What is meant by governance here? Governance can be taken as the inter-institutional and organizational relations in administration. More generally it may be taken as the means by which an activity or group of related activities are controlled or directed, such that they deliver an acceptable range of outcomes according to some agreed standard. Within a sovereign context this is very close to what is described as ‘public administration’. In the context of the fisheries of the Southern Indian Ocean many assert that management of high seas fisheries is first subject to relevant international law within which specific management regulations are possible.
In this context, high seas fisheries are first the object of the United Nations Convention on the Law of the Sea that was signed in 1982 after nearly eleven years of negotiation and which came into force in 1994 with the sixtieth ratificiation.
The merits and complications of the Convention of the Law of the Sea are the basis of countless academic careers and are beyond our scope here. Further, most parts of the Convention do not concern us directly, e.g. articles dealing with the territorial sea, international passageways, the continental shelf, etc. However, Part VII deals with the high seas and contains several paragraphs of specific relevance.
Article 87: Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: specifically subsection (e) freedom of fishing, subject to the conditions laid down in section 2.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
Article 91: Nationality of ships
1. Every State 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. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
Article 94: Duties of the flag State
1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
2. In particular every State shall:
(a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and
(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.
3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments;
(c) the use of signals, the maintenance of communications and the prevention of collisions.
4. Such measures shall include those necessary to ensure:
(a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship;
(b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship;
(c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.
5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally ccepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.
6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.
7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.
Section 2 deals with the “ Conservation and Management of the Living Resources of the High Seas.
Article 116: Right to fish on the high seas
All States have the right for their nationals to engage in fishing on the high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and
(c) the provisions of this section.
Article 117: Duty of States to adopt with respect to their nationals measures for the conservation of the living resources of the high seas
All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.
Article 118: Cooperation of States in the conservation and management of living resources
States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end.
Article 119: Conservation of the living resources of the high seas
1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall:
(a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;
(b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned.
3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.
It is the Articles 116 – 119 that deal with conservation of fishery resources that provide the bugabear. On the one hand, the Convention appears to argue for complete freedom to all of access to fishery resources on the high seas. On the other, this freedom is constrained by Articles 117 and 118 that require states to cooperate with others in conservation of marine resources and therein lies the rub.
Many states felt that the LOSC should be considered a ‘Framework’ convention, in the sense of a framework as “a set of assumptions, concepts, values, and practices that constitutes a way of viewing reality.” And, because of its manifest weaknesses, negotiated an implementation agreement in the form of the 1995 “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. Once conferees had returned home, the reality struck that the agreement did not cover fish stocks that existed solely on the high seas, as, apparently, is the case for the stocks targeted by SIODFA operators.
However, the ‘Fish Stocks Agreement’ refers frequently to “subregional or regional fisheries management organizations or arrangements,” that take “into account the specific characteristics of the subregion or region, to ensure effective conservation and management” of straddling stocks. Indeed, not only the Fish Stocks Agreement, but many other international desiderata note the importance, if not the primacy, of regional fishery management organizations (RFMO) in management of the resources of the areas for which they have ‘competence’.
A common criticism is that some areas of the highs seas are not covered by areas through which the conservation of the fisheries resources can be undertaken, other than through the general provisions of the LOSC. Indeed, the Southern Indian Ocean is one such area. Until 1999 this area was subject to a FAO agreement, The Indian Ocean Fisheries Commission. However, to better address the much more important issues of tuna management, this Commission has abolished to allow the creation of the Indian Ocean Tuna Commission, perversely, just as the high-seas deep-sea fisheries ‘exploded’. Lamentably, the FAO barely responded to this emerging management problem with the result that even the opportunity to collect data on the rapidly expanding fishery was for gone, much less efforts to manage it, though given the in-practice weakness of the LOSC to function in actual situations, there may have been little loss.
The FAO did start negotiations on the creation of a high seas fisheries agreement using two highly experienced negotiators to develop a draft text – an exhausting process requiring many rounds of discussions. The FAO held two ad hoc technical meetings in preparation of the Intergovernmental Consultation process leading to the establishment of a new regional fisheries body, the first in Mauritius in January 2000 the second in Madagascar in July. Consequently, an Intergovernmental Consultation on the establishment of a South West Indian Ocean Fisheries Commission was held in La Reunion in February 2001. A second Consultation was held in Madagascar the following September that revised the draft Agreement. Following this a signing agreement was held at the FAO Headquarters in July 2007 which lead to the signing of the Agreement by Australia, Comoros, the Cook Islands, the European Community, France, Kenya, Madagascar, Mauritius, Mozambique and New Zealand. Subsequently the Seychelles, Cook Islands, European Union and Mauritius ratified the agreement, but because the Cook Islands participated in the signing agreement as an observer, the fourth ratification was finally achieved when Australia ratified the Agreement on 8 March 2012. Entry into force of the Agreement is 21 June 2012. The text of the Agreement is given in “SIODFA – Agreement text”.
The importance of a relevant regional fisheries management organization has been reflected in resolutions of the United Nations General Assembly, e.g. their resolution 61/105 notes in Article 66, “Encourages relevant coastal States and States fishing on the high seas for a straddling fish stock or a highly migratory fish stock, where there is no subregional or regional fisheries management organization or arrangement to establish conservation and management measures for such stocks, to cooperate to establish such an organization or enter into another appropriate arrangement to ensure the conservation and management of such stocks, and to participate in the work of the organization or arrangement”.
The vessels owned by members of SIODFA operate under licences issued by their flag states – the Cook Islands, Japan, and the Commonwealth of Australia. As such SIODFA vessels must satisfy the licensing requirements of each country for high seas fishing.