Transcript recent developments in ocean law and policy

RECENT DEVELOPMENTS IN
OCEAN LAW AND POLICY
ABA ANNUAL MEETING
SAN FRANCISCO
August 11, 2007
INTERNATIONAL LAW OFFICES OF SAN DIEGO
PETER H. FLOURNOY
www.international-law-offices.com
LANGUAGE
• FISHERIES – ANADROMOUS, CATADROMOUS,
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PELAGIC, GROUNDFISH, COASTAL PELAGIC,
HIGHLY MIGRATORY SPECIES, STRADDLING
STOCKS, REEF FISH, INVERTEBRATES
GEAR TYPES – TRAWL, PURSE SEINE, LONG
LINE, POLE AND LINE (HOOK AND LINE),
TROLL, DRIFT NET, FISH TRAP, CYANIDE,
DYNAMITE
ORGANIZATIONS – COUNCILS, RFMOs
FISHERY MANAGEMENT COUNCILS
Magnuson- Stevens Conservation and
Management Act of 1976, as amended
through December of 2006.
– 8 Fishery Management Councils
• New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf,
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Pacific, North Pacific, Western Pacific
Council Members – Federal, State, Tribal, Public
Advisory Panels – often by species/gear type
Scientific and Statistical Committee
FMPs – Fishery Management Plans
FISHERY MANAGEMENT COUNCILS
• Types of Fisheries “managed”
– Anadromous – Salmon – bilateral and
multilateral
– Coastal Pelagic – Squid – unilateral and
access agreements GIFAs
– “Shared” or Straddling Stocks – Pacific
Whiting – bilateral, Halibut -- multilateral
– Highly Migratory Species – Tuna and
Swordfish - multilateral
CONFLICTS BETWEEN COUNCILS,
MAGNUSON ACT REQUIREMENTS,
AND RFMOs
• History of HMS Jurisdiction and Magnuson Act
Requirements
– When MSAct passed in 1976 to set up the equivalent
of EEZs U.S. did not recognize any country’s
jurisdiction over HMS in their zones
– Provision for State Department slot on Councils was
to advise on GIFAs
– 1992 Recognition of Other Countries’ Jurisdiction With
Critical Caveat that HMS Must be Managed
Multilaterally by RFMOs
CONFLICTS BETWEEN COUNCILS,
MAGNUSON ACT REQUIREMENTS,
AND RFMOs
• Amendment to Sections 303(a) and
302(h) requiring Councils to Set “annual
catch limits” for all species included in
their FMPs including HMS
• NOAA-NMFS Guidance States Discards and
“all” fishing mortality Including Rec and
Sport must Be included – Lack of Data
CONFLICTS BETWEEN COUNCILS,
MAGNUSON ACT REQUIREMENTS,
AND RFMOs
• “overfishing occurring”
• “overfished”
• Prior Interpretation – Council Had to Do an
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Amendment to the FMP – 2 year process
Current Interpretation After Amendment to
Section 304 by adding 304 (i) (or (j)) is “
develop recommendations for domestic
regulations to address the relative impact of
fishing vessels of the US on the stock”
REGIONAL FISHERIES
MANAGEMENT ORGANIZATIONS
• North Pacific Anadromous Fish
Commission
• International Pacific Halibut Commission
• Antarctic Living Marine Resources
• Tuna (HMS) RFMOs
TUNA (HMS) RFMOs
• IATTC -Inter-American Tropical Tuna Commission
• IOTC – Indian Ocean Tuna Commission
• ICCAT – International Commission for the
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Conservation of Atlantic Tunas
WCPFC – Western and Central Pacific Fisheries
Commission
CCSBT – Commission for the Conservation of
Southern Blue fin Tuna
KOBE, JAPAN
January 22-26, 2007
• Share and Co-ordinate Data And Stock Assessments
• Work Collectively to End IUU (Illegal, Unregulated, Unreported)
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Fishing
Develop Procedures for Allocating Fishing Opportunities
Capacity Controls
Establish Decision Making Processes
Promotion of Compliance With RFMO Resolutions
Development of Monitoring, Control, and Surveillance (MCS)
Measures
Monitor Catches from Vessels to Market
RFMO Performance Review
Ecosystem Approach to Fisheries Management
Coordination of meetings
1982 U.N. LAW OF THE SEA
CONVENTION
• In Force Since November 16, 1994
• Ratified by 155 Countries
• Not Ratified By the United States
• Priority of Bush Administration Since The Beginning
• Passed Unanimously By Senate Foreign Relations Committee
In 2006
• Better Chance With Absence of Amb. Kilpatrick
and Senator Helms
• Prognosis Not Good
U.N. HIGHLY MIGRATORY SPECIES
AND STRADDLING FISH STOCKS
AGREEMENT
• In Force Since 11 December 2001
• Ratified by 67 Countries (UNCLOS – 155)
• Ratified by United States
• Not Ratified by Japan, Korea, China
• July 2006 Review Conference
WESTERN AND CENTRAL PACIFIC
FISHERIES CONVENTION
• Enabling Legislation – Part of MS Act
Amendments
• Five U.S. Commissioners
– U.S. “industry”
– WPFMC
– PFMC
– Federal – PIRO Director
– Public Interest = ENGO?
