The extensive pressures upon current commercial fisheries, compounded by the projected impacts of climate change and associated processes on marine ecosystems, will increasingly displace elements of future fishing effort towards new locations, target species and techniques. For transboundary stocks, where a new or exploratory fishery is contemplated, Article 6(6) of the
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 (
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
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 (
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 (
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
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
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
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
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
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
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
The regulation of new fishing opportunities was not expressly addressed at the Third United Nations Conference on the Law of the Sea (
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
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 (
The general framework for fisheries governance advanced under the
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
Equally notable is the positioning of these requirements within Article 6 of the
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
The guiding role of
New and Exploratory Fisheries in Antarctic Waters: The Development of the
Fishing activities in the
‘New’ and ‘Exploratory’ Fishing under
Concerns have long been expressed that fishing activities in the Southern Ocean ‘often started without adequate information being available to evaluate the fishery potential or the possible adverse impacts on the target, dependent or related populations’.41 Accordingly, on 9 October 1989, in its capacity as Convenor of the Working Group for the Development of Approaches to Conservation of Antarctic Marine Living Resources (
Accompanying these suggestions, it was advocated that new or developing fisheries – as such endeavours were then termed in the
A Conservation Measure (
a fishery on a species using a particular fishing method in a statistical subarea or division for which:
- information on distribution, abundance, demography, potential yield and stock identity from comprehensive research/surveys or exploratory fishing have not been submitted to
- catch and effort data have never been submitted to
- catch and effort data from the two most recent seasons in which fishing occurred have not been submitted to
Under this construction, any notification of a fishery targeting a previously unfished species, new fishing ground or new fishing technique will in principle constitute a new fishery. Additionally, and in keeping with the entrenched regulatory position on
Where a new fishery is proposed, the Member in question is required to provide notice of its intent to fish three months in advance of the next regular
Exploratory fishing, on the other hand, was first considered under the auspices of
Similar obligations concerning the application process and data collection protocols established for new fisheries are required of those intending to enter notifications for exploratory fishing; hence such activities are also subject to the completion of a
Although the definitional requirements of
The first significant evaluation by
The question as to how the apparent novelty of this technique might affect the classification of these fishing efforts caused a degree of consternation within the Commission. Despite some reservations, the Scientific Committee acknowledged that krill fishing is evolving with regard to the pattern of operation, harvesting technology and participants and, accordingly, continuous fishing would not in its view be considered a form of new or exploratory fishing ‘if there is an adequate description of the selectivity of the method for krill, a characterisation of the haul (or catch rate) and information on the location of krill catches’.60 This interpretation was challenged by Russia, which considered that continuous fishing should be classified as an exploratory fishery until comprehensive data on its selectivity, the characteristics of the haul and species composition, location of the catches and haul duration had been generated and considered fully by the Scientific Committee.61 The Russian approach failed to attract further support and a degree of continuous fishing has prevailed in the
The consideration by
Taken on these terms, however, the practical distinction between the notification by the Cook Islands for pair trawling and the preceding deployment by Norway of the continuous fishing system is not immediately apparent: arguably neither notification would have technically met the conditions of
A final issue concerning the interpretation of new and exploratory fisheries under
Access to New and Exploratory Fisheries
Participation in new and exploratory fisheries under
Aside from a clear position on funding,74 the
Beyond the specific context of
Access to new and exploratory fishing opportunities in the
Where a new or exploratory fishery is established within the
It has been suggested that, in the context of the high seas, Article 119(1)(a) of the
Fisheries ‘pioneers’ with a strong record of compliance with catch restrictions and data management requirements may nevertheless receive favourable treatment by their respective domestic authorities.91 This is not without significance in the context of new and exploratory fisheries, where particular states have adopted increasingly stringent requirements for the national endorsement of purported notifications.92 Nevertheless, there appears to be limited support for this approach within wider multilateral practice. At a preliminary stage in the formation of its policies towards new and exploratory fisheries,
