Abstract

The regulation of high seas fisheries must correspond to the nature of the resource base and its location, to encompass the social, economic and political realities of fishing, as well as the wider international legal context within which fisheries are regulated. Both the world’s oceans and their resources are common-pool natural resources: it is difficult or costly to exclude access to the resource, and the benefits of using any part of the resource subtracts from the benefits available to others. The physical attributes of the oceans and marine living resources do not entail a particular legal regime, although it does render them more susceptible to certain forms of legal regulation. Thus the high seas, and fish stocks there, have generally been regarded as ‘a commons’ - non-exclusive and open to access by all States. This is enshrined in the fundamental legal principle of freedom of the high seas. We now understand this laissez-faire approach to have left fish stocks vulnerable to over-exploitation or exploitation without due regard to the adverse impacts of fishing.

States have responded to the problem of overfishing by developing a rather complex and fragmented governance regime for high seas fisheries. This complexity is in part a response to the natural complexity of resource systems, as manifest in the ecosystem-based approach. It is also a response to the increasing and sometimes conflicting uses we make of the oceans. At the heart of this is the 1982 United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS is both a product of history and a living instrument, one that was specifically designed to adapt to new challenges and circumstances. Yet UNCLOS, and international fisheries law more generally, seem insufficient to address some of the challenges facing high seas fisheries. Fisheries do not exist in a vacuum. Fishing takes place within the broader marine environment. Fishing responds to and services global markets. As such, it is only logical that fisheries are subject to regulatory influence from ‘other’ domains such as environmental law and trade law. Recognizing these parameters, the present chapter traces the development of international fisheries law on the high seas, before assessing its main features and examining how international fisheries law interacts with related regimes, focusing particularly on the use of trade measures and on marine protected areas (MPAs).