Introduction

It is increasingly evident that significant adjustments to existing marine capture fisheries will be necessary in order to meet the future demand for seafood from an ever-expanding global population. Concerns have long been raised that many commercial fisheries have consistently operated at or beyond their maximum sustainable yield, imperilling their long-term ecological and economic sustainability. Indeed, the United Nations Food and Agriculture Organization (fao) considers that, even accounting for regional variations and fluctuations, over thirty percent of global fish stocks are at present overfished, and approximately sixty percent are deemed to be fully fished.¹ With states having generally proven unwilling to countenance sweeping reductions to allocations, there is accordingly a pressing need to consider other options, including the extension of current effort into different locations and depths, deploying novel or adapted fishing techniques and gear, and targeting new or previously under-fished species.

In parallel to these considerations, climate change and associated processes are also poised to play a key role in the (re-)distribution of fish stocks in the coming decades and, by extension, the location and composition of future capture fisheries. Rising sea temperatures and ocean acidification will continue to exert a strong influence over the future distribution patterns of fish and inter-dependent species, with many commercially valuable stocks now ‘undergoing phenological and geographical shifts as a result of warming’.² Current projections indicate a general trend towards the eventual displacement of numerous fish species to deeper ocean waters and the Polar Regions,³ with a corresponding reduction in catch potential in the Tropics.⁴ Indeed, warm-water species have increasingly dominated global catches in recent years,⁵ which has been primarily attributed to a tangible shift in ocean temperatures.⁶ Similar patterns of adjustment are also becoming apparent on a regional basis. In Europe, for instance, warming seas have seemingly provoked distributional shifts in a number of pelagic fish species endemic to the region,⁷ while irregular temperature ‘spikes’ have created conditions conducive to the greater availability of particular stocks in individual fishing seasons.⁸ The dispersal of stocks to new depths and locations accordingly presents inviting commercial possibilities for particular coastal states, albeit at the likely expense of others. Indeed, recent evidence suggests that warm-water species have now become present in British and Irish waters in sufficient quantities to generate new and lucrative fishing opportunities for species such as sea bass, red mullet, John Dory, anchovy and squid.⁹ Future prospects for new commercial fisheries have also been tentatively raised in the High North, as warming seas are predicted to gradually facilitate the removal of natural climatic barriers to the colonisation of Arctic waters by a number of species across the coming decades.¹⁰

The pursuit of prospective fishing opportunities nevertheless presents considerable attendant management challenges. Emerging fisheries are acutely susceptible to the risks of over-exploitation, where the combination of an effective regulatory vacuum and the prospect of high short-term profits has served to facilitate a bleakly familiar cycle of ‘boom-and-bust’. Moreover, new fisheries are often pursued in locations for which there is limited scientific knowledge of the stock and its surrounding ecosystem; hence there is significant uncertainty as to the impacts of fishing upon both the target species and the wider marine environment. The regulation of new and exploratory fisheries accordingly represents an intriguing and challenging context by which to consider the practical application of the precautionary approach to international fisheries management.

Despite these increasingly pressing concerns, the legal requirements incumbent in the initiation of new fishing opportunities have thus far received surprisingly little analysis. As outlined below, where ‘new or exploratory fisheries’ are under contemplation, Article 6(6) of the 1995 un Fish Stocks Agreement (unfsa)¹¹ prescribes a broad obligation to adopt cautious conservation and management measures at a preliminary stage, which are to remain in effect until sufficient data are available to permit a clear assessment of the impact of fishing upon the long-term sustainability of the target stock and the wider ecosystem. Thereafter, if feasible and appropriate, further conservation and management measures may be implemented, with a view towards the gradual development of the fishery.

Although these requirements have been framed in the specific context of straddling and highly migratory fish stocks, similar policies and commitments have been adopted by a growing number of regulatory bodies in recent years. While little explored, such provisions collectively represent a key element of the precautionary approach to fisheries management and envisage markedly stronger controls over new and exploratory activities than are applied to existing capture fisheries, given the general lack of baseline data concerning the sensitivity of the target stock and its associated ecosystem to the impacts of future fishing.

A degree of mystery surrounds the scope and application of these requirements, however. Interpretive questions arise as to the definitional parameters of both ‘new’ and ‘exploratory’ fisheries and the precautionary management regime required throughout these preliminary stages of a nascent fishery. The threshold requirements incumbent in the transition of new and exploratory fisheries to full management are also obscure and, to date, the practice of states and regional fisheries management organisations (rfmos) in implementing these commitments has been subject to minimal investigation. This article accordingly evaluates the range of legal obligations engaged by the pursuit of new and exploratory fisheries and collates the developing international practice concerning the regulation of such activities.

To this end, this article first considers the regulatory challenges raised by new and exploratory fisheries and provides an overview of the current international legal framework addressing such activities. Thereafter, as this article outlines, the regulation of new and exploratory fisheries can be seen to have emerged in two distinct contexts. In the first instance, the need to address the supervisory lacunae raised by the unregulated development of new fishing activities was first recognised by the Commission for the Conservation of Antarctic Marine Living Resources (ccamlr). The nascent policies elaborated under these auspices influenced the concurrent negotiation of the unfsa, resulting in the incorporation of specific requirements for new and exploratory fisheries within the general framework for the precautionary approach to fisheries management. In turn, the unfsa has directly influenced the mandates of subsequent rfmos so as to facilitate the regulation of new and exploratory fisheries as a standard feature of the practice of the more recently inaugurated fisheries bodies. A degree of ‘retro-fitting’ of similar requirements has also been considered within pre-existing institutions, as new and exploratory fisheries have steadily emerged in other regions. This analysis of the law and practice pertaining to new and exploratory fisheries will demonstrate that a clear framework has been established for the further interpretation of Article 6(6) of the unfsa to manage such activities in a precautionary and environmentally sensitive manner, although practical difficulties have been encountered in securing sufficient data and in facilitating an appropriate transition point to full commercial management.

The second – and more recently evident – factor underpinning the oversight of new and exploratory fisheries has been an increased international focus upon ensuring responsible fisheries in the marine ecosystem, as mandated by the un General Assembly (unga) in a series of influential Resolutions adopted since 2004. Particular concerns have been raised by the unga over the impacts of under-regulated deep-sea bottom-fishing upon the benthic environment, with rfmos having been primarily charged with implementing standards to protect vulnerable marine ecosystems (vmes) from the adverse consequences of an emerging trend towards fishing in deeper waters. In this respect, exploratory bottom fishing has been subject to an increased volume of regulation by rfmos in this specific context, based on these political imperatives and drawing upon the technical advice of the fao. This has generated a strong degree of uniformity in these requirements within a relatively short time-frame, which may be accordingly considered to represent the minimum standards for exploratory fishing activities in the deep-sea environment and a key component of the current global regime for the protection of vmes.

The Objective and Conduct of New and Exploratory Fisheries

The requirements of new and exploratory fishing activities have generally occupied a peripheral position within the otherwise extensive legal framework for the regulation of fisheries. There is as yet no universal definition of either a ‘new’ or an ‘exploratory’ fishery in current international law: indeed, these terms were left undefined in the unfsa while, as discussed below, individual rfmos have adopted subtly different approaches to address the particular conditions and circumstances through which new and exploratory fisheries are conducted under their regulatory purviews. Likewise, in some circumstances these specific activities have become steadily blurred with other types of non-commercial fishing, rendering the distinction between exploratory and research fisheries increasingly fluid. Accordingly, the policies towards new and exploratory fisheries by various actors and institutions have largely developed in a piecemeal and ad hoc fashion.

