The opposability of regional fisheries management regimes to third parties

Abstract

Regional fisheries management organisations (RFMOs) and regional fisheries management arrangements have become the cornerstones of international fisheries management. The role of these regional fisheries management regimes is to ensure, through the allocation of fishing quotas to their members, as well as the adoption of technical, compliance and enforcement measures, the sustainable exploitation and conservation of fish stocks in international waters, and to some extent in national waters. There are currently nineteen RFMOs and two regional fisheries management arrangements around the world, covering most of the globe's oceans and seas, dedicated to the management and the conservation of the most commercially valuable fish stocks. Regional fisheries management regimes are currently facing a number of internal and external pressures, one of them being how to deal effectively with third party fishing in their zones of competence. Indeed, third party fishing oblivious to regional fisheries measures, greatly undermines management and conservation efforts conceded by regional fisheries management contracting parties. This research therefore seeks to analyse the scope and legal framework of the opposability of regional fisheries management regimes to third parties. The theoretical question at the core of this research is whether regional regimes created by treaty establish rights and duties for third parties in a way which eventually breaks new ground with respect to the pacta tertiis rule. Such a shift would therefore mean a restriction to State sovereignty, a mitigation of voluntarism in international law, as well as a fundamental alteration of the customary principle of the right for all States to fish on the high seas. In order to answer this question, this research analyses the various modalities of the opposability of regional regimes to third parties, as well as the various status of third parties. Third party behaviour, and more specifically the form of their consent or acquiescence to the legal rules aimed at regulating their fishing activities are also at the centre of this research. Finally, this research seeks to identify, whether general or regional customary rules may have emerged, or can be considered as emerging in the field of international fisheries. The first part of this research presents the evolution of international fisheries law, which has led to the consecration of regional fisheries management organisations and arrangements as the cornerstone of international fisheries management. The second part establishes the legal framework for the opposability of regional fisheries regimes to third parties. The third part analyses deterrent, control and coercive measures adopted against third parties whose activities of vessels flying their flag are considered as undermining the effectiveness of regional conservation and management measures. Finally, one of the main conclusions of this research is that while strong universal and regional legal frameworks exist and enable to a certain extent the opposability of regional fisheries regimes to third parties in ways which can be compatible with international law, the enforcement of these measures against third parties are actually often initially limited by the reluctance of contracting parties to these regional regimes to implement them against third parties. Show more