to IUU fishing and unsustainable fishing
practices such as bycatch of protected living marine resources (PLMRs)), include the Shark
Conservation Act of 2010 (SCA)78 (which further amended the Moratorium Protection Act to
add a third focus: directed at incidental catch of sharks, especially the practice of finning, in
areas beyond national jurisdiction), the Illegal, Unreported, and Unregulated Fisheries
Enforcement Act of 2015 (“IUU Fisheries Enforcement Act”)79 to strengthen enforcement tools
and implementation of two important treaties, and the Ensuring Access to Pacific Fisheries Act80
passed in 2016 (which further amended the Moratorium Protection Act, and allowed the U.S. to
join regional fisheries management organizations (RFMOs) and to implement amendments to
another RFMO convention) inter alia.

(c) The United States’ Fishery Policy and Practical Implementations

The Magnusson-Stevens Act inter alia established the U.S Fishery Conservation Zone
(FCZ) extending exclusive management authority of the United States over all stocks, all
anadromous species spawning in the fresh and estuarine waters of the United States, and all
living resources of the U.S. continental shelf.81 It is worthy of notice that highly migratory
species such as tuna are specifically omitted from inclusion under U.S. management. The Act
further authorized the U.S. government to negotiate treaties Governing International Fishery
Agreements (GIFA) with governments of other countries to award foreign flags access to fishing
grounds within the FCZ. The Act came into effect in 1977 before UNCLOS, thus prohibited

77
16 U.S.C. 1826a-c
78
Pub. L. No. 111-348, 124 Stat. 3668 (2010).
79
Pub. L. No. 114-81, 129 Stat. 649 (2015).
80
Pub. L. No. 114-327, 130 Stat. 1974 (2016).
81
Magnuson-Stevens Act, supra note3, at 2 (§ 1801 (b)).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

foreign vessels from fishing within 200 miles FCZ off the U.S. coasts without prior authorization
from the U.S. government.

Section 1821(e) clearly confers power on “[t]he Secretary of State, in cooperation with
the Secretary [of Commerce, to] make allocations to foreign nations from the total allowable
level of foreign fishing [TALFF] which is permitted with respect to each fishery subject to the
exclusive fishery management authority of the United States.”82 By this, the Department of State
(DOS) has a decisive voice in the allocation of catches to a GIFA signatory, taking into account
the conditions of political relations, the satisfactory degree of cooperation in research, as well as
past record of fishing pattern, whether such foreign nation is listed on the IUU vessel list.

The United States implemented a new management scheme through regional councils
established under the Magnuson-Stevens Act to deal with conservation and management of
fishery resources. A look at one of the established regional councils, the North Pacific Fishery
Management Council (NPFMC),83 revealed establishment of these councils have indeed been
effective in fishery management and conservation, as it fosters cooperation necessary to achieve
that goal of the Act. Inherent in the decision system of the NPFMC is a two-tier structure of
national and sub-national levels of participation by agencies. At the national level, under
supervision of Congress, the participants include the Secretary of Commerce, through the NFMS
and the NOAA, the Secretary of State (foreign allocation), the Secretary of the Treasury, and the
Secretary of Transportation (U.S. Coast Guard for Enforcement of Regulation). The sub-national
participants include the NPFMC (with its seat in Anchorage, Alaska), the Northwest and Alaska
Fisheries Center (with its headquarters in Seattle, Washington), the NMFS, Alaska Department
of Fish and Game, Alaska Board of Fisheries, Washington Department of Fisheries, and Oregon
Department of Fish and Wildlife.

In addition to the national and sub-national official levels of management

implementation, there is interplay of competing, if not conflicting, private sectors, namely,
domestic fishermen, domestic processors, domestic fast food chains, foreign fishermen, and

82
Id. at 16.
83
Id. at 60 (§ 1852 (G)).

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

foreign processors. The transition is envisaged from foreign to joint ventures and hence to final
domestication of the fishing industry from research to techniques in harvesting, processing,
distribution, and marketing. Each time a State adopts national legislation to give effect to
international obligations; there is risk of inconsistencies and conflicts in the interpretations or
applications by States and government agencies competent in the fields. Therefore, States should
exercise maximum caution to minimize, if not altogether to avoid, the risk of conflicts and
inconsistencies in national understandings and implementations of treaty provisions.

3. Conclusion

A number of developments have shaped fishery conservation and management both at the
national and international levels and some of these have been reviewed in this paper. Together
these developments have created an economic, political and legal environment within which
coastal States articulation of the negative impact of failing to take steps to preserve the marine
ecosystem, and the consequence thereof could lead to extinction of species.

The Magnuson-Stevens Act provides a commendable framework for fisheries

management in the United States. Its content reflects an in-depth examination of the current state
of the fisheries resources and a widespread consultation process in its formulation. As stated in
its purpose, the Act draws on the relevant tools provided by the various international
conventions, some of which U.S. is a party and others which the U.S. is not a party, notably
UNCLOS and other related non-binding instruments such the FAO Code of Conduct to address
the issues militating against the achievement of sustainable fisheries management goals in United
States. That aside, it also seems to incorporate much of the traditional systems of fisheries
management, an indication of a participatory approach to solution that have been found so far
and hopefully a higher involvement of stakeholders across the board.

In fact, IUU fishing has become one of the single biggest threats to the sustainable
management of high seas and coastal state fisheries. Its persistence has prompt global reactions
in the form of the IPOA-IUU. Regionally, RFMOs such at the CCAMLR and the NPFMC are
actively pursuing strategies to curb the growth of IUU fishing. Coastal state authorities are

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INTERNATIONAL AND DOMESTIC FISHERY MANAGEMENT

facing similar pressures to take effective action against illegal fishing and are even more
hamstrung by the limitations in international law as identified in Part 11. The significant
limitations in the applications of Articles 73 and 111 of UNCLOS are noticeable. However, any
amendment of this provisions which further increases coastal state authority at the expense of the
freedom of high seas fishing states is likely to be interpreted as evidence of creeping coastal state
jurisdiction rather than a legitimate attempt to close legal loopholes being taken advantage of by
IUU fishers.

26