The nature of fishing activities in particular regions also means that the oversight of new and exploratory fisheries as a general concern is far from an equal regulatory priority for all rfmos, further compounding a sense of managerial fragmentation. There are isolated examples of extensive practice towards new and exploratory fisheries in particular regions, notably the Southern Ocean. For many other actors, such policies remain at a preliminary stage, as the regulation of these activities has become a more recent concern, prompted largely by global initiatives towards the concerted protection of vmes, as discussed further below. Meanwhile, other rfmos have not substantively considered this issue at all. These regulatory conditions have thereby militated somewhat against the emergence of a clear and consistent definition of, and cross-cutting rules for, the further oversight of new and exploratory fisheries on a global basis. Nevertheless, as this article reveals, regional innovations – notably within Antarctic fisheries – can be seen to have pioneered a series of guiding principles by which to regulate new and exploratory fisheries. The coalescence of these policies, initially developed to bring procedural order to specific emerging fishing opportunities, has in the absence of clearer global rules, generated regional practices that retain a strong emphasis on precautionary management, prior approval, extensive data collection and ongoing scientific review.

New and exploratory fishing activities are primarily exemplified in three broad contexts. In the first instance, fisheries may be tentatively introduced in respect of species that have not previously been fished on a commercial basis. Second, new fishing areas may be piloted under the auspices of extant regulatory structures for species that may already be subject to exploitation. Third, new methods may be developed to catch species within an existing fishery, such as the use of new techniques or equipment, or by adjusting catch effort at a point higher or lower in the water column. Each of these scenarios will inevitably involve a strong degree of uncertainty over the prospective impacts of even a limited degree of fishing activity. The regulatory challenge incumbent in new and exploratory fisheries is therefore to ensure that these activities shall not compromise the stock in question, or its associated ecosystem, before meaningful and prudent regulation can be applied to it. Indeed, such a fate has befallen previously unfished stocks with alarming regularity, and considerable anxiety has already been voiced over the environmental vulnerability of prospective fisheries generated by changing ocean dynamics.¹²

New and exploratory fisheries remain fundamentally distinct to established fisheries. They are primarily characterised by a lack of scientific data concerning stock levels and the surrounding ecosystem, which militates against the application of commercial catch limits. Such fishing is instead subject to a (pre-)cautious approach to regulation, advancing considerably more stringent controls on access and effort than are generally imposed under more established management conditions, which may be gradually relaxed as additional data are subsequently generated. The effective regulation of new and exploratory fisheries therefore places considerable importance upon the collection of particular data, because such activities are often pursued in locations for which there is little scope to acquire fisheries-independent information on the target stock and its accompanying environment. The endorsement of a pilot fishing programme accordingly represents a calculated regulatory gamble that a restricted degree of supervised fishing will yield sufficient data to allow for increasingly accurate projections of the commercial feasibility of that fishery, as well as its prospective impact upon the wider marine ecosystem, while inflicting minimal environmental damage in the process. Indeed, the regulatory conundrum posed by new and exploratory fisheries was succinctly articulated by the fao at the negotiating sessions for the unfsa:

It is usually impossible to forecast, with any degree of accuracy, the impact that a new fishery will have before it starts and some data are collected. It might therefore be imagined that no fishery could be developed because evidence of the absence of adverse impact cannot be given by those involved in the venture. A precautionary approach, in such a case, should lead to agreement for a pilot fishery large enough to collect data and build up the scientific evidence required, but small enough to ensure that no irreversible effect is likely. In practice, there will usually be a trade-off: a small amount of risk for the resources being exploited will have to be accepted in exchange for the possibility to provide food and a livelihood for humans.¹³

It is difficult to accurately quantify the scale of new and exploratory fisheries on a global basis. By its very nature, such fishing is highly variable and the exploitation of intended pilot fisheries may in practice be influenced as much by commercial, meteorological and environmental factors as by regulatory considerations in any given fishing season. At present, new and exploratory fisheries are most prevalent in the Southern Ocean, where such endeavours have been regulated under the umbrella of ccamlr for over twenty-five years. New and exploratory fisheries have consistently expanded in these waters since 2000, with similar arrangements tentatively developing within other regions in recent years. An increasing degree of exploratory deep-sea fishing has also been conducted in other locations, particularly the North Atlantic, for which a distinct regulatory regime has begun to emerge, guided primarily by the political spur provided by adherence to pertinent unga Resolutions.

Despite the logistical, practical and financial challenges incumbent in such activities, the development of new and exploratory fisheries has steadily become an issue of increasing regulatory significance for a number of rfmos. Indeed, new and exploratory fisheries may represent the only potential fishing opportunities available in principle to purported new entrants to particular regional bodies, as has for instance been clearly stated in the context of the North Atlantic region.¹⁴ It is therefore likely that new and exploratory fisheries will continue to expand in the future as existing constituents strive to maximise yields from these allocations, while new participants seek to secure access to stocks in a climate of increasing protectionism within current regulatory structures.¹⁵

The Global Regulation of New and Exploratory Fisheries

The first formal recognition of the need to regulate new and exploratory fisheries on a multilateral basis can be traced back to 1989, under the auspices of ccamlr.¹⁶ These emerging policies within ccamlr exerted a clear influence over the elaboration of a specific provision addressing new and exploratory fisheries within the unfsa, which was negotiated at a broadly similar time. Moreover, the unfsa has in turn inspired a varying degree of recognition of new and exploratory fisheries within the constituent treaties of subsequent rfmos. Beyond the unfsa, however, there are few references to new and exploratory fisheries at the global level, although these activities have received further attention during the past decade within the unga, which has sought to mitigate the impacts of deep-sea fishing – including exploratory activities – upon vmes.

The regulation of new fishing opportunities was not expressly addressed at the Third United Nations Conference on the Law of the Sea (unclos iii) negotiations, from which the un Convention on the Law of the Sea 1982 (losc)¹⁷ and its general framework for fisheries competences would ultimately emerge. Under the losc, states enjoy extensive rights to utilise fisheries resources on the high seas¹⁸ and in their respective exclusive economic zones (eezs),¹⁹ subject to broad obligations concerning the conservation of the stocks in question.²⁰ Although the losc is silent on new and exploratory fisheries per se, it is nonetheless implicit in these arrangements that fishing, whether industrial or research-oriented, should not be conducted in a manner that compromises the rights of other states or the health of the target stock and its wider ecosystem. To this end, Article 61 requires coastal states to take into account the interdependence of stocks and prospective impacts upon associated or dependent species in framing arrangements for fishing in the eez. Moreover, the significant data-collection obligations incumbent in new and exploratory fisheries complement the requirements of Article 61(2) for a coastal state to take into account ‘the best scientific evidence available to it’ to ensure that marine living resources are not endangered by over-exploitation. Parallel arrangements for the high seas are more circumspect, with states under the more nebulous obligation to exercise ‘due regard’ towards the interests of others.²¹

These provisions are neither expressly nor implicitly restricted to pre-existing fishing activities, however. They have been drafted in an inclusive manner, with the intention of promoting informed decision-making founded upon access to all pertinent data; hence there would appear to be little practical merit in a narrow interpretation that would exempt new and exploratory fisheries from these requirements. Indeed, the governance regime envisaged by the losc is expressly founded upon securing the maximum sustainable yield of fish resources, for which the pursuit of new and exploratory fisheries legitimately represents an important stage in meeting this objective. Accordingly, it is tenable to assert that the impacts of pilot fishing activities ought to be considered within the broad ambit of these requirements.

