Helga Law Journal - 01.01.2021, Side 84

Helga Law Journal Vol. 1, 2021
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Helga Guðmundsdóttir
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within and beyond EEZs have a duty to cooperate to this end. The article
enumerates several factors which States shall take into account when determining
the compatible measures which shall govern the management in both areas,
including, for example, the extent to which the stock occurs in each jurisdiction,
the dependence of the coastal States and high seas fishing States on the stocks, and
ensuring that measures do not result in harmful impact on the living marine
resources as a whole.
The parties that are currently the main disputants in the mackerel dispute are
all bound by the 1995 Fish Stocks Agreement. Seeing as the North East Atlantic
mackerel is both a straddling and transboundary stock, the relevant articles are
applicable to the measures of the parties to the dispute within their respective
EEZs, including their determination of the TAC.
3 The Mackerel Dispute
Act 2: The tragedy begins to unfold and the audience is briefly introduced to the role of each
protagonist in playing out the classic tragedy of the commons. Ultimately each of them – for the
age old reason of self-interests – seeks to further their own gains at the expense of other protagonists
and the common good.
The North East Atlantic mackerel is a pelagic fish stock found in the North East
Atlantic Ocean.29 The mackerel is a migratory stock which travels vast distances
in search of food.30
The stock’s distribution has changed in recent years with the stock reaching
further north and west in the North East Atlantic Ocean.31 The International
Council for the Exploration of the Sea (“ICES”) – which has gained a great deal
of authority and trust in its advisory role on sustainable fisheries and whose advice
undoubtedly falls under what the law of the sea framework considers to be the
“best scientific advice” available in article 61 – investigated the changes in the
distribution in 2013.32 Its report traced the cause of the changes to several factors,

29 ‘Report of the Advisory Committee on Mackerel in the Northeast Atlantic’ (2013) ICES CM
2013/ACOM:58, at 1; Jean Weissenberger, ‘North-East Atlantic Fish Stock Dispute: The Mackerel and
Herring Conflicts’ (2013), European Parliamentary Research Service 130686REV1 (2013) 2.
30 ‘Mackerel Fishing Dispute Questions & Answers’ (2009) Report of the Working Group on Mackerel
Fisheries Established by the Minister of Fisheries and Agriculture 4; J. N. Keay, ‘Handling and
Processing Mackerel’ (1973), Torry Advisory Note 66.
31 Hafrannsóknastofnun, Environmental Conditions in Icelandic Waters 2009 (Reykjavík 2010) 25.
32 ICES is an intergovernmental organization established with the objective of enhancing the
sustainability of the oceans. This objective is achieved through the gathering of scientific information
and knowledge of the oceans and its living resources through a collaboration of over nearly 6000
scientists. On the basis of the information gathered, including on estimates of a fish stock’s population,
maturing rate and the extent to which it can be exploited without endangering the stock, ICES provides
advice to the competent authorities and relevant decision makers on how to enhance sustainability of
the ocean’s living resources. ‘Who Are We’, (ICES) <www.ices.dk> accessed 23 October 2021; Bjørnar
Dahl Hotvedt, ‘The Problem of Sharing a Common Stock: An Analysis of the Mackerel Conflict in the
North East Atlantic’ (2010) Masters Dissertation, Norwegian College of Fishery Science 8.
Atlantic Fisheries Commission, has been established to provide a forum for the
cooperation in the management of straddling stocks. Its regulatory reach is,
however, limited to the areas outside the coastal State’s national jurisdiction. There
are, furthermore, no provisions in the Convention stipulating the objective of the
attempts of cooperation apart from their being aimed at conserving and
developing a shared fish stock. The reference to development refers, inter alia, to
promoting a more effective management of heavily exploited stocks.25 Moreover,
and crucially, the Convention does not elaborate on how quotas for fishing a
shared fish stock shall be allocated between the harvesting States.26 In the mackerel
dispute, it is indeed this aspect that has been the main cause for the impasse in the
negotiations and the resulting failure for several consecutive years to reach an
agreement acceptable to all parties on the conservation and management of the
stock.
2.2 The 1995 Fish Stocks Agreement
At the United Nations Conference on Environment and Development
(‘UNCED’), held in Rio de Janeiro in June 1992, the need for a more detailed
framework for the management of straddling stocks was discussed. Following
UNCED, and upon its recommendation, the United Nations General Assembly
convened a conference in 1993 to seek better cooperation in the exploitation of
such stocks. The conference adopted the 1995 Fish Stocks Agreement which was
drafted to improve the implementation of article 63 of the Convention in order to
‘ensure the long-term conservation and sustainable use of straddling fish stocks’.27
The Agreement for instance details the tasks of regional fisheries management
organizations (‘RFMOs’) and how they should be established, and furthermore
calls for the strengthening of existing RFMOs. According to article 3, the scope of
application of the 1995 Fish Stocks Agreement remains for the most part limited
to the high seas. However, articles 6 and 7 as well as the general principles
enumerated in article 5 are also applicable within coastal States’ EEZs.28 To briefly
summarize the scope of these articles, articles 5 and 6 stipulate that parties must
apply the precautionary approach, signifying that they must have a more cautious
approach to the conservation, management and exploitation of a straddling stock
when information is uncertain or when the fisheries are new or exploratory. Article
7 introduces the principle of compatibility, under which it is recognized that
conservation and management of a straddling stock in its entirety requires the
measures established for the high seas and those which are established in a coastal
State’s EEZ to be compatible. Article 7 provides further that parties fishing a stock

25 Munro, Van Houtte and Willmann (n 24).
26 Ibid
27 1995 Fish Stocks Agreement, article 2; Churchill and Lowe (n 16) 162; Moritaka Hayashi, ‘The
Management of Transboundary Fish Stocks under the LOS Convention’ (1993), 8 International Journal
of Marine and Coastal Law 245, 246.
28 1995 Fish Stocks Agreement, article 3(1)-(2).