INTRODUCTION
Traditionally, territorial seas and high seas were the two categorisations in international maritime law. Territorial seas allowed coastal states (hereinafter, ‘CSs’) monopoly over fisheries sources, necessitating determination of the extent of such control. Therefore, fisheries’ interests of states inherently formed the basis of the development of international sea delimitation. States also include non-coastal states—Land-Locked states (hereinafter, ‘LLSs’) and Geographically Disadvantaged states (hereinafter, ‘GDSs’). The LLGDSs have ensured the inclusion of their fisheries interests in international law by forming an important interest group during the formulation of the United Nations Conference on the Law of the Sea 1982 (hereinafter, ‘UNCLOS’) and its related negotiations. Since, traditionally, fisheries and other living marine resources have contributed immensely to the state’s economic and cultural growth, concerns of over-exploitation have also rightly followed.
Several treaties and international agreements—binding and non-binding, have been proposed to bring about international commitment towards the sustainability of marine resources. One such recent agreement is the WTO Agreement on Fisheries Subsidies, adopted at the 12th Ministerial Conference. The WTO Agreement, a first towards targeting a Sustainable Development Goal (SDG) through a multilateral agreement, seeks to address “illegal, unreported and unregulated” fishing. This post seeks to present the impact of the WTO Agreement on the fisheries rights of LLSs envisaged under UNCLOS. It shall first elaborate on the existing fisheries rights of LLSs, traced through the UNCLOS negotiations to their incorporation by regional agreements. Secondly, it shall present the WTO Agreement and argue that the WTO Agreement, by failing to make provisions pertaining to LLSs, will have a differential adverse impact on them. The paper shall conclude with the observation that the rights negotiated and envisaged by the UNCLOS are undermined by subsequent agreements surrounding fisheries and fail to uphold the fisheries interests of landlocked states.
FISHERIES RIGHTS OF LLSs UNDER THE UNCLOS
Fisheries Interests, a term not defined in the UNCLOS, generally refer to harvesting, processing and rearing marine living resources. Fisheries interests of any state are historically crucial economic and human developmental interests. As landlocked states also have nutritional and population concerns, similar to coastal states, they also seek to utilize fisheries resources. In their interest, the UNCLOS III lays out certain rights in harnessing their fisheries interests.
Negotiating Histories of Fisheries Interests
With the formation of sovereign nation-states, natural disadvantages faced by land-locked and other geographically impacted states were accentuated. Coastal states sought to protect their exclusive rights in the Exclusive Economic Zone (EEZ) by virtue of sovereignty and “natural prolongation of land territory.” The 1958 Geneva Conference on the Law of the Sea had failed to bring agreement on maritime limits of territorial seas and left such determination to unilateral means, leading to various clashes between coastal states. States like the US, Argentina, Saudi Arabia, and Venezuela, amongst many others, began unilaterally extending their sovereign claims, departing from the traditional 3-mile limit, primarily towards the exploitation of marine resources. Non-coastal states were, consequently, economically disadvantaged due to limitations on the transit of persons, trade and access to marine living and non-living resources. Towards setting a “just and equitable international economic order”, delimitation was sought under the Law of the Sea Conventions, which convened in 1973 and concluded with the UNCLOS III in 1982. The LLGDSs formed a unified interest group and were able to negotiate forms of access to the resources of EEZs along with the High Seas.
Initially, limited considerations were made to acknowledge only developing countries’ geographical disadvantages and their impact. The other LLGDSs sought to propose a broader definition to ensure the inclusion of their interests. Though the LLGDSs within themselves had differing interests, such as the ocean exploration interests of developed states and access to transit and fisheries for the developing ones, they allied together in furtherance of larger economic interests. The LLGDSs, led by countries like Austria, Netherlands and Singapore, reached a membership of 54 countries and, thus, utilised their numerical strength to negotiate certain access and sharing rights in consideration of the acceptance of the concept of EEZs, advanced by major CSs. Rights concerning access to marine living resources were incorporated in Article 62(3) and Article 69—obligating CSs to take steps towards estimating determinable catch and giving access to LLSs regarding the surplus capacity.
The two broad rights of fisheries—EEZs and High Seas
Fisheries rights of LLSs as per the Third UNCLOS can be divided into two broad spectra of access rights—access in the EEZs and access to the High Seas. The former are rights that an LLS would have in an arrangement with a coastal state, whereas the latter refers to the freedom of fishing in the open high seas, which includes both coastal and land-locked states. Article 62(2) of the UNCLOS requires the determination of fishing capacity in its EEZ by a coastal state and, on its inability to meet the allowable capacity, provides for arrangements for LLGDS to access the surplus, with special regard to developing states. Article 69, referring to the rights of LLSs, states that LLSs have an equitable participation right in the surplus resources of CSs and that such participation may be exercised by formulating bilateral or regional agreements. Article 87(1)(e) forms a part of general provisions concerning the High Seas and imagines freedom of fishing in the high seas for LLSs. Access to the High Seas is usually obtained through transit agreements between landlocked states and their coastal neighbours, which serve multiple purposes like trade, transit of people, and fishing.
A manifestation of the exercise of rights provided in Art. 62 is visible with the South African Development Community (SADC) Protocol, which recognises UNCLOS and the “special position of landlocked Member States” and provides a framework for the implementation of Article 69 of the UNCLOS through “access agreements”. Though, at present, no SADC coastal member has granted fisheries access in its EEZ to a non-coastal member, the SADC framework is yet a significant step. As Telesetsky notes, there has been a lack of attention towards Art. 87 of UNCLOS, which provides for freedom in the High Sea for the LLSs. Countries like India and China have sought to make efforts towards aiding the fisheries rights of landlocked neighbours, mostly through multilateral infrastructural ports like the Chabahar Port Project and the Belt and Road Initiative (BRI), respectively. However even post-UNCLOS III, the ‘rights’ provided for LLSs are largely dependent on bilateral or regional agreements.
