Law

This chapter provides an overview of the international legal framework governing the conservation, management and utilization of tuna resources.  The international legal framework governing the conservation, management and utilization of tuna resources attempts to respond to the biological characteristics of the tuna species.  This chapter is therefore divided into three specific parts.  First the unique biological characteristics of the tuna species discussed in this thesis will be reviewed.  This is necessary for understanding the nature and context of the international legal framework for governing the management, conservation and utilization of tuna resources. 
The second part of this chapter analyses the measures adopted pursuant to the  Law of the Sea Convention 1982 (hereinafter LOSC) and the UN Fish Stocks Agreement 1995 (hereinafter UNFSA) which are required to be implemented by contracting states for the conservation and management of tuna resources.  A brief summary of the rights of coastal States under the LOSC will be provided. Additionally, the general obligations relative to the conservation, management and optimum utilization of fisheries resources applicable to tuna within the relevant EEZs  are analysed.  Essentially, this part of the chapter analyses the provisions for the management and conservation of tuna resources under the LOSC and the UNFSA and underscores contracting States obligation to cooperate.  The framework through which international cooperation can be achieved will be elaborated on and the role of RFMOs in facilitating such cooperation among contracting States for the purpose of meeting their respective obligations to conserve and mange tuna stocks will be highlighted.
The third and final part of this chapter focuses on Kenya.  A set of criteria for the assessment of the adequacy of Kenyas legal and policy framework for the management of tuna resources within its jurisdiction is established.  The criteria are drawn from the material analyzed and presented in the preceding two sections of this chapter.

2.2 Biological Characteristics of Tuna
Highly migratory fish are listed in Annex 1 to the LOSC, and included on the list are tuna and tuna like species.  Species listed as highly migratory are so listed because they travel appreciable distances in the areas of the ocean.  The result is, the tuna species is entirely mobile and may during their lifetime enter and exit the waters of a number of jurisdictions.
Tuna is described as fast swimming top predator species characterized by high metabolic requirements which must be supported by ready access to rich food sources. The migratory conduct of tuna correlates with ocean properties that establish a connection