I. Introduction
The Southeast Pacific ocean is the breeding ground for several highly migratory fish, such as the Inca scad and Swordfish. This activity takes place anywhere from 80-250 nautical miles from the coastline. These fish are a main source of income for nationals of the coastal states of the Southeast Pacific, but due to their highly migratory nature are also sought by other flag state fishermen as well. Under the current setup of the Exclusive Economic Zone (EEZ), countries can only enforce fisheries laws on internationally flagged vessels up to two hundred nautical miles, which has led to overfishing and difficulty in enforcing overfishing. This continues to be a problem today as states like Chile, which is a major player in the Southeast Pacific as it has the longest coastline in the region, try to extend the EEZ. Further issues are complicated when politicians do not take into account the advice of scientists when managing fishing quotas for fishing sustainability. As this is a current issue today with respect to the overfishing, effective legislation is necessary for the security of fisheries stocks in the ocean.
The Fish Stocks Agreement (FSA) of 1995 was passed to conserve and manage straddling and migratory fish stocks, with the intended goal of stronger enforcement by both flag and coastal states in regulating fisheries. While this agreement, which entered into force in 2001, may seem to address the issue for the Southeast Pacific states, none of these states have signed the agreement. The states believe that the FSA heavily favors flag state fishing vessels, vessels fishing beyond the EEZ. The states point to issues regarding Articles 4, 7, and 8 which will be discussed in detail later.
Further, is the belief that the overfishing is generated by Southeast Pacific states inability to regulate flag state vessels, who are believed to be overfishing and causing depletion amongst the fishery stocks in the region. While, as previously mentioned there may be a deeper issue of overfishing within such countries as Chile, there is a firm belief in overfishing amongst flag state vessels. This belief prompted the European Committee v. Chile tribunal decision, where Chile tried to take effective measures against the perceived overfishing of flag state vessels on the high seas. Finally, the Southeast Pacific states have taken actions through their own to mitigate overfishing through the Port State Agreement and the Galapagos Agreement to try and mitigate overfishing, and more recently Chile adopted a 200,000 square mile sanctuary around Easter Island to help combat overfishing.
II. Southeast Pacific States and their issue with the Fish Stocks Agreement
1. Articles 21/22
Article 4 of the FSA simply states that the Fish Stocks Agreement shall not supersede the Convention, referring to the Law of the Sea Convention (LOSC). In the FSA 2006 Review Conference, this was an issue for Southeast Pacific states not signing the FSA because these states, along with other South American states, wanted the FSA to amend the LOSC as opposed to supplementing it. While it was not directly addressed in the 2010 Review Conference, it would appear that this still becomes a concern with relation to Articles 21 and 22 which delegate more power to Regional and Subregional Fishing Management Organizations (RFMO).
Article 21 gives any member state of a RFMO the ability to board a high seas vessel to inspect the vessel and its catch for any fishing violations beyond the EEZ. Article 22 coincides with Article 21 because it defines the procedures for which the member state is to board a fishing vessel on the high seas. The issue that occurs with this specific region is that there still does not exist a RFMO for the Southeast Pacific. The legislation for the region is the Framework Agreement for the Conservation of the Living Marine Resources of the High Seas of the South Pacific, or in short the Galapagos Agreement. This Agreement has yet to enter into force, and only Chile and Ecuador, two of the four coastal states have ratified it. As a result, this poses a major problem to the coastal states of the Southeast Pacific for without an agreement on a ratified RFMO, there would be little point to joining the FSA if they could not enforce or board flag state vessels fishing on the high seas.
One of the reasons possible for the lack of ratification by all coastal states is the stringent requirements among existing RFMOs. Most other RFMOs state the need for its members to ensure compatibility among fish stocks for flag vessels beyond the EEZ and those within its borders. The Galapagos Agreement conversely provides that fishing restrictions “shall not be less strict†and “not undermine the effectiveness†than those within the member states’ borders. Another impact of Article 21 and 22, with respect to Southeast Pacific Nations is the lack of capacity and resources. While not explicitly identified which countries were concerned with the inability to monitor high seas fishing of straddling stocks, this was identified as a primary issue amongst Central and South American states. Chile, for example, has the largest coastline of the Southeast Pacific states, extending almost 4,000 miles. This does not take into account the the EEZ that extends beyond this coastline. Therefore, it would be very difficult to imagine that Chile, almost regardless of its budget, would have the resources to monitor and enforce that large of an area. Finally, in the Lima Agreement of May 2010, of which the Southeast Pacific states were parties to, addresses the need to consider alternative means of surveillance and monitoring of vessels, most likely addressing the issue that the coastal states of the Southeast Pacific are not able to fully enforce their region by the means already provided in Article 21 and 22.