Thus far, however, there has been little consideration of the application of these provisions in the specific context of future fishing opportunities. The unilateral initiation of experimental fishing activities was challenged in the Southern Bluefin Tuna Cases,²² in which high seas entitlements were invoked to curtail catches that were potentially unsustainable and allegedly represented a circumvention of national catch restrictions.²³ Although not an exact template of the usual pursuit of new and exploratory fishing opportunities, the International Tribunal for the Law of the Sea (itlos) indicated that obligations to act ‘with prudence and caution’ and to cooperate effectively with other participants in the fishery constitute key considerations for the pursuit of experimental fishing programmes.²⁴ This position also appears implicit within the losc, which prescribes further obligations to exchange data on catch and fishing effort in respect of both the eez²⁵ and the high seas.²⁶ Ultimately, as the rfmo practices outlined below attest, data-sharing and prior notification have become the general hallmarks of current regulatory mechanisms concerned with new and exploratory fisheries, and are thus broadly reflective of the spirit of the losc regime.

The general framework for fisheries governance advanced under the losc has been further developed through the unfsa, which has expressly adopted a regulatory position on new and exploratory fisheries. To this end, Article 6(6) provides:

For new and exploratory fisheries, States shall adopt as soon as possible cautious conservation and management measures, including, inter alia, catch limits and effort limits. Such measures shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks, whereupon conservation and management measures based on that assessment shall be implemented. The latter measures shall, if appropriate, allow for the gradual development of the fisheries.

Article 6(6) is therefore of clear significance in consolidating regulatory responses to the particular challenges posed by new and exploratory fisheries. Indeed, it represents the first formal recognition of new and exploratory fisheries within an instrument of global application,²⁷ thereby elevating this issue beyond a matter of specific regional concern. Moreover, as intended, the unfsa has exerted considerable influence over the drafting of the constituent treaties of subsequent rfmos, a number of which (as outlined below) have accordingly enshrined the oversight of new and exploratory fisheries within their regulatory purviews, a development that might not have otherwise occurred as readily as has subsequently transpired.

Equally notable is the positioning of these requirements within Article 6 of the unfsa, a provision that articulates the intended application of the precautionary approach to fisheries management and was considered revolutionary at the time.²⁸ In this manner, the unfsa reinforces a dichotomy that making provision for the regulation of new and exploratory fisheries constitutes a core component of the application of the precautionary approach to fisheries management, and that such activities should in turn proceed in a graduated, monitored and precautionary manner.

This symbolism notwithstanding, taken on its own terms Article 6(6) has arguably been of limited practical utility in framing specific regulatory responses to new and exploratory fisheries. Ratione materiae, these requirements are confined to the particular context of straddling and highly migratory fish stocks. Likewise, despite the stated expansion of the scope of Articles 6 and 7 to encompass ‘areas under national jurisdiction’,²⁹ later practices and analyses have cast doubt as to whether this term is as clear-cut as it initially appears and suggest that it may be restricted solely to fisheries within the eez.³⁰ Moreover, beyond a broad commitment to precautionary oversight and ensuring that the commercialisation of a new or exploratory fishery proceeds on a gradual basis, the unfsa offers little indication as to the definitional thresholds of these terms or how this process is intended to operate in practice. This is perhaps unsurprising, given that Article 6(6) is essentially reflective of contemporaneous developments within ccamlr, which had not fully elaborated its regulatory model for new and exploratory fisheries by the time at which the unfsa was concluded. Instead, the maturation of policies towards new and exploratory fisheries occurred exclusively within ccamlr during the period between the drafting of the unfsa and its formal entry into force in 2001, a process over which Article 6(6) ultimately exercised a negligible influence.

The guiding role of ccamlr in the elaboration of Article 6(6) is clearly illustrated by the submission of a draft convention prior to the conclusion of the initial negotiating text,³¹ which appears to have been the only procedural model for new and exploratory fisheries to have been tabled at the Fish Stocks Conference, and whose proponents were, with the exception of Iceland, ccamlr Members at the material time and actively engaged in the process of developing regulatory guidance for pilot fisheries. With regard to ‘newly discovered’ stocks, it was suggested that in order to provide for effective scientific review and assessment and to avoid delays in establishing effective control over such fisheries, the coastal states ‘in whose exclusive economic zone the stock occurs’ ought to assume management authority for an undefined ‘initial interim period’, following which responsibility would be vested in the relevant rfmo (or by agreement in the absence of such a body). Thereafter, measures should be established to allow for the gradual development of the fishery, alongside the introduction of precautionary management thresholds and by-catch limits.³² Nevertheless, beyond a broad obligation for states to enter into consultations with respect to new fisheries,³³ no specific procedures were stipulated within the unfsa and the formulation of these requirements appears to have been essentially deferred to the individual rfmo in question.

Likewise, a us proposal for new and exploratory fisheries to be conducted pursuant to a specific data collection programme – which mirrored its voluntary practices within ccamlr at the material time³⁴ – also failed to graduate into the final version of the unfsa,³⁵ although in practice those rfmos that have developed a clear policy on such fishing have subsequently insisted upon adherence to this procedure. Ultimately, given this drafting history, the regulatory intent of Article 6(6) is more appropriately interpreted by collating the extensive guiding practice of ccamlr towards new and exploratory fisheries, a task to which this article now turns.

New and Exploratory Fisheries in Antarctic Waters: The Development of the ccamlr Regime

The ccamlr regime is a central element of the Antarctic Treaty System (ats), under which the Convention for the Conservation of Antarctic Marine Living Resources³⁶ was concluded in 1980 and entered into force in 1982. The camlr Convention provided for the establishment of a management body, in the form of ccamlr,³⁷ which is supported by a Scientific Committee and its associated advisory fora, which act as consultative bodies to the Commission.³⁸ The primary aim of the camlr Convention is articulated in Article ii as being ‘the conservation of Antarctic marine living resources’,³⁹ defined as ‘the populations of fin fish, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence’.⁴⁰ Article ii(3) prescribes a series of conservation principles for these resources, whereby parties undertake to ensure that the levels of harvested populations do not fall below that which would prevent stable recruitment, to maintain ecological relationships between harvested, dependent and related populations and to prevent or minimise the risk of changes in the marine ecosystem that may not be reversible over two to three decades. The approach of ccamlr to new and exploratory fisheries is accordingly framed within the context of these overarching objectives.

Fishing activities in the camlr Convention Area are undertaken predominantly for Antarctic (Dissostichus mawsoni) and Patagonian toothfish (Dissostichus eleginoides) and krill (Euphausia superba), alongside smaller operations for other crustaceans and squid. As outlined below, new and exploratory fisheries have been established to at least some degree for all such species under the auspices of ccamlr, particularly in respect of toothfish.