THE WTO AGREEMENT ON FISHERIES SUBSIDIES
The WTO Agreement on Fisheries Subsidies, which seeks to leverage and limit the marine trade interests of countries to achieve sustainability goals, was adopted on 17 June 2022 at the 12th Ministerial Conference. Currently accepted by 15 member states and the European Union (EU), the Agreement requires two-thirds of member states’ acceptance to come into force. It prohibits subsidies that contribute to illegal, unreported and unregulated (hereinafter, ‘IUU’) fishing. To present its impact on LLSs, it is essential to analyse how and by whom IUU fishing is determined.
Curbing IUU Fishing under the WTO Agreement
According to Article 3 of the Agreement, the determination of whether a vessel or operator is engaging in IUU fishing would be done by coastal members in their jurisdiction, flag states for their vessels or a Regional Fisheries Management Organisation (hereinafter, RFMOs) in areas under its competence. Territorial seas and EEZs would be governed by coastal members or a flag state member as the arrangement would be, and the high seas would be overseen by the flag state members as well as the RFMOs. IUU fishing is determined by Footnote 4 of the WTO Agreement, referring to the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA). Total allowable quantity “in a manner that is not consistent with or contravenes the conservation and management measures of that organization”, referring to RFMOs, provides RFMOs with the power to determine management measures.
These measures involve tools like catch limits or quotas, technical measures such as tools and instruments employed, spatial or temporal restrictions and surveillance measures. RFMOs routinely notify such catch quantity quotas and limits. Examples include the North Atlantic Fisheries Organisation (NAFO) providing Total Allowable Catch (TAC) limits concerning various varieties of fish as well as allowed tools and instruments, as well as the Indian Ocean Tuna Commission (IOTC), introducing “clear catch limits” for the countries fishing in the area. Hence, unregulated fishing impacting the allowable quantity would be determined by the coastal states, flag states or the RFMOs.
Impact of such determination of IUU fishing on LLSs
The determinations by coastal states, flag states and, importantly, the RFMOs regarding the allowable quantity of fishing are wholly unaccompanied by any special provisions for the
LLSs. Owing to their conservation commitments, the coastal states have goals towards sustainable responsibility. This is determined by the states themselves, along with fisheries management agreements amongst coastal states that do not give enough consideration to the landlocked states. This poses a twofold problem for LLSs— since, firstly, their access to fishing in EEZs is itself dependent upon an agreement or arrangement with a coastal state. Secondly, now that that coastal state is required to reduce fisheries subsidies to a certain quantity, it wouldn’t be obliged to offer any part of the reduced share in favour of a landlocked state. The WTO Agreement, by failing to incorporate an express obligation to safeguard the interests of landlocked states, worsens the rights LLSs were granted under UNCLOS.
With regards to the broader right of pursuing fisheries interests in the ‘free’ high seas, the WTO Agreement has weakened the UNCLOS’ objectives. For the Agreement, the determination of IUU fishing on the high seas is to be done by the RFMOs. A brief overview of the 17 existing RFMO/As (Annexure 1) will lead to the observation that no considerations are made in favour of LLSs. A reason for the same can be the absence of a strong interest group force, as most landlocked states, if any, are minority members in regional arrangements like RFMOs. As highlighted earlier, the presence of numerically unified and strong groups of LLGDSs played a significant role in ensuring the incorporation of their rights under the UNCLOS. Since RFMOs are usually composed of coastal states, no representation is made in the interests of LLSs, and as a result, the determinations of RFMOs in terms of total allowable catch to prevent IUU fishing would impact landlocked states, too. Since the RFMO/As, while allocating quota shares, does not take into account the fishery participation of LLSs. Effectively, this renders their engagement non-compliant with the management measures of RFMOs. Thus, any subsidies to these states could be considered illegal, unreported and unregulated.
A recent instance affirms the claim in support of neglect of LLSs. The United Kingdom and Norway met as members of NEAFC to agree upon quota share arrangements and, while agreeing on quota shares, reaffirmed the members’ commitment to engaging in consultations between ‘coastal states’ for sustainable management. As Telesetsky highlights, there is a distinction between “privilege rights” and “power rights”—LLSs enjoy the former. She proposes that LLSs should have a “power right” over resources in the High Seas so that RFMOs also allocate a certain share of the quota to LLSs.
CONCLUSION
Coastal states have long enjoyed natural rights over fishing and accessing marine resources. It was realised that landlocked and geographically disadvantaged states, forming a major chunk comprising 54 countries, were also entitled to a share in global marine resource sharing. The UNCLOS was convened to ensure more equitable access and distribution in the wake of economic growth which brought in access rights for LLGDSs. Broadly summed up, these rights include fisheries rights in the Exclusive Economic Zones of coastal states as well as the freedom to fish in the open High Seas. However, unfortunately, the enforcement of these rights through agreements has remained uncommon. The WTO Fisheries Agreement seeks to prohibit subsidies to vessels which would come under the category of engaging in IUU fishing. This post argues that the WTO Agreement, by relying on RFMOs and coastal states to determine an allowable capacity, without including sufficient express safeguards for the LLSs, leads to an adverse impact on the rights of LLSs. Since LLSs are a distributed group across the globe, RFMOs should take their interests into account while determining limits for IUU fishing. Ensuring such special safeguards would better uphold the goals envisaged under the UNCLOS framework.
Uravi Pania is a student at NLSIU, Bangalore.
Image Credits: WTO
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