Some scope for preferential treatment is tentatively considered under the South Pacific Regional Fisheries Management Organisation (
Most significant, perhaps, in this regard is the negotiating history of Article 6(6) of the
The Management of New and Exploratory Fisheries under
The management of new and exploratory fisheries within the Southern Ocean has involved a concerted degree of regulatory improvisation on the part of the
New fisheries were first deliberated within
Seven exploratory fisheries, each of which concern toothfish,102 are currently operational within the
In this respect, a degree of cautious optimism is appropriate. Despite the steady expansion of exploratory fishing within the
Challenges in securing appropriate and sufficient data have been apparent since the inception of the
Notwithstanding high levels of compliance with effort restrictions in exploratory fisheries, concerns have been raised that data monitoring requirements have been circumvented by particular vessels, as deficiencies in tagging programmes (or, perhaps more pertinently, the retention of larger fish and the tag-and-release of less commercially valuable individuals) have threatened to distort and undermine the knowledge base generated by exploratory activities.108 In this respect,
Some difficulties have also been posed by changes in personnel involved in exploratory fisheries, with experienced operators that had gained an affinity with the practical demands of research fishing having been steadily replaced by crews that are less accomplished at performing these requirements.111 Nevertheless as
Where pertinent information has been forthcoming, concerns have also been raised by the Scientific Committee that a number of participants in exploratory fisheries have consistently failed to return meaningful data on marine ecosystems or dependent species, tending instead to focus primarily upon assessments of the target stock.115 Indeed, individual Members have observed that notifications for exploratory fishing have often neglected to include reference to dependent or related species or other ecosystem considerations, notwithstanding the clear requirements of
Data-collection challenges have been further compounded by the variable participation within exploratory fisheries pursued under
In 2011, the Commission urged ‘restraint’ in the development of particular exploratory fisheries and called upon the Members to apply internal restrictions upon capacity and effort in such endeavours.118 This call has been heeded by the main participants: the Australian authorities, for instance, have significantly strengthened the approval process for exploratory fishing, specifying that notifications will only be supported if they are in the national interest and meet stringent domestic requirements,119 while New Zealand has on occasion voluntarily withdrawn notifications in response to
Although the prospect of over-capacity within the Ross Sea remains a lingering concern,
One approach towards addressing the significant variability experienced between such programmes has been to introduce separate nomenclature – and, prospectively, distinct expectations – for particular exploratory fisheries. In 2010 an additional sub-category of ‘Data-Poor Exploratory Fisheries’ was identified by the Scientific Committee to denote ‘all those fisheries that are closed or exploratory fisheries for which stock assessments are lacking’,124 with specific reference to Subarea 48.6 and Divisions 58.4.1 and 58.4.2, which have consistently yielded limited data despite having been operational for a considerable period of time. Problems in obtaining accurate data from these fisheries, especially those conducted in Divisions 58.4.1 and 58.4.2, have been compounded by the scale of
Conceptual challenges to this approach aside, the sub-classification of exploratory fishing is indicative of a further – and essentially self-inflicted – malaise concerning the regulation of more specialised fishing regimes. In recent years, categories of non-commercial fishing have steadily proliferated, blurring the boundaries between forms of research-oriented activities. The additional complications raised by this approach are clearly reflected in recent developments in exploratory fishing under
This broad trend further illustrates the increasing need to (re-)establish clearer definitional boundaries between research fishing regimes, for which the likely remedy will be a complex exercise in mapping the methodological distinctions between the various forms of non-commercial operations, or re-casting current research fishing more formally within the regime of exploratory fishing. Such a move is not without complications or conflict, however, with some
Towards a Transition to Managed Stocks? The Ross Sea Exploratory Fishery
A question of key importance to the regulation of new and exploratory fisheries remains the conditions under which such activities may be eventually reformulated as commercial fisheries. Thus far, this process has yet to be formally concluded in relation to the various exploratory fisheries established under the auspices of
New fisheries within the Ross Sea area in Divisions 88.1 and 88.2 were first notified in 1997, primarily for Antarctic toothfish. In contrast to other exploratory fisheries outlined above, by 2001 it was observed that catches and participation in this region were significantly more buoyant, albeit at levels some considerable margin below the set limits.133 This attracted a steady influx of additional notifications and, by 2004, the Commission observed with concern that the Division 88.1 exploratory fishery ‘now had the largest number of vessels fishing in any of the
By 2010, the
Notwithstanding the evolving arrangements for the Ross Sea fishery in general, concerns have been raised that a proposed transition process may be somewhat premature. Although the data-collection requirements stipulated by