Emerging Regimes for New and Exploratory Fishing

Beyond the auspices of ccamlr, specific regulatory powers over new and exploratory fishing have been conferred upon a growing number of rfmos, notably those instituted following the adoption of the unfsa. Thus far, however, these mandates have been generally exercised in a limited manner. As a notable exception, sprfmo has established a comprehensive framework for new and exploratory fisheries based largely upon the model pioneered by ccamlr, with which it shares a regulatory boundary, a number of mutual parties and, prospectively, a series of overlapping fish stocks. Originating from trilateral negotiations in 2006 between Australia, Chile and New Zealand to address fisheries resources in the South Pacific region, the sprfmo Convention was concluded in 2009 and entered into force in August 2012. Despite having only been in effect for a relatively brief period of time, sprfmo has swiftly emerged as one of the more far-sighted fisheries bodies presently in operation. Indeed, at a preliminary stage in the negotiations it was determined that sprfmo would transcend the basic principles of the unfsa, which was seen as a useful regulatory template but representative only of minimum requirements for fisheries management.¹⁴⁶ The resulting formulation of the sprfmo Convention has been duly lauded as having ‘raised the legal standard for international fisheries management’ for, inter alia, new and exploratory fisheries.¹⁴⁷

Reflecting this proactive regulatory philosophy, the sprfmo Convention has advanced the most extensive framework for new and exploratory fisheries of the current post-unfsa rfmos. To this end, Article 22(1) provides that:

[a] fishery that has not been subject to fishing or has not been subject to fishing with a particular gear type or technique for ten years or more shall be opened as a fishery or opened to fishing with such gear type or technique only when the Commission has adopted cautious preliminary conservation and management measures in respect of that fishery, and, as appropriate, non-target and associated or dependent species, and appropriate measures to protect the marine ecosystem in which that fishery occurs from adverse impacts of fishing activities.

Echoing key components of the ccamlr approach, the sprfmo Convention further considers that appropriate conservation and management measures (cmms) will include prior notification, observer coverage, the submission of a development plan, data-collection requirements and mitigation measures to prevent adverse impacts upon marine ecosystems,¹⁴⁸ and also facilitating the adoption of specific cmms to advance the precautionary regulation of new and exploratory fisheries. In keeping with the broad conditions of Article 6(6) of the unfsa, such measures

shall ensure that the new fishing resource is developed on a precautionary and gradual basis until sufficient information is acquired to enable the Commission to adopt appropriately detailed conservation and management measures.¹⁴⁹

Despite the comprehensive formulation of Article 22, the sprfmo Convention nonetheless retains some scope for future interpretive difficulties, not least concerning the notion of a ‘fishery’. Although the sprfmo Convention advances extensive definitions of ‘fisheries resources’, ‘fishing’ and ‘fishing vessels’,¹⁵⁰ the preceding negotiations revealed conflicting perspectives on the legal status of previously unfished stocks. Indeed, whereas some delegations sought to expressly integrate such resources within the regime of Article 22, others considered that a ‘target fishery’ would be established where some effort had been applied to a particular species anywhere within the sprfmo Area, irrespective of the absence of prior fishing activities within a specific location. This latter interpretation would appear to be out of kilter with the broad spirit of Article 6(6) of the unfsa – and prevailing ccamlr practice – yet in principle remains an open question, as the concept of a target fishery failed to graduate into the final wording of the Convention and the term ‘fishery’ accordingly remains undefined.¹⁵¹

These divergent negotiating positions notwithstanding, few interpretive complications have ultimately afflicted the limited sprfmo practice to date. Nevertheless, in 2015 the sprfmo Scientific Committee observed that, despite the general terms of Article 22, the ‘Convention and existing cmms and standards provided little guidance for the development and approval of exploratory fishing proposals’.¹⁵² These concerns, coupled with the first formal application to undertake exploratory fishing in the sprfmo Area, resulted in the adoption in 2016 of two distinct cmms to further advance the practical requirements for such activities.

To this end, cmm 4.13 (Exploratory Fisheries; 2016) expands and modifies the scope and application of Article 22, with such activities collectively considered ‘exploratory fisheries’.¹⁵³ As with the ccamlr regime, cmm 4.13 mandates the prior submission and approval of a Fisheries Operation Plan, from which the Scientific Committee will establish a Data Collection Plan outlining the research requirements incumbent on fishers. Unlike the ccamlr approach, however, sprfmo prospectively adopts a stronger stance against a failure to submit the requisite data, with Members and Cooperating Non-Contracting Parties to be prohibited from participating in future exploratory fishing until full information from previous activities has been provided to the Commission.¹⁵⁴ This reinforces the ethos that participation in exploratory fisheries remains a privilege rather than an entitlement in these waters: as noted above, cmm 4.13 adopts a similarly restrictive position to ccamlr in managing the expectations of ‘pioneer’ fishers, for which Article 21(1)(i) of the sprfmo Convention will be seemingly interpreted in a negative fashion to punish infractions by curtailing future fishing opportunities, rather than actively promoting the pursuit of additional fisheries.¹⁵⁵

Significantly, cmm 4.13 also elaborates conditions for the future transition of exploratory activities to established fisheries. In this regard, the Commission may approve an application to manage an exploratory fishery as an established fishery where it is satisfied that sufficient information is available to: evaluate the distribution, abundance and demography of the target species to inform an estimate of the fishery’s potential yield; review the impact of the exploratory fishery upon non-target, associated or dependant species and the accompanying ecosystem; and allow the Scientific Committee to formulate appropriate management arrangements.¹⁵⁶ In contrast to ccamlr’s enduring collection of ‘Data-Poor Exploratory Fisheries’, cmm 4.13 seemingly contemplates a ten-year limit on the operation of any sprfmo exploratory fishery, at which point the fishery will be either closed or reconstituted as an established fishery.¹⁵⁷ The controversy surrounding the intended commercialisation of ccamlr’s Ross Sea Exploratory Fishery nevertheless suggests that some additional flexibility may be required in interpreting these deadlines, unless sufficient quantities of pertinent data can be yielded in a relatively truncated timeframe. With cmm 4.13 due to be reviewed in 2019, it is unclear whether sprfmo will ultimately adopt the more permissive approach of ccamlr towards the lifespan of exploratory fisheries – an outcome that could in principle be facilitated under this provision¹⁵⁸ – or, indeed, whether a further ten-year period must elapse following closure in order for a fishery to be re-categorised as exploratory under Article 22(1) and for this regulatory cycle to commence anew.

