Workshop on International Law, Natural Resources and Sustainable
Development
Shifting Responsibility for the Sustainability of the Living Marine Resource
Jill Wakefield
School of Law, University of Warwick
Long before the first international agreement over the use of marine fish resources, fishing
activity had denuded the coastal strips and moved out into the seas, mechanisation
facilitating the exploitation of deeper and more distant waters. Over decades the situation
has worsened, so that the industry is extending even further and deeper into the seas and
oceans, into areas in which there is little control or regulation of extraction operations.
Deep seas fishing has been likened to mining activity, in which appropriators serially
eliminate fishable populations and then move on. It has been pointed out that ‘an
ecologically and economically preferable strategy would be rebuilding and sustainably
fishing resilient populations in the most suitable places, namely shallower and more
productive marine ecosystems that are closer to markets’.
The institutional frameworks necessary to address issues in connection with the marine
commons agreed by States are set out in the 1982 UN Convention on the Law of the Sea.
The defining aspect of the 1982 UNCLOS was to extend States’ territorial waters to a zone
up to 12 miles from the base line and permit the establishment of Exclusive Economic Zones
(EEZs) up to 200 nautical miles from their base line. Within the EEZ, States have sovereign
rights to exploit, conserve and manage marine resources, subject only to a responsibility to
protect and preserve the marine environment. Pursuant to EU law, the fishing rights within
the EEZs of the Member States are regulated under the EU’s common fisheries policy (CFP).
This is based on international law provisions - there is very little in it that is EU law.
International prescription is for regulation, so if regulation will deliver sustainability it should
be evident in the EU.
In the latest round of common fisheries policy reform, the European Commission proposes
redress to the twin problems of overfishing and overcapacity through regulatory control on
access in a mandatory scheme of individual transferable rights and increased involvement of
appropriators in decision-making through stakeholder participation in the implementation
of policy at regional level. However, these proposals have been rejected by the legislative
bodies and the new policy that should have been in place at the start of 2013 is still being
negotiated. Under the reform proposals there is no intention to incorporate EU
environmental provisions into fisheries policy and the new policy is unlikely to mark a break
with previous regulation to deliver sustainability. Within the EU, the regulatory regime has
all the hallmarks of a system that has lost its utility. A mechanism needs to be found to shift
the responsibility for the sustainability of the resource from the regulator to the
appropriator and force the appropriator rather than the regulator to carry responsibility for
the state of the EU fish resource which will include compensating damage caused to the
resource.
This paper proposes a market based system applying the user pays principle which has been
deployed by the EU in other sectors to good effect. If the system works within the EU there
is no reason why it should not work in other EEZs, in particular those in which the EU
participates. The problems of the high seas would remain to be resolved.