Rights and Obligations of New Entrants into the Southern Bluefin Tuna and Other International Fisheries

Abstract

This thesis analyses the legal issues arising when a fully exploited or overexploited international fishery cannot, because a significant part of the fishing takes place on the high seas where there is a customary and conventional right of all States for their national to fish on the high seas, readily be closed to new entrants. If the complete collapse of the fishery predicted by the economics literature (and in many instances borne out by real-world examples) is not to ensue, some way must be found of circumventing this problem of open access. Drawing largely on the documented history of the interactions among the States (and Taiwan) involved in the southern bluefin tuna (SBT) fishery, supplemented where relevant by reports of meetings of treaty-based commissions managing other international fisheries, the thesis traces, and attempts to explain, the development of a property-rights mentality among existing participants in the fisheries implicit in the arguments they employ to minimise newcomers’ catch or keep them out altogether. Though at odds with the formal rule, to which they nonetheless continue to appear attached, some accommodation of the property concept will be needed if the recovery of the stocks to the biomass that generates the maximum sustainable yield is ever to take place. At present the participants in the SBT and other depleted international fisheries have insufficient incentive to insist on the catch reductions necessary to permit this recovery and thereby, it is argued, are collectively in breach of their obligations to all other States that are potential new entrants. Among the possible solutions explored are the development of trading in fishery commission quotas – these, as shown by an analysis from first principles, are negative obligations (for catch not to exceed given limits) and thus lack the positive characteristics of truly tradable assets, but, as also demonstrated, they can even so be made to fulfil asset-like functions if the commission as a whole is willing. The well developed system of accounting for catch that any worthwhile trading mechanism would require in turn gives rise to the conclusion that this, in the form of State responsibility – in terms of both attribution of fishing activities on the high seas to the flag State and the secondary obligation to wipe out the consequences of breach of a primary obligation that occurs when limits are exceeded – has hitherto been a neglected area of international fisheries law that invites further research. Meanwhile, the paradoxical result is that the freedom to fish is not just the source of the overfishing problem but potentially also a necessary part of its solution, in that a small number of new entrants may be the only ones with a sufficient economic interest to enforce the obligation to permit the stocks’ recovery.