Thus far, exploratory fishing within the sprfmo Area remains in its comparative infancy, and applicable policies have generally mirrored those of ccamlr in substance and scope. In 2015 New Zealand applied for a modest exploratory catch of toothfish, a species that had not been fished for over ten years in these waters, thus triggering the application of Article 22 for the first time. Given that no specific procedure had been elaborated for proposed exploratory fishing at the material time – and with longstanding experience of pursuing such activities in the Southern Ocean – the documentation submitted by New Zealand largely followed the ccamlr template, which was applauded by the sprfmo Scientific Committee as ‘a systematic and controlled approach to exploratory fishing’.¹⁵⁹ This de facto alignment with the documentary requirements of ccamlr offers significant practical benefits, given that the sprfmo exploratory fishery essentially represents an extension of current activities conducted by New Zealand in an adjacent sector of the camlr Convention Area. Moreover, an additional cmm governing these specific activities observed that, due to the likelihood of shared stocks between the two bodies, the conduct of exploratory toothfish fishing should follow pertinent ccamlr rules.¹⁶⁰

The first sprfmo exploratory fishery, opened in 2016, has therefore utilised standard ccamlr mitigation measures, observation policies and administrative processes, with this regulatory cross-pollination ‘meeting or exceeding sprfmo requirements’.¹⁶¹ Although a full evaluation of sprfmo practice remains somewhat premature – restricted thus far to one limited expedition, conducted by personnel well versed in the ccamlr requirements and yielding as yet unquantified but ‘[s]ignificant information’¹⁶² – there are at least promising indicators of future regulatory success, drawing upon the hard-learned best practices of ccamlr and advancing strong commitments to sharing data to ensure a clearer understanding of the cumulative impacts of exploratory fishing across neighbouring rfmos.¹⁶³

A limited degree of exploratory fishing for toothfish has also commenced under the auspices of seafo. Unlike sprfmo, the seafo Convention does not advance a specific provision on such activities, notwithstanding overarching commitments to apply the precautionary approach ‘widely’¹⁶⁴ and to take account of the principles of Article 6(6) of the unfsa in determining future participatory rights.¹⁶⁵ Exploratory fisheries were subsequently defined by the seafo Scientific Committee in 2014 as ‘fishing experiments solely or primarily aimed to discover new resources or new fishing grounds and are as such from the outset motivated by commercial interest’,¹⁶⁶ a comparatively idiosyncratic formulation motivated primarily by a desire to clarify the concept of ‘fisheries research’. This definition nonetheless presents scope for conflict with other more established constructions, especially as exploratory fishing under seafo is expressly distinguished from research fishing – whose main objective is to ‘create a firm basis for fisheries management advice’ – and is instead deemed ‘less rigorous… which may typically not have to fully satisfy scientific best practice standards’, with accompanying data-collection requirements ‘rather a required by-product than a primary objective of the exploratory fishing effort’.¹⁶⁷

This divergent approach sits uneasily alongside the neighbouring ccamlr and sprfmo regimes, which maintain a strong commitment towards targeted research objectives for exploratory fishing, as well as Article 6(6) of the unfsa, which clearly mandates the assiduous collection of sufficient ecosystem-driven data before the commercialisation of a fishery may be contemplated. Likewise, there is little indication as to when a fishery or resource may be considered to be ‘new’, or whether the use of alternative gear in established fisheries might also trigger these requirements. The current concept of exploratory fishing under seafo is accordingly likely to require future modification to more centrally recognise the primary purpose of such activities – i.e., to cautiously ascertain the environmental, rather than the economic, feasibility of prospective fishing – as reflected under the unfsa and current regional models of best practice.

Elsewhere, the regulation of new and exploratory fishing remains essentially prospective in nature. Among the other post-unfsa rfmos, regulatory powers over such activities have been conferred upon the Western and Central Pacific Fisheries Committee (wcpfc) – the constituent treaty of which reproduces Article 6(6) practically verbatim¹⁶⁸ but has not yet exercised this mandate – the North Pacific Fisheries Commission (npfc),¹⁶⁹ which entered into effect in mid-2015, and the Southern Indian Ocean Fisheries Agreement (siofa),¹⁷⁰ which became operational in 2012, with exploratory activities limited thus far to domestic permits granted to three Korean vessels for the 2012/13 fishing season.¹⁷¹

Meanwhile, an express mandate for the supervision of ‘experimental or exploratory fishing activities’ has been ‘retro-fitted’ into the nafo Convention, through a series of extensive textual revisions adopted in 2007 in order to promote an ecosystem approach to fisheries management, which eventually entered into effect on 18 May 2017.¹⁷² Notwithstanding the recent formalisation of these arrangements, nafo has exhibited a clear regulatory intent towards emerging fisheries for a considerable period of time, first recognising the need to ‘define and adopt precautionary strategies for the reopening of fisheries and for new and developing fisheries’¹⁷³ in 1999. Moreover, throughout this interim period, many of these obligations had been applied provisionally,¹⁷⁴ which has enabled nafo to adopt a series of measures to regulate exploratory fisheries in the specific context of the protection of vmes, as discussed further below.

Most recently, the multilateral regulation of new and exploratory fishing has been contemplated within the high seas portion of the central Arctic Ocean, an area currently devoid of commercial fishing but for which a substantial influx of valuable stocks has been projected in future decades.¹⁷⁵ Although considerable scepticism remains as to whether the Arctic region will ultimately be transformed into an area of significant fisheries activity even within the long-term future, there has been considerable political interest in pre-emptive regulation to ensure that any prospective fishing is undertaken in a precautionary and environmentally sensitive manner. In July 2015, the five central Arctic Ocean coastal states adopted a Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean,¹⁷⁶ recognising that although commercial fishing in these waters remains a distant and uncertain prospect, international obligations to cooperate in the conservation and management of marine living resources and to apply the precautionary approach necessitate the development of interim measures to deter unregulated fishing. To this end, the signatories pledged to ensure that ‘any non-commercial fishing in this area does not undermine the purpose of the interim measures, is based on scientific advice and is monitored, and that data obtained through any such fishing is shared’.

The concept of ‘non-commercial fishing’ is not elaborated further in the Oslo Declaration, but appears most realistically confined to future exploratory and research activities. Indeed, this approach is reflective of policies pursued in areas within the national jurisdiction of particular signatories: commercial fishing has been precluded in us Arctic waters since 2009, subject to an authorisation procedure requiring ‘a fishery development analysis to ensure the best available science is used to move a species from unfished status to full fishery development’,¹⁷⁷ as well as the Canadian portion of the Beaufort Sea since 2011, wherein a limited degree of exploratory fishing had previously occurred.¹⁷⁸ In both instances, the national authorities envisage a precautionary approach to assess the status of potential target stocks and the ecosystem implications of future fisheries, prior to the contemplation of any prospective commercial fishing in these waters.¹⁷⁹

Subsequent developments within the framework for a ‘stepwise’ approach as part of a ‘Broader Process’ towards the potential establishment of a new rfmo have involved extensive deliberations on the scope for ‘non-commercial’ fishing, with the initial signatories to the Oslo Declaration having been joined by China, Korea, Japan, Iceland and the eu in these negotiations. The European Parliament, for instance, has strongly advocated a precautionary approach to Arctic fisheries, repeatedly calling for a mechanism to generate reliable information concerning fish stocks and marine ecosystems prior to the contemplation of any expansion in fishing effort in a manner broadly analogous to the requirements of Article 6(6) of the unfsa.¹⁸⁰ Moreover, the Oslo Declaration expressly states that any eventual commercial fishing will be conducted ‘in accordance with recognised international standards’. Although this term is also undefined in the text, it may be considered to have particular significance in framing regulatory responses to new and exploratory fisheries that are likely to emerge within these waters in future years.¹⁸¹