The Southeast Pacific states need to coordinate in an effort to ratify the Galapagos Agreement. Currently, these countries cannot enforce fishing control measures under the FSA without some form of RFMO established. One of the issues for the lack of ratification from Colombia and Peru is the strict standards and role placed on the members of the agreement. In addition to the previously discussed clear roles for the coastal states of the region, the article also requires that control measures are the same as those within each coastal states’ jurisdiction. This appears to mean that coastal states would have to impose the same restrictions on its nationals within the EEZ that it would to flag state vessels on the high seas. While mere speculation, it is possible that Colombia and Peru may not want to place the same restrictions on its nationals as it would flag state vessels on the high seas. Another possible reason for the lack of ratification is possibly similar to that described as an issue to the FSA for alternative means for surveillance and monitoring. Article 5 of the Galapagos Agreement imposes several requirements on members. The article requires members to prevent incidental captures, excess fishing, and to account for phenomena that may play a role in affecting the ecosystem. If resources for enforcing measures with respect to Article 21 and 22 are an issue that the Southeast Pacific states are requesting alternative means of enforcement, this extra burden of the Galapagos region may as well be an issue for the coastal states who have yet to ratify the agreement. If the additional constraints and burdens placed on coastal states by the Galapagos Agreement are the reason that the remaining states have yet to ratify the agreement, it may benefit all parties to negotiate a less burdensome RFMO in an effort to ratify the FSA and begin enforcement of the straddling and migratory stocks on the high seas. This may be impractical as the last Review Conference for the FSA, Chile appeared to remain a staunch supporter of the Galapagos Agreement. However, Chile would have to compromise with its fellow coastal states if it truly remains concerned with the straddling stocks and enforcing control measures.
2. Article 7
Article 7 deals with conservation and management measures relating to straddling and migratory fish stocks, and is another major concern of the Southeast Pacific states. This is a concern because under Article 4 of the FSA, the rules are only to supplement and not replace the rules under the LOSC. Under Article 7(2), participating states have a duty to coordinate with each other, and that duty is to take into consideration the limits provided by the coastal states, but nothing under the Article appears to be a requirement. Article 116 of the LOSC allows nationals of all states to engage in fishing on the high seas, so long as the states have coordinated with organizational treaties and Articles 63-67 of the LOSC. In the Lima Declaration, the request is that Article 7 be interpreted consistently with the LOSC Articles 4 and 116. Further, appears to be the concern that the provisions and interpretations of Article 7 may allow flag states fishing on the high seas to exceed the measures set by the coastal states. This can be seen by the fact that Article 7 does not specifically require flag states to follow conservation efforts set by the coastal states but only a duty to coordinate with them.
Duty is not compelling or forcing states to work with each other and does not bear as much weight as shall or must would, therefore it appears to imply or suggest flag states coordinate with coastal states. Further, the only shalls regarding actions to be taken by the flag state in the Article come under paragraphs 2 where the flag state shall take into consideration measures, try to reach an agreement with the coastal state under paragraph 3, and under paragraph 8 where the flag state shall inform the coastal state of the measures they are taking with respect to the straddling or migratory stocks. It is suggested that these coastal states feel Article 7 gives flag states more rights than the LOSC intended. On review of Article 116, 63(2), and 64-67 of the LOSC, it appears that the FSA does not favor coastal or flag state vessels any more or less than the LOSC. Under Article 63, the requirement for flag states is to agree upon measures for conserving fish stocks. In Article 64 of the LOSC, dealing with migratory stocks, only requires the parties to cooperate. Articles 65 to 67 deal with marine mammals, anadromous stocks, and catadromous stocks, which are not at issue in the Southeast Pacific.
There is nothing in Articles 63, 64, or 116 requiring flag states to follow coastal state restrictions, but only require cooperation. The only thing that Article 7 appears to offer which the LOSC does not is more specification on what parameters should be considered when determining conservation and management measures. Since Article 7 appears to offer no more preference to flag state vessels in terms of fishing for migratory stocks than the LOSC, of which all Southeast Pacific states have ratified, it appears that there should be no issue with these states with regard to Article 7.