Critics of the current regime have argued that these arrangements are insufficiently nuanced to facilitate the effective implementation of the precautionary approach, citing an inadequate ecosystem monitoring programme within these fisheries and questioning whether the framework has been applied in a genuinely adaptive manner, given that the data generated thus far have resulted in little alteration to the annual quota.141 This has led to calls to curtail fishing effort within the Ross Sea exploratory fishery142 and even for a moratorium on further activities.143 These misgivings have been trenchantly rejected by members of the
Viewed as a unique test case of the implementation of regulatory requirements for exploratory fishing, it appears from the Ross Sea context that, if such activities were re-classified as commercial enterprises, a degree of transitional management is likely to occur and further research and data collection obligations would still be incumbent upon participants, at least in the short-term. In this manner,
Emerging Regimes for New and Exploratory Fishing
Beyond the auspices of
Reflecting this proactive regulatory philosophy, the
[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
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
These divergent negotiating positions notwithstanding, few interpretive complications have ultimately afflicted the limited
To this end,
Thus far, exploratory fishing within the
A limited degree of exploratory fishing for toothfish has also commenced under the auspices of
This divergent approach sits uneasily alongside the neighbouring
Elsewhere, the regulation of new and exploratory fishing remains essentially prospective in nature. Among the other post-
Meanwhile, an express mandate for the supervision of ‘experimental or exploratory fishing activities’ has been ‘retro-fitted’ into the
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
Subsequent developments within the framework for a ‘stepwise’ approach as part of a ‘Broader Process’ towards the potential establishment of a new
Thus far, the models of best practice advanced under
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
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
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
In 2004, the
In 2009, the
[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
In a manner reminiscent of the further implementation of Article 6(6) of the
This broad approach is clearly exemplified by the arrangements adopted by
Any prospective expansion of bottom fishing beyond existing sites is addressed under Articles 6 and 7 of the
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
Given the considerable overlap in membership and the contemporaneous formulation of their respective policies,
A similar procedure is also envisaged in the context of the
Buttressing these general policies – and reflective of its proactive regulatory ethos –
The policies adopted by a range of
In the present context, particular commitments towards deep-sea fishing may be identified, with
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
Latterly, a similar degree of global influence has been forthcoming in respect of policies to address the protection of
These developments notwithstanding, the maturation of policies towards new and exploratory fisheries has thus far only occurred under the auspices of
However, if the regulatory arrangements for new and exploratory fisheries under
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
J-P Gattuso, A Magnan, R. Billé, WWL Cheung, EL Howes, F Joos, D Allemand, L Bopp, SR Cooley, CM Eakin, O Hoegh-Guldberg, RP Kelly, H-O Pörtner, AD Rogers, JM Baxter, D Laffoley, D Osborn, A Rankovic, J Rochette, UR Sumaila, S Treyer and C Turley, ‘Contrasting Futures for Ocean and Society from Different Anthropogenic
AL Perry, PJ Low, JR Ellis and JD Reynolds, ‘Climate Change and Distribution Shifts in Marine Fishes’ (2005) 308 Science 1912–1915, at pp. 1913–1914.
WWL Cheung, VWY Lam, JL Sarmiento, K Kearney, R Watson, D Zeller and D Pauly, ‘Large-Scale Redistribution of Maximum Fisheries Catch Potential in the Global Ocean under Climate Change’ (2010) 16(1) Global Change Biology 24–35, at pp. 30–31.
UR Sumaila, WWL Cheung, VWY Lam, D Pauly and S Herrick, ‘Climate Change Impacts on the Biophysics and Economics of World Fisheries’ (2011) 1 Nature Climate Change 449–456, at p. 451.
WWL Cheung, R Watson and D Pauly, ‘Signature of Ocean Warming in Global Fisheries Catch’ (2013) 497 Nature 365–368, at pp. 365–66.
I Montero-Serra, M Edwards and MJ Genner, ‘Warming Shelf Seas Drive the Subtropicalization of European Pelagic Fish Communities’ (2015) 21(1) Global Change Biology 144–153, at pp. 149–150.
P Petitgas, J Alheit, MA Peck, K Raab, X Irigoien, M Huret, J Van Der Kooij, T Pohlmann, C Wagner, I Zarraonaindia and M Dickey-Collas, ‘Anchovy Population Expansion in the North Sea’ (2012) 444 Marine Ecology Progress Series 1–13, at p. 10.
See WWL Cheung, J Pinnegar, G Merino, MC Jones and M Barange, ‘Review of Climate Change Impacts on Marine Fisheries in the UK and Ireland’ (2012) 22(3) Aquatic Conservation: Marine and Freshwater Ecosystems 368–388, at p. 374.
See further MS Wisz, O Broennimann, P Grønkjær, PR Møller, SM Olsen, D Swingedouw, RB Hedeholm, EE Neilsen, A Guisan and L Pellissier, ‘Arctic Warming Will Promote Atlantic-Pacific Fish Interchange’ (2015) 5 Nature Climate Change 261–265, at p. 262 and JS Christiansen, CW Mecklenburg and OV Karamushko, ‘Arctic Marine Fishes and their Fisheries in the Light of Global Change’ (2014) 20(2) Global Change Biology 352–359, at pp. 354–356. The extent of this potential windfall is nevertheless highly uncertain, as projections conversely indicate that ocean acidification and fresh-water inflow into this region may ultimately inhibit particular fisheries: see VWY Lam, WWL Cheung and UR Sumaila, ‘Marine Capture Fisheries in the Arctic: Winners or Losers under Climate Change and Ocean Acidification?’ (2016) 17(2) Fish and Fisheries 335–357, at pp. 348–349.