Thus far, the models of best practice advanced under ccamlr, in tandem with the standards for exploratory bottom-fishing outlined below, would appear to be the most plausible manifestations of current ‘recognised international standards’. At the time of writing, full consensus on the oversight of exploratory fisheries in the central Arctic Ocean – which had initially proved elusive¹⁸² – had recently been achieved. To this end, the negotiating parties were broadly aligned in considering that such activities should only be conducted pursuant to relevant conservation and management measures adopted by the meetings of the parties of any subsequent management body, in a manner similar to the regulation of exploratory fisheries by other rfmos. Nevertheless, in keeping with the prevailing negotiating position that ‘nothing is agreed until everything is agreed’, the final details of this regime have yet to be formally approved. The participants in the ‘Broader Process’ are currently in the process of consolidating these points of consensus, with a view to articulating the final details of this regime in a text to be developed in future months.¹⁸³

Exploratory Deep-Sea Fishing and Vulnerable Marine Ecosystems on the High Seas

As considered above, a general regime governing new and exploratory fisheries has been established under the unfsa, a position inspired predominantly by the regulatory innovations of ccamlr, and has been subsequently applied within a growing number of rfmos. However, a second and more specific basis for the elaboration of overarching standards for such activities has emerged comparatively recently in the context of international efforts to protect the deep-sea environment from, inter alia, the poorly-controlled expansion of fishing effort. Since the mid-twentieth century, both commercial and exploratory fisheries have steadily progressed into offshore areas and deeper waters, as shallow-water stocks have become increasingly depleted and fishers have been accordingly forced to pursue alternative opportunities.¹⁸⁴ Consequently, the mean depth of global fisheries has expanded four-fold since the mid-1960s,¹⁸⁵ accompanied by a steady proliferation of demersal fishing into areas beyond national jurisdiction.

Deep-sea fisheries have traditionally presented considerable regulatory challenges. In order to survive at advanced depths, in an environment characterised by cold temperatures, little light and limited productivity, such fishes typically exhibit delayed sexual maturity, slow growth and a high maximum age. In marked contrast to species exploited at shallower depths, deep-water species are thereby acutely vulnerable to the impacts of fishing, since with few exceptions such stocks can become rapidly depleted with little scope to regenerate swiftly.¹⁸⁶ The risks of overfishing are compounded by a lack of baseline data concerning both deep-water stocks and their accompanying ecosystems, hence most deep-sea fisheries are considered unlikely to be either ecologically or economically sustainable in the long-term. Moreover, deep-sea fishing is considered to be especially destructive in comparison to other operations, given the predominant reliance upon the use of bottom-trawling, whereby heavily weighted nets are dragged across the seabed, presenting an amplified scope for benthic damage in the process.¹⁸⁷

Notwithstanding these concerns, until the present century the pursuit of new deep-sea fishing opportunities was, in practice, largely unregulated. Indeed, by the time at which the unfsa entered into force, there were significant portions of the global oceans – especially high seas areas – for which rfmos had yet to be established, hence there were few pre-existing governance structures through which deep-sea fisheries might be addressed. Moreover, within the network of regulatory coverage that did exist, only four such bodies¹⁸⁸ were endowed with an express mandate to address deep-sea stocks, with many rfmos having been established to address a single species, notably tuna or salmon. Compounding these regulatory lacunae, among the small collective of actors with an explicit remit to govern deep-sea stocks, it was legally questionable whether this competence extended beyond the management of the target stock to also include oversight of the wider ecosystem impacts of such fisheries. Indeed, as Molenaar observes, a strict interpretation of the existing mandates of these four bodies at the time would suggest that only ccamlr retained express powers to regulate both deep-sea species and the ecosystem impacts of fishing upon them.¹⁸⁹ Consequently, for most areas of the global oceans, deep-sea fisheries represented ‘one of the last unregulated open-access frontiers, governed only by the general provisions of the un Convention on the Law of the Sea’.¹⁹⁰

Since the turn of the present century, however, endeavours to mitigate the prospective impacts of deep-sea fisheries – including those of an exploratory character – upon benthic ecosystems have been pursued primarily through the unga. In this regard, the unga has provided a convenient platform for the development of further standards, thereby overcoming two prominent regulatory concerns at the material time, namely the apparent absence of an obvious and readily identifiable forum for the consideration of deep-sea fisheries on the high seas¹⁹¹ and strong divergences of opinion as to whether deep-sea fishing in areas beyond national jurisdiction should be more appropriately addressed through binding or non-binding means.¹⁹² Accordingly, the political impetus of the unga has facilitated the subsequent emergence of a clearer degree of normative order to these activities, notwithstanding enduring definitional inconsistency between institutions as to the threshold of depth at which deep-water fisheries are considered to operate.¹⁹³

In 2004, the unga first called upon states to act individually or through rfmos to consider the prohibition of destructive fishing practices, including bottom-fishing, pending the adoption of appropriate ‘conservation and management measures’.¹⁹⁴ A further and highly influential Resolution requested states to ‘identify vulnerable marine ecosystems and determine whether bottom fishing activities would cause significant adverse impacts to such ecosystems and the long-term sustainability of deep sea fish stocks, inter alia, by improving scientific research and data collection and sharing, and through new and exploratory fisheries’.¹⁹⁵ Subsequent Resolutions have reinforced the protection of vmes as a regulatory priority for rfmos,¹⁹⁶ which have been designated as the primary actors through which the operative paragraphs of Resolution 61/105 and subsequent instruments are to be implemented, alongside provision for the periodic review of progress under the auspices of the un Secretary-General.¹⁹⁷

In 2009, the fao adopted the International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, which were developed to assist rfmos in the implementation of the various commitments established under paragraphs 76–95 of unga Resolution 61/105, which included provision for new and exploratory bottom fisheries. The fao Deep-Sea Fisheries Guidelines established that deep-sea fisheries are to be ‘rigorously managed’ during the experimental, exploratory and established stages of their development.¹⁹⁸ Although the parameters of these stages were not expressly defined by the fao, a broadly analogous position to Article 6(6) of the unfsa has been advanced, with states encouraged to ensure that ‘conservation and management measures for [deep-sea fisheries] should ensure that, while knowledge is low, harvest rates are kept low enough to minimise risk to sustainability and harvests only increase as knowledge, management capacity and [monitoring, control and surveillance] increase’.¹⁹⁹ Accordingly, rfmos should elaborate appropriate mechanisms for reviewing assessments, determinations and management measures, including the receipt of advice from appropriate scientific bodies and the consideration of effective mitigation measures.²⁰⁰ Such procedures should also be supported by international observer programmes, for which

[h]igher levels of coverage are required, in particular for experimental and exploratory stages of a fishery’s development’, especially where such fishing takes place outside an rfmo, which should continue ‘until measures in place to manage these fisheries and prevent significant adverse impacts are evaluated and determined to be effective.²⁰¹

The Guidelines also considered an ‘appropriate set of rules and regulations’ to be a core element of a ‘functioning regulatory framework’ for the opening of such areas to exploratory fisheries, which should include regulations to protect vulnerable populations, communities and habitats.²⁰² Precautionary conservation and management measures, including catch and effort controls, were considered ‘essential’ during the exploratory phase of a deep-sea fishery and should include measures to manage the impact of the fishery on low-productivity species, non-target species and sensitive habitat features.²⁰³ To this end, the fao recommended the institution of precautionary effort limits, in the absence of reliable estimates of sustainable catches of both target and non-target species, supported by precautionary measures to prevent serial depletion of low productivity stocks. This approach was also to be supported by the regular review of stock status and a downwards revision of catch estimates if appropriate, alongside measures to prevent significant adverse impacts on vmes and the comprehensive monitoring of all fishing effort, catch statistics and interactions with vmes.