WCPFC
– Advisory Committee
• Guam, American Samoa, Northern Marianas
• Payment of out of pocket expenses
• Attendance at U.S. Commissioner’s
Meetings
• Attendance at Government to Government
Meetings (?)
• Administrative Procedures Act does not
apply
ANTIGUA CONVENTION (Update of
IATTC)
• Ratified by U.S.
• Ratified by 8 Countries
– Belize, Korea, El Salvador, France, Mexico, Nicaragua,
Panama, E.U.
• Entry Into Force Likely by 2008
• Implementing Legislation Languishes
• Current Members of IATTC
– Costa Rica, France, Ecuador, El Salvador, Guatemala,
Japan, Korea, Mexico, Nicaragua, Panama, Peru,
Spain, U.S., Venezuela, Vanuatu
NEW AMENDMENT TO PUNISH IUU
FISHING
• Definition by NMFS – overly broad
• NMFS Guidance – check out the web-sites
• NMFS Presentation
• Recent Actions (Bud Walsh covered)
INTERNATIONAL AGREEMENTS CONCERNING
LIVING MARINE
RESOURCES OF INTEREST TO NOAA FISHERIES
• ATLANTIC OCEAN
• International Convention for the Conservation of Atlantic
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Tunas (Basic Instrument for the International
Commission for the Conservation of Atlantic Tunas -ICCAT)
Convention for the Conservation of Salmon in the North
Atlantic Ocean (Basic Instrument for the North
Atlantic Salmon Conservation Organization -- NASCO)
Convention on Future Multilateral Cooperation in the
Northwest Atlantic Fisheries (Basic Instrument for
the Northwest Atlantic Fisheries Organization -- NAFO)
Cont.
• PACIFIC OCEAN
• Agreement on the International Dolphin Conservation Program (AIDCP)
• Convention for the Establishment of an Inter-American Tropical Tuna
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Commission (IATTC)
Convention for the Preservation of the Halibut Fishery of the Northern
Pacific Ocean and Bering Sea (Basic
Instrument for the International Pacific Halibut Commission -- IPHC)
Convention for the Conservation of Anadromous Stocks in the North Pacific
Ocean (Basic Instrument for
the North Pacific Anadromous Fish Commission – NPAFC)
Treaty Between the Government of the United States of America and the
Government of Canada
Concerning Pacific Salmon (Basic Instrument for the Pacific Salmon
Commission – PSC)
PACIFIC (CONT.)
• Convention on the Conservation and Management of Pollock
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Resources in the Central Bering Sea
Treaty Between the Government of the United States of America
and the Government of Canada on Pacific
Coast Albacore Tuna Vessels and Port Privileges
Treaty on Fisheries Between the Governments of Certain Pacific
Island States and the Government of the
United States of America (South Pacific Tuna Treaty -- SPTT)
Multilateral High-level Conference on the Conservation and
Management of Highly Migratory Fish Stocks
in the Western and Central Pacific (Western and Central Pacific
Fisheries Convention-WCPFC)
SOUTHERN OCEAN
• Convention for the Conservation of
Antarctic Marine Living Resources (Basic
Instrument for the
• Commission for the Conservation of
Antarctic Marine Living Resources –
CCAMLR)
• Convention for the Conservation of
Antarctic Seals (CCAS)
AND ………………………………
• WESTERN HEMISPHERE
• Inter-American Convention (IAC) for the Protection and
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Conservation of Sea Turtles
GREAT LAKES
Convention on Great Lakes Fisheries Between the United States and
Canada (Basic Instrument for the
Great Lakes Fishery Commission – GLFC)
GLOBAL
Agreement on the Conservation of Albatrosses and Petrels (ACAP)
Convention on Biological Diversity (CBD)
Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES)
International Whaling Commission (IWC)
USEFUL WEBSITES
• U.S. Mission to the U.N.
http://www.usunnewyork.usmission.gov/index.htm
• National Marine Fisheries Service
http://www.nmfs.noaa.gov/
• State Department Telephone Directory
http://www.foia.state.gov/alphalisting
• NOAA-NMFS Magnuson Act Amendments
http://wwwnmfs.noaa.gov/msa2007/
• U.S. Commission on Ocean Policy
http://www.oceancommission.gov/
• NOAA Office of International Affairs
http://www.nmfs.noaa.gov/ia/index.htm
QUESTIONS ?
• What happened to 90% of the big fish?
• Are we, or sharks, at the top of the food
chain?
• Why is NMFS worse than the IRS?
• Where have all the sea turtles gone?