Helga Law Journal - 01.01.2021, Blaðsíða 78

Helga Law Journal Vol. 1, 2021
80
Helga Guðmundsdóttir
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of shared fish stocks can be found in the 1995 Fish Stocks Agreement.6 Other
instruments and internationally recommended standards, albeit not binding, also
concern the management of shared stocks.7
Guided by the law of the sea regime and the principles in the aforementioned
instruments, States have often been able to successfully cooperate in the
sustainable management of shared stocks. However, with changing migration
patterns of fish stocks as a result of climate change and emerging disputes over
transboundary stocks as a consequence, it has been argued that the current
fisheries regime is inadequate to address this reality.8 This is not least a result of
the fact that parties which have historically fished a particular stock may be
particularly reluctant to admit new entrants to their fishery negotiations, regardless
of whether the fish stock has changed its migration pattern and entered the fishery
jurisdiction of additional States. Understandably, this can create friction as the
previous fishing parties may be heavily invested in the fisheries of the particular
stock, whereas the new entrants want to exercise their sovereign rights to
participate in the fisheries within their respective jurisdiction. In my opinion,
however, the current law of the sea regime has effective tools that can address this
(somewhat new) reality.
Although it is true that the management of transboundary stocks has received
little special attention in the law of the sea regime and the writings of scholars,9 it
must not be ignored that the general rights and obligations of a coastal State under
the law of the sea are applicable to such stocks. In so far as a transboundary stock
is also straddling, the special provisions in the 1995 Fish Stocks Agreement also
apply to that stock as a whole.10 These rights and obligations furthermore do not
exist without constraint, and the drafters of the Convention devised a dispute
settlement regime to which almost all disputes concerning these rights and
obligations could be subjected. Indeed, this dispute settlement framework of the
Convention was unprecedented, as one commentator (who just so happens to be
this author’s father) put it: ‘The Convention is unique among the major law-
making treaties in establishing, as an integral part of its provisions, a
comprehensive system for the settlement of disputes [...]. That such a result was

6 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law
of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December
2001), 2167 UNTS 3 (‘1995 Fish Stocks Agreement’).
7 This includes the precautionary approach, which is addressed in the 1995 Fish Stocks Agreement, and
is also found in the FAO Code of Conduct for Responsible Fisheries and in the 1992 Rio Declaration
on Environment and Development. These non-binding principles are to be taken into account by the
coastal State in the management and conservation of fish stocks in accordance with the Convention,
article 61(3).
8 See e.g. ‘Climate change has fish moving faster than regulations can keep up’ (n 2).
9 See, however, Gudmundur Eiriksson, ‘The Case of Disagreement Between a Coastal State and the
Commission on the Limits of the Continental Shelf' in Myron H. Nordquist, John Norton Moore, and
Tomas Heidar (eds), Legal and Scientific Aspects of Continental Shelf Limit (Martinus Nijhoff 2004).
10 See 1995 Fish Stocks Agreement, article 3.
future fisheries disputes. I further suggest that by resorting to compulsory
conciliation the parties to the mackerel dispute could bring this measure to the
fore and not only resolve their own dispute, but also lead the way for future
fisheries dispute resolution.
In part 2 below, I will lay out the legal framework on the management of
shared fish stocks, in particular the obligation to conserve such stocks. Part 3
describes the emergence of the dispute between the parties and the ways in which
they are arguably failing to comply with the legal framework. Part 4 proposes
compulsory conciliation as an available and important tool to resolve any fisheries
dispute. By resorting to compulsory conciliation, I propose in my conclusions in
Part 5 that parties locked in fisheries disputes can potentially change the course of
their story from a classic tragedy of the commons to something with a happier
ending.
2 Management of Shared Fish Stocks
Act 1: Curtain opens to reveal the ideal framework of the management of shared stocks. The
audience is introduced to this framework, which was agreed to by almost all States of the world
in hopes of ensuring sustainable fisheries for the common good. Act 1 sets the stage for how our
protagonists – the disputing parties – should be acting absent their short-term individual interests
clouding their decisions.
Although there is no uniform categorization of fish stocks, the term ‘shared
stock’ has been understood by the Food and Agriculture Organization of the
United Nations (‘FAO’) to include, inter alia, a stock which crosses the boundaries
of the EEZs of two or more coastal States (i.e., a transboundary stock) and a stock
which straddles the EEZ of a coastal State and the high seas (i.e., a straddling
stock). In many instances a stock may fall under both of these categories; as is the
case with the mackerel stock in the North East Atlantic.4
The law of the sea regime has several provisions concerning the conservation
and management of fish stocks, in particular in Part V of the 1982 United Nations
Convention on the Law of the Sea (‘the Convention’)5 concerning the EEZ. In
light of the majority of the world’s fish stocks being shared, the law of the sea
regime recognizes that such stocks cannot be effectively managed without all
parties involved in the fisheries cooperating to that effect. The Convention
accordingly incorporates certain provisions aimed at achieving cooperation to
ensure effective conservation and management of such stocks. Additionally, a
basic legal framework that specifically concerns the conservation and management

4 ‘Shared Fish Stocks: An Overview’ (FAO) <www.fao.org/docrep/007/y5438e/y5438e05.htm>
accessed 23 October 2021.
5 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force
16 November 1994), 1833-1835 UNTS 3.