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 (New York, 4 August 1995, in force 11 December 2001) 2167
Wisz et al. (n 10) at p. 263.
Indeed, both the Northwest Atlantic Fisheries Organization (
Whereas Article 8(3) of the
Report of the Eighth Meeting of the Commission (CCAMLR-VIII), para. 123.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1883
Articles 87(1)(a) and 116.
Articles 61 (
Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999.
Ibid., para 90(d).
Ibid., paras 77–78. The resulting Arbitral Tribunal subsequently ruled that it did not in fact have competence over the dispute and discharged the order for provisional measures previously made by
Article 6(6) is also reproduced largely verbatim as Article 7.5.4 of the
See especially PGG Davies and C Redgwell, ‘The International Legal Regulation of Straddling Fish Stocks’ (1997) 67 British Yearbook of International Law 199–274, at pp. 259–265; F Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge University Press, Cambridge, 1999) at p. 162; D Freestone, ‘Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement’ in E Hey (ed.), Developments in International Fisheries Law (Kluwer, Alphen aan den Rijn, 1999) 287–325.
M Tsamenyi and Q Hanich, ‘Fisheries Jurisdiction under the Law of the Sea Convention: Rights and Obligations in Maritime Zones under the Sovereignty of Coastal States’ (2012) 27(4) International Journal of Marine and Coastal Law 783–793, at pp. 790–791.
Draft Convention submitted by Argentina, Canada, Chile, Iceland and New Zealand; Document A/CONF.164.L.11/Rev.1; reproduced in Lévy and Schram (n 13) at p. 176.
Ibid. This reference to the
See n 98 et seq.
GJ Hewison, ‘The Precautionary Approach to Fisheries Management: An Environmental Perspective’ (1996) 11(3) International Journal of Marine and Coastal Law 301–332, at p. 323.
Convention for the Conservation of Antarctic Marine Living Resources (Canberra, 20 May 1980, in force 7 April 1982) 1329
Article ii(1). Under Article ii(2) this includes the ‘rational use’ of these resources, a concept that is left undefined in the Convention.
Report of the Eleventh Meeting of the Commission (CCAMLR-XI), para. 4.27. On the extensive history of experimental and exploratory fishing in these waters – which pre-dates the advent of
Ibid., para 8.
Report of the Ninth Meeting of the Commission (CCAMLR-IX), para 9.8. Broad support was expressed for the principle of advance notice, although a number of delegations raised concerns over ‘the legal implications of this measure, and appropriate definitions of new and developing fisheries’: ibid., para 9.7.
Article 2 and Annex 21-01/A.
Ibid., para 4.30.
Ibid., para 4.32.
Para 1(ii) of
Report of the Twelfth Meeting of the Commission (CCAMLR-XII), para 8.6. Indeed, one of the first new fisheries to be established was developed within these waters by South Africa, which pledged that the spirit of the relevant provisions ‘will be followed closely in managing the fishery’: Report of the Fourteenth Meeting of the Commission (CCAMLR-XIV), para 6.3.
Elements of new fishing techniques had been sporadically raised prior to this. In 2002, Australia notified the Commission of its intention to introduce long-lining for Patagonian toothfish in an established fishery in Division 58.5.2. As the notification was ‘not formally’ one for new or exploratory fishing, it was considered sufficient that the proposing Member had given advance notice of these adjustments and of the management provisions planned for that fishery: Report of the Twenty-First Meeting of the Commission (CCAMLR-XXI), para 9.4. Meanwhile, in 2004, the Scientific Committee failed to reach consensus over the definitional status of the proposed introduction of a limited degree of bottom-trawling, interspersed with mid-water trawls, for icefish: Report of the Twenty-Third Meeting of the Scientific Committee (SC-CCAMLR-XXIII), paras 4.127–4.134. Unmodified bottom-trawling had been previously classed as a new fishery by both the notifying Member (Australia) and the Scientific Committee: Report of the Twenty-First Meeting of the Scientific Committee (SC-CCAMLR-XXI), para 5.6.
Report of the Twenty-Fourth Meeting of the Commission (CCAMLR-XXIV), paras 4.23–4.24. There is no official record of prior consideration by
Report of the Twenty-Fourth Meeting of Scientific Committee (SC-CCAMLR-XXIV), para 4.8.
Report of the Twenty-Fifth Meeting of the Commission (CCAMLR-XXV), para 4.42. At this juncture Russia again sought unsuccessfully to reclassify these endeavours as an exploratory fishery, on the basis that this would not impede the development of the fishery, while the specific framework for exploratory fishing activities might actually overcome some of the methodological and organisational difficulties experienced in implementing this new system: ibid., para 13.6.