In a manner reminiscent of the further implementation of Article 6(6) of the unfsa, the position on vmes advanced under unga Resolution 61/105, in conjunction with the fao Deep-Sea Fisheries Guidelines, has strongly influenced the formulation of common regulatory standards for deep-sea fishing. As intended by the unga Resolutions, particular rfmos have subsequently developed clear policies and procedures to regulate exploratory fishing in the specific context of the deep-sea environment. In this regard, a broadly uniform framework for the management of prospective deep-sea exploratory fishing has been adopted by a growing array of rfmos, maintaining a clear emphasis on prior approval and the scientific review of intended exploratory activities, alongside targeted data-collection requirements and the graduated expansion of fishing effort in a restrained and precautionary manner.

This broad approach is clearly exemplified by the arrangements adopted by neafc, wherein the proactive management of deep-sea ecosystems dates back to 2004.²⁰⁴ In 2008, neafc adopted an Interim Exploratory Bottom Fishing Protocol for New Bottom Fishing Areas,²⁰⁵ Under these arrangements the Commission, in consultation with the International Council on Exploration of the Sea (ices), has mapped the parameters of bottom fishing undertaken within the neafc Regulatory Area to date, with such areas maintained in an Annex to the Recommendation which establishes a definitive, yet adjustable, list of existing fishing areas. Exploratory bottom fishing is thus defined as ‘all commercial bottom fishing activities outside area closures and existing bottom fishing areas, or if there are significant changes to the conduct and technology of bottom fishing activities within existing bottom fishing areas’.²⁰⁶

Any prospective expansion of bottom fishing beyond existing sites is addressed under Articles 6 and 7 of the neafc Bottom Fishing Recommendation, which places the onus on the proposing party to gather data to present to the Commission. Under Article 6, a Notice of Intent (NoI) must be submitted to the Commission at least 6 months prior to the purported fishing activities and, in a manner broadly similar to the ccamlr framework for new and exploratory fisheries, will include a harvesting plan, a mitigation plan and a ‘sufficient system’ to record data. NoIs are subject to prior review and approval by the parties and the Permanent Committee on Management and Science (pecmas), with preference to be given to ‘exploratory bottom fishing using fishing gear and methods with the least bottom contact, in well-mapped areas and at times when impacts are likely to have the least adverse impacts on organisms other than the target species’.²⁰⁷ The Commission is to review the reports and may decide to authorise bottom fishing in these areas as ‘existing bottom fishing areas’ based on the results of exploratory bottom fishing conducted in the previous two years.²⁰⁸

This process operates in conjunction with Article 7, under which the parties must submit a preliminary assessment of known and anticipated impacts of the proposed bottom fishing activities, to be conducted in the light of advice from ices or, if none is available, ‘to the best of the ability of the Contracting Party concerned’.²⁰⁹ pecmas undertakes an evaluation of the documentation ‘in accordance with the precautionary approach,’ taking account of risks of significant adverse impacts upon vmes before advising whether the proposal should be approved and whether particular mitigation measures should be adopted.

Given the considerable overlap in membership and the contemporaneous formulation of their respective policies, seafo has adopted a near-identical approach to that of neafc. In 2009, cm 17/09 on bottom-trawling was introduced as an interim conservation measure to address the demands of Resolution 61/105, which was subsequently revised and reformulated as cm 29/14 on bottom fishing activities and vmes in the seafo Convention Area. Under this provision, exploratory bottom fishing is defined in a similar manner to that of neafc as ‘all commercial bottom fishing activities outside area closures and existing bottom fishing areas, or fisheries within existing bottom fishing areas when a new fishing method and/or strategies are attempted to be used’.²¹⁰ As with neafc, a NoI is required with materially the same criteria and subject to prior scientific assessment, with a view towards identifying the current scale of bottom fishing in the Convention Area. This process was completed in 2011 and, in 2015, a first deep-sea exploratory fishery was initiated by Japan for Patagonian toothfish.²¹¹

A similar procedure is also envisaged in the context of the nafo, which has also collated this data to identify a series of Seamount, Coral and Sponge Protection Zones, within which bottom fishing is prohibited for particular periods of time.²¹² Nevertheless, some initial interpretive difficulties were experienced under the auspices of nafo, whereby an arbitrary allocation of 20% of closed seamounts remained open to exploratory fishing, contingent upon the fulfilment of these approval processes, until all bottom fishing in these areas was prohibited in 2012.²¹³ The nfpc has also adopted a similar approach, having established an Exploratory Fishery Protocol for these waters that requires the prior approval of separate plans for harvesting, mitigation, catch monitoring and data collection.²¹⁴

Meanwhile, ccamlr first expressly considered the problems raised by bottom trawling in 2006, at which point it was determined that any future proposals to conduct such activities in high seas locations of the camlr Convention Area would need to be notified in accordance with its procedure for new fisheries.²¹⁵ At this juncture, cms 21-01 and 21-02 were revised so that future notifications with bottom-trawl gear would be required to provide information concerning known and anticipated impacts on vmes, and specific cms have been adopted to restrict and regulate bottom fishing in the camlr Convention Area.²¹⁶ As with the position with ccamlr exploratory fisheries generally, bottom fishing requirements have been most successfully implemented in the Ross Sea, having led to the identification of a series of vmes in recent years.²¹⁷

sprfmo has also adopted a broadly similar set of policies, which expressly apply ‘in addition to the requirements in any other measures adopted under Article 22 of the Convention with respect to new and exploratory fisheries’.²¹⁸ Under cmm 4.03, participants are to establish their bottom fishing footprint (i.e., ‘a map of the spatial extent and distribution of historical bottom fishing in the Convention Area of all vessels flagged to a particular Member or cncp [Cooperating Non-Contracting Party] over the period 1 January 2002 to 31 December 2006’)²¹⁹ and restrict fishing activities to these parameters. In 2012 a Bottom Fishery Impact Assessment Standard (bfias) was introduced, under which participants are required to prepare a new bottom fishery impact assessment if a substantial change in the fishery has occurred, which would render it likely that the risk or impacts of the fishery may have also changed.²²⁰ The bfias mandates a description of the proposed fishing activities, a full impact assessment, information on the stocks to be fished and adherence to the fao Deep-Sea Fisheries Guidelines. This procedure has already engendered a promising degree of good practice, with the extensive assessments conducted by New Zealand and Australia pledging particular attention to the risk of gear loss, additional training for observers and fishers and the development of an industry-wide code of practice.²²¹