3. Article 23
The issue the Southeast Pacific states have with Article 23 appears to be that the article does not give port states full sovereignty when dealing with flag state vessels that voluntarily enter its ports. It is suggested that this Article does not provide the Port state the same provisions that the LOSC provides Under Article 218, which deals with Port State Enforcement. Primarily, the focus is on the inability of Port or coastal states to “impose monetary or other penalties†on the flag state vessel. However, on further examination of Article 218, it appears to address only those violations with respect to marine and environmental hazards related to vessel discharge. While the article does give coastal states jurisdiction for violations a flag state may have committed that can cause hazard within a coastal state’s EEZ, this appears only related to pollution and any interpretation otherwise would appear to exceed the breadth of the article. So it is more than likely that this is not the case for the Southeast Pacific states objecting to LOSC Article 116 as the prior author suggests.
One reason may be the result of the EC v. Chile case. In the early 1990s, Chile enacted laws that prevented Flag State fishermen that exceeded Chile’s prevention quotas from entering Chile’s ports. This caused several Flag State ships, mostly European, to lose their catch as they were unable to enter port before their catch spoiled. The European Committee took the issue to the World Trade Organization, citing the General Agreements on Tariffs and Trade Article V that deals with the inability to restrict the freedom of trade and Article XI stating that no prohibitions other than those listed, which do not include quotas shall be instituted on a contracting party. The issue was taken before an ITLOS tribunal to decide whether Chile’s laws of limiting port access exceeded their scope as a port state and whether the European Flag state fishing actions were depleting the fish in the area. Unfortunately, neither the International Tribunal for the Law of the Seas nor the WTO tribunal decide on the issue as Chile and the EC settled the disagreement. This is unfortunate because neither the FSA nor the LOSC was interpreted as to whether coastal states have full sovereign rights with respect to controlling their conservation measures by using the control of the ports as an effective measure under these legislations.
In addition to the FSA in controlling migratory fishery stocks is the Port State Measures Agreement. This agreement is still not in force, as it needs twenty-five members to ratify, access, approve or accept it, and as of December 9th, 2015, only seventeen members had done so. Peru and Chile are the only members of this agreement from the Southeast Pacific. The significance of this agreement is that it would further clarify a coastal state’s ability to institute its sovereignty under Article 4 of the act. Article 4(1)(b) explicitly states that nothing shall be construed to affect the coastal states ability to deny entry into its port. The ratification and enforcement of this Agreement would most likely address the unsolved issue of port sovereignty in the EC v. Chile case. Since the Southeast Pacific states are concerned with the ability to have sovereignty over its ports and the ability to enforce its conservation measures through this tactic, this Article would serve to provide the solution to the concerns of these states in the Lima Agreement. Additionally, as the Port State Measures Agreement is more recent than the FSA, it would supersede the FSA, for the Port State Measures Agreement would take precedence when it enters into force.
However, since the Port States Agreement is not yet in force, the FSA would still be controlling legislation and the question as to whether the Agreement gives port or coastal states sovereignty still remains to be an unanswered question. The best scenario would appear to be for the FSA to clarify the role of a port state under Article 23. Southeast Pacific states, or at least Chile seem determined to have full sovereignty over their ports with respect to denying flag states entry if they exceed fishing measures. This is demonstrated by Chile’s actions in the Review Conference, its support of the Galapagos Agreement, and its support for the Port State Measures Agreement all which heavily favor port state sovereignty and the proceedings of EC v. Chile. While it may not be the best for the FSA to favor Port state sovereignty, doing so may lead to losing interest in a need for the Port State Measures Agreement. One thing that appears clear is that if the FSA does not give port states sovereignty over their ports, Chile and possible other Southeast Pacific states will not ratify the FSA.
III. Conclusion
With the increased issue over the depletion of migratory fish stocks in the Southeast Pacific sea, several legal actions need to take place in order to appropriately conserve the stocks and its environment. The lack of an RFMO in the Southeast Pacific remains a problem as the nations cannot effectively participate in enforcement of overfishing of these stocks by flag vessels on the high seas without an effective RFMO under the FSA. Southeast Pacific nations will have to make certain provisions and compromises to establish this effort and should do so if conserving these stocks are their priority. The Southeast Pacific states should also accept Article 7, as there appears to be no more preference given to flag state vessels under the FSA as what is given to them under the LOSC. And finally to maintain effective and current legislation in the Southeast Pacific region with regard to migratory stocks, the FSA should further clarify the port state role under Article 23 of the Agreement. Clarification will lead to either new legislation or hopefully, Southeast Pacific states ratifying the FSA. Without these actions, it is unlikely that current legislation and enforcement will have a positive action on conserving these fish stocks.