S Nicol, J Foster and S Kawaguchi, ‘The Fishery for Antarctic Krill – Recent Developments’ (2012) 13(1) Fish and Fisheries 30–40, at p. 32.
See in particular the response of New Zealand: Report of the Twenty-Sixth Meeting of the Commission (CCAMLR-XXVI), para 4.40.
Ibid., para 13.20.
Ibid., para 13.21.
The Cook Islands has not yet submitted a revised application for new fishing for krill using pair trawls and the prospects for such a notification thereby remain a matter of conjecture. It may be speculated whether, in principle, another new entrant might have proved more successful, or whether a ‘conventional trawl’ as envisaged by
Report of the Seventeenth Meeting of the Scientific Committee (SC-CCAMLR-XVII), para 5.26. As a case in point, having received no notifications or reports of fishing for a number of years, in 2009
Report of the Sixteenth Meeting of the Commission (CCAMLR-XVI), para 10.3.
Para 5 of
Report of the Eighteenth Meeting of the Commission (CCAMLR-XVIII), paras 9.42–9.52.
Public funding is not available for exploratory funding under current
Although little regulated within
Council Regulation (
This position was clarified in 2011 in relation to the Antarctic Chieftain, a longstanding participant in exploratory fisheries that has alternated between the registries of Australia and New Zealand for particular fishing activities: Report of the Thirtieth Meeting of the Commission (CCAMLR-XXX), para 11.7; see also
See, for instance,
See para 9 of
Indeed, as argued by New Zealand – and enthusiastically supported by numerous other delegations – accepting purported notifications from vessels with a poor record of compliance with the various
A Serdy, ‘Antarctic Fisheries Management’ in EJ Molenaar, AG Oude Elferink and D Rothwell (eds), The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Martinus Nijhoff, Leiden/Boston, 2013) 217–242, at p. 234. Individual Members have argued that a denial of access on this basis merely serves to perpetuate a cycle of
This point was raised in 2007 in relation to the Volna, a Russian-flagged vessel that had seemingly fished in the
This position arose in 2016, in the absence of confirmation that a Korean-flagged vessel had dumped an allegedly illegal catch and had thus been fully deprived of any apparent benefits of this activity. The Members agreed that exploratory fishing could not be undertaken by this vessel until this issue had been fully resolved: Report of the Thirty-Fifth Meeting of the Commission (CCAMLR-XXXV), para 3.13.
See in particular the comments of the
Korea, for instance, has been prompted to withdraw purported notifications for exploratory fishing due to clear opposition from other Members over records of compliance: see further below n 110 et seq.
EJ Molenaar, ‘The South Tasman Rise Arrangement of 2000 and Other Initiatives on Management and Conservation of Orange Roughy’ (2001) 16(1) International Journal of Marine and Coastal Law 77–124, at pp. 114–115.
The requirement to remove obstacles to research, which was not ultimately incorporated into Article 243, was advocated as a means of ensuring that scientific cooperation would not be stymied by Cold War constraints: S Rosenne and A Yankov (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume IV (Martinus Nijhoff, Dordrecht, 1990) at pp. 474–478.
Molenaar (n 89) at p. 115. Such a trend is discernible in Australian practice, for instance, which has incentivized domestic benefits for pioneer fishers.
See for instance Australian Fisheries Management Authority, Guide to CCAMLR New and Exploratory Fisheries (
Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (Auckland, 14 November 2009, in force 24 August 2012) 
Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (Windhoek, 20 April 2001, in force 30 April 2003) 2221
Document A/CONF.164/13.Rev.1 of 30 March 1994; reproduced in Lévy and Schram (n 13) at p. 440 (emphasis added). Little indication is publicly available as to the intended degree of cooperation required and the implications of this privileged status in this relatively short-lived version of the draft provision. Given the strong assertions of equal rights of access within
Report of the Tenth Meeting of the Commission (CCAMLR-X), para 6.11.
See further M Belchier, T Peatman and J Brown, ‘The Biology Ecology and Development of Fishery Management Advice for the Anomuran Crabs at South Georgia (CCAMLR Subarea 48.3)’ (2012) 19
There is also some scope for tuna fishing activities, a species with a chequered history of under-regulated catches within the
The limits for each exploratory fishery are established, respectively, under
Only a fraction of the initial notifications received by
Unprosecuted notifications (i.e., notifications that were never ultimately pursued in that particular season) were rarely vexatious, however, with fishers often postponing their exploratory operations due to unduly hazardous nautical conditions in an extreme environment, unanticipated financial issues or, indeed, to improve their capacity to return meaningful data. Accordingly, it was considered ‘inappropriate for the Commission to use sanctions as a means of reducing the number of such notifications’: Report of the Twentieth Meeting of the Commission (CCAMLR-XX), para 7.6. Nevertheless, the Scientific Committee – which is rather more directly affected by this problem than the Commission – has suggested that future fishing opportunities ought to be withheld for contracting parties that routinely fail to implement their notifications: Report of the Twenty-Sixth Meeting of the Scientific Committee (SC-CCAMLR-XXVI), para 3.46.