Buttressing these general policies – and reflective of its proactive regulatory ethos – sprfmo has adopted a more expansive interpretation of bottom fishing, which also incorporates mid-water trawling on seamounts, given the propensity for some degree of contact with seabed features even at this comparatively more elevated depth.²²² This position thereby potentially catches a wider array of fishing activities within the rules governing exploratory fishing. To date, this approach remains a striking exception to more general rfmo practice, although similar policies were considered by nafo in 2015, which failed to find consensus on the issue but instead imposed particular restrictions on the design and deployment of mid-water trawl gear.²²³

The policies adopted by a range of rfmos to date are eminently suggestive of an emerging trend towards the regulation of deep-sea fishing, with particular reference to exploratory endeavours. This position is reinforced by the express designation by the unga of rfmos²²⁴ as the conduit through which deep-sea fishing in areas beyond national jurisdiction is to be regulated, in conjunction with the technical guidance developed for these particular fisheries by the fao in order to implement the operative paragraphs of Resolution 61/105 and subsequent instruments. Although the unga does not regularly impose a political imperative towards a course of regulatory action for specific fishing activities, the isolated examples of previous measures indicate that such Resolutions have nevertheless proved to be a compelling stimulus to rfmos and other actors.²²⁵

In the present context, particular commitments towards deep-sea fishing may be identified, with rfmos and their participants charged with definitively mapping the extent of existing fishing activities, with any proposed expansion deemed to be exploratory in nature. Although the extension of a fishing footprint is not inherently precluded, it is subject to prior consent based on precautionary scientific review and, as with the ccamlr approach to new and exploratory fisheries, clear requirements as to the collection of specified further data. Although exploratory bottom fishing remains comparatively limited – both in terms of its physical scope and its emphasis on potential impacts upon particular benthic features – this approach provides for the concerted acquisition of baseline data to better evaluate appropriate fishing locations in a manner somewhat reminiscent of more traditional forms of environmental assessment.²²⁶ This marked uniformity in approach indicates that a number of rfmos have applied this broad template in order to implement the commitments articulated within the relevant unga instruments, for which these requirements may thereby be considered to be representative of a recognised set of minimum standards for deep-sea exploratory fishing in areas beyond national jurisdiction.

Conclusions

The international regulation of fisheries has long been predicated upon essentially static fishing grounds and their continued ability to provide sufficient yields in the face of rising demand and increased participation. However, current projections indicate profound impending changes to the distribution of many commercially and nutritionally significant stocks and, in turn, the future location and composition of catches. The prospective displacement of fish and fishing effort towards new stocks, locations, depths and techniques poses substantial governance challenges. Previously un(der)-fished stocks and their accompanying ecosystems are acutely vulnerable to anthropogenic excesses. All too often, new fisheries have been pursued with a cavalier disregard for scientific uncertainty, duly inflicting significant damage upon target stocks and the wider marine environment before meaningful and considered regulation can be applied. Despite this rather chequered history, new fisheries conversely provide an inviting opportunity – frequently absent from more established enterprises – to secure a culture of proactive and ecologically sensitive management ab initio. The regulation of new and exploratory fisheries thereby represents an intriguing test-case for the application of the precautionary approach to international fisheries management.

New and exploratory fisheries are subject to a hitherto unheralded and unexplored regulatory framework, which can be seen to have developed in two distinct regulatory contexts. Having initially emerged as an issue of niche concern within the Southern Ocean, far-sighted regulatory developments within ccamlr influenced the contemporaneous elaboration of the unfsa. The resulting provision, Article 6(6), establishes that new and exploratory fisheries should be subject to cautious conservation and management measures, which are to remain in place pending the acquisition of sufficient data to ascertain the prospective environmental impacts of continued fishing, so as to facilitate well-informed management decisions concerning the further development of a particular fishery. Although Article 6(6) remains somewhat ambiguous, its symbolic importance should not be underestimated, having prompted the regulation of new and exploratory fisheries to be included to at least some degree within the mandates of all post-unfsa rfmos, some of which – notably sprfmo – have subsequently developed comprehensive standards for such activities in a relatively truncated timeframe.

Latterly, a similar degree of global influence has been forthcoming in respect of policies to address the protection of vmes from deep-sea fisheries on the high seas, as expressly mandated by the unga, with a growing number of rfmos having since established targeted procedures for exploratory fishing at advanced depths in areas beyond national jurisdiction. The explicit designation by the unga of rfmos as the regulatory actors through which such commitments are intended to be addressed, and the subsequent striking uniformity in the implementation of these commitments, are also compellingly suggestive of the formation of recognised international standards for the pursuit of these specific fishing activities.

These developments notwithstanding, the maturation of policies towards new and exploratory fisheries has thus far only occurred under the auspices of ccamlr. The development of a proactive management framework for new and exploratory fisheries within the Southern Ocean has been rightly lauded as a significant regulatory achievement, for which ccamlr has established a series of procedures to ensure that such fishing is subject to prior approval based on the capacity and previous conduct of the operator, and remains within clearly prescribed limits, with entitlements contingent upon the assiduous collection of pertinent data. In principle, these requirements represent a notable practical application of the precautionary approach, allowing for fisheries to be developed in an informed, controlled and responsible manner, with scope for adjustments in catch limits, gear usage, data-collection requirements and fishing areas if necessary. This regulatory template has already been successfully exported into neighbouring sprfmo and would represent an effective model for consideration by other bodies, including any resultant rfmo for the central Arctic Ocean – within which exploratory fishing may be considered likely to commence in future years – that may arise from the current ‘Broader Process’.

However, if the regulatory arrangements for new and exploratory fisheries under ccmalr are effective in design, complications have been experienced in their implementation. There has been a steady blurring of the requirements and ethos for new and exploratory fisheries with other forms of research fishing, which may generate future interpretive difficulties within and beyond ccamlr. More significantly, although compliance with ccamlr measures has been generally high, difficulties have arisen in securing sufficient data from these activities. This has resulted in an uneven knowledge base between the ccamlr exploratory fisheries, yielding a high concentration of data from particular endeavours, whereas lesser information has been consistently returned from others. Combined with an operational bias towards collecting data that is commercially valuable, a number of ccamlr exploratory fisheries have thus operated as de facto commercial fisheries. This position arguably fails to meet the central precautionary objective of these activities. Indeed, as particular ccamlr Members have themselves warned, ‘exploratory fisheries are just that, exploratory, and should not be assumed to be precautionary if they continue for many years without satisfactory research’.²²⁷

Ultimately, new and exploratory fisheries represent a distinct conceptual challenge to the precautionary approach itself: such activities primarily occur in dynamic marine ecosystems and under hostile research conditions, thus full scientific certainty is unlikely ever to be attained – yet the legal framework envisages a transition to commercial management upon the receipt of an agreed volume of requested information. Critics of the ccamlr approach to new and exploratory fisheries have argued that the present arrangements have neither demonstrated sufficient adaptability nor fully addressed reasonable scientific uncertainties. Conversely, there is strong endorsement within influential advisory quarters that the requirements of cm 21-02 have been met for particular initiatives. If ccamlr’s Ross Sea Exploratory Fishery is a reliable barometer of regulatory intent, exploratory fisheries in commercial transition are likely to be subject to additional and ongoing research requirements absent from fully managed fisheries. This approach may accordingly represent the most pragmatic solution to the uneasy compromise inherent in the pursuit of new fisheries resources in the face of enduring uncertainty.