Report of the Twenty-Second Meeting of the Commission (CCAMLR-XXII), para 3.19. Since 2003, an assessment fee has been levied for each individual notification, whereas in 2016,
Report of the Thirty-First Meeting of the Scientific Committee (SC-CCAMLR-XXXI), para 3.127.
See the discussion at n 87 et seq.
Report of the Thirty-Second Meeting of the Commission (CCAMLR-XXXII), para 5.63. The Korean-flagged vessels in question were subsequently considered to have committed
Report of the Working Group on Fish Stock Assessment 2012, para 5.21. This body has raised concerns as to the prospective implications of these less culpable errors on the evaluation and implementation of research plans.
Report of the Twenty-Eighth Meeting of the Scientific Committee (SC-CCAMLR-XXVIII), para 11.7.
Report of the Thirty-Fourth Meeting of the Commission (CCAMLR-XXXIV), para 9.19.
See especially the comments of the Swedish delegation, ibid., para 9.19.
Report of the Thirty-Fourth Meeting of the Scientific Committee (SC-CCAMLR-XXXIV), para 3.160.
For instance, given an initially high level of participation in in Division 58.4.4, New Zealand withdrew its notification ‘in the spirit of’ the preamble of (then)
CCAMLR Symposium, 5–8 April 2005, Universidad Austral de Chile, Valdivia; Volume 1: Report of the Chairs, 6 (available online at http://www.antarctica.gov.au/law-and-treaty/ccamlr/symposium-in-chile-2005), at which a mooted five-year limit for individual exploratory fisheries failed to find favour within
Indeed, in one memorable instance extensive catch data from exploratory longlining were consumed by an opportunistic pod of orcas: Report of the Thirtieth Meeting of the Scientific Committee (SC-CCAMLR-XXX), para 3.123.
Report of the Twenty-Ninth Meeting of the Scientific Committee (SC-CCAMLR-XXIX), para 3.126. This appears to have been a term of art to distinguish the exploratory fisheries of the Ross Sea, which were considered by that point to have met the data-collection requirements of
DG Ainley and D Pauly, ‘Fishing Down the Food Web of the Antarctic Continental Shelf and Slope’ (2014) 50(1) Polar Record 92–107, at p. 96.
Indeed, the Scientific Committee briefly mooted the amalgamation of the stages of ‘new’ and ‘exploratory’ fishing in 2008, so that exploratory fishing would be simply extended to incorporate the first year of operation, as the rather more specific data-collection requirements of
Review of the CCAMLR Regulatory Framework and Recommendations for Streamlining Fishery Status; Document CCAMLR-XXXIV/17 Rev.1, 6–7.
As was, for instance, the clear viewpoint of the
Article 22(2); emphasis added.
Specific management measures for exploratory fisheries in the Ross Sea are addressed through
Report of the Twenty-Third Meeting of the Commission (CCAMLR-XXIII), para 9.12.
The Ross Sea Toothfish Fishery: Proposal of Conditional Transition of Classification from Exploratory to Established; Document
Hanchet et al. (n 136) at p. 411. There are also limited data on the importance of toothfish as a prey species to top predators within the Antarctic ecosystem: MH Pinkerton and JM Bradford-Grieve, ‘Characterizing Foodweb Structure to Identify Potential Ecosystem Effects of Fishing in the Ross Sea, Antarctica’ (2014) 71(7) ICES Journal of Marine Science 1542–1553, at p. 1550.
PA Abrams, DG Ainley, LK Blight, PK Dayton, JT Eastman and JL Jacquet, ‘Necessary Elements of Precautionary Management: Implications for the Antarctic Toothfish’ (2016) 17(4) Fish and Fisheries 1152–1174, at pp. 1156–1159; see also PA Abrams, ‘How Precautionary is the Policy Governing the Ross Sea Antarctic Toothfish (Dissostichus mawsoni) Fishery?’ (2014) 26(1) Antarctic Science 3–14.
Abrams et al. (n 141) at p. 1170.
LK Blight, DG Ainley, SF Ackley, G Ballard, T Ballerini, RL Brownell Jr., C-HC Cheng, M Chiantore, D Costa, MC Coulter, P Dayton, AL Devries, R Dunbar, S Earle, JT Eastman, SD Emslie, CW Evans, RA Garrott, S Kim, G Kooyman, A Lescroël, M Lizotte, M Massaro, S Olmastroni, PJ Ponganis, J Russell, DB Siniff, WO Smith Jr., BS Stewart, I Stirling, J Willis, P Wilson and EJ Woehler,‘Fishing for Data in the Ross Sea’ (2010) 330 Science 1316, at p. 1316.
S Hanchet, K Sainsbury, D Butterworth and C Darby, ‘CCAMLR’s Precautionary Approach to Management Focusing on Ross Sea Toothfish Fishery’ (2015) 27(4) Antarctic Science 333–340, at p. 340.
On overcapacity see Report of the Thirty-First Meeting of the Commission (CCAMLR-XXXI), para 5.25; on current fishing and vessel practices see Report of the Thirty-Third Meeting of the Commission (CCAMLR-XXXIII), paras 5.33–5.36.
Y Takei, Filling Regulatory Gaps in High Seas Fishing: Discrete Stocks, Deep-Sea Fisheries and Vulnerable Marine Ecosystems (Martinus Nijhoff, Leiden/Boston, 2013) at pp. 210–211.
Report of the resumed Review Conference on the 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; Document A/CONF/210/2010/7, para 37.
Ibid. Similarly, under Article 3(2)(a), the precautionary approach ‘as described in’ the
Article 1(1)(f), (g) and (h).
See further Takei (n 146) at p. 219.
Report of the Third Scientific Committee Meeting at p. 10.
See n 95 et seq. The Scientific Committee has also emphasized that, irrespective of exemplary conduct, exploratory fishing offers no guarantee that such activities will be approved in the future, or that the fleet in question will attain any operative advantage should the fishery ultimately transition to commercial management: Report of the Third Scientific Committee Meeting (n 152) at p. 10.
Para 4(c) considers a fishery to be ‘exploratory’ if it has been undertaken within the previous ten years pursuant to
Report of the Third Scientific Committee Meeting (n 152) at p. 9. The
Report of the Fourth Scientific Committee Meeting at p. 11.
Report of the Tenth Meeting of the Scientific Committee to SEAFO, para 23.1.
Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Honolulu, 5 September 2000, in force 19 June 2004) 2275
Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean (Seoul, 1 April 2012, in force 19 July 2015; available online at http://npfc.r-cms.jp/About_Convention/). Under Article 7(3)(d) the Commission may ‘establish the terms and conditions for any experimental, scientific, and exploratory fishing activities in the Convention Area’, while Article 3(h) obliges participants to ensure ‘that any expansion of fishing effort, development of new or exploratory fisheries, or change in the gear used for existing fisheries, does not proceed without prior assessment of the impacts of those fishing activities on the long-term sustainability of fisheries resources and a determination that those activities would not have significant adverse impacts on vulnerable marine ecosystems, or ensuring that those activities are managed to prevent those impacts or are not authorized to proceed’.
Southern Indian Ocean Fisheries Agreement (Rome, 7 July 2006, in force 21 June 2012) 2835
Report of the Second Meeting of the Parties to the Southern Indian Ocean Fisheries Agreement at p. 59.
Convention on Cooperation in the Northwest Atlantic fisheries (Ottawa, 24 October 1978, in force 1 January 1979) 1135
Resolution 2/99 of 17 September 1999 to Guide Implementation of the Precautionary Approach within
Indeed, the 2007 amendments were expressly intended to be applied ‘in accordance with Article 6 of the 1995 [
See Wisz et al. (n 10) at p. 262 and Lam et al. (n 10) at pp. 348–349.
Available online at https://www.regjeringen.no/…/ud/…/declaration-on-arctic-fisheries-16-july-2015.pdf (the ‘Oslo Declaration’). For an extensive overview of this process see EJ Molenaar, ‘International Regulation of Central Arctic Ocean Fisheries’ in MH Nordquist, JM Moore and R Long (eds), Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries (Brill, Leiden/Boston, 2016) 429–463, at pp. 448–457. The Oslo Declaration further stipulates that any commercial fishing shall be conducted solely under the auspices of ‘one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards’. This raises the intriguing question as to whether the Joint Norwegian-Russian Fisheries Commission, which manages shared and straddling stocks within the Barents Sea, qualifies as such and may therefore have a potential regulatory mandate with regard to, inter alia, new and exploratory fisheries within these waters. On the modern status of the Commission see I Dahl, ‘Maritime Delimitation in the Arctic: Implications for Fisheries Jurisdiction and Cooperation in the Barents Sea’ (2015) 30(1) International Journal of Marine and Coastal Law 120–157, at pp. 132–137 (suggesting that the Commission may meet the criteria enunciated by the
Fishery Management Plan for Fish Resources of the Arctic Management Area (available online at http://www.npfmc.org/arctic-fishery-management/) at p. 6. This process shares elements of the
B Ayles, L Porta and RM Clarke, ‘Development of an Integrated Fisheries Co-Management Framework for New and Emerging Commercial Fisheries in the Canadian Beaufort Sea’ (2016) 72 Marine Policy 246–254, at p. 248.
For instance, licenses to fish for new or under-utilized species in Canada are addressed under the New Emerging Fisheries Policy, first adopted in 1996. Although weighted somewhat towards assessing the commercial viability of future stocks, feasibility and exploratory fishing licenses also involve limited fishing activities and the collection of ecosystem data. Similarly, in the Alaskan Arctic
See especially European Parliament Resolution of 22 January 2011 on a Sustainable
Molenaar (n 176) at p. 455.
Indeed, ‘the manner in which the agreement addresses exploratory fishing’ had been recently identified as an issue requiring further discussion:
T Morato, R Watson, TJ Pitcher and D Pauly, ‘Fishing Down The Deep’ (2006) 7(1) Fish and Fisheries 24–34, at p. 31.
EA Norse, S Brook, WWL Cheung, MR Clark, I Ekelund, R Froese, KM Gjerde, RL Haedrich, SS Hepple, T Morato, LE Morgan, D Pauly, R Sumaila and R Watson, ‘Sustainability of Deep-Sea Fisheries’ (2012) 36(2) Marine Policy 307–320, at p. 308.
Morato et al. (n. 184), at p. 25.
Bottom-trawling is an umbrella term for a variety of trawl fisheries, each of which uses gear variations that encapsulate weighted features with the capacity to impact both hard- and soft-bottom benthic ecosystems; see further JW Valdermansen, T Jørgensen and A Engås, Options to Mitigate Bottom Habitat Impact of Dragged Gears (
EJ Molenaar, ‘Addressing Regulatory Gaps in High Seas Fisheries’ (2005) 20(3) International Journal of Marine and Coastal Law 533–570, at p. 538.
KM Gjerde and D Freestone, ‘Unfinished Business: Deep-Sea Fisheries and the Conservation of Marine Biodiversity Beyond National Jurisdiction’ (2004) 19(3) International Journal of Marine and Coastal Law 209–222, at p. 209.
M Lodge, ‘Improving International Governance in the Deep Sea’ (2004) 19(3) International Journal of Marine and Coastal Law 299–316, at p. 301. For a full accounting of the variety of bodies through which efforts were made to promote deep-sea bottom fishing as an issue of regulatory concern, commencing in 2000 at the first meeting of the United Nations Informal Consultative Process on Oceans and the Law of the Sea, see LA Kimball, ‘Deep-Sea Fisheries of the High Seas: The Management Impasse’ (2004) 19(3) International Journal of Marine and Coastal Law 259–287, at pp. 263–272.
See further DA Balton and DC Zbicz, ‘Managing Deep-Sea Fisheries: Some Threshold Questions’ (2004) 19(3) International Journal of Marine and Coastal Law 247–258, at pp. 252–255.
In its global review of the scale and regulation of bottom fishing beyond national jurisdiction, the
A/Res/59/25 of 17 November 2004, paras 66–69. This had been preceded in 2002 with a more ambiguous call for action by the
A/Res/61/105 of 8 December 2006, para 83(b) (emphasis added).
A/Res/64/72 of 4 December 2009, paras 113, 117 and 119–124; A/Res/66/68 of 6 December 2011, paras 121, 126, 129, 130, 132, 133 and 134; A/Res/71/123 of 7 December 2016, paras 174–182.
Resolution 64/72 (para 128) and Resolution 66/68 (para 137).
At this juncture, the
Article 2(d), Recommendation 9:2015; see Consolidated Text of all
Report of the Tenth Meeting of the Scientific Committee to SEAFO, para 6.9.2.
See further D Diz, ‘The Seamounts of the Sargasso Sea: Adequately Protected?’ (2016) 31(2) International Journal of Marine and Coastal Law 359–370, at pp. 362–363.
This was first established under
Bottom Fishery Impact Assessment Standard; available online at https://www.sprfmo.int/conservation-measures/benthic-impact-assessments/, at p. 5.
See further the full series of documentation available online at https://www.sprfmo.int/conservation-measures/benthic-impact-assessments/.
Report of the Second Scientific Committee Meeting, at p. 15.
Diz (n 213) at pp. 366–367.
As Takei observes, the position of actors other than
This is particularly true of restrictions mandated by the
G Sander, ‘International Legal Obligations for Environmental Impact Assessment and Strategic Environmental Assessment in the Arctic Ocean’ (2016) 31(1) International Journal of Marine and Coastal Law 88–119, at pp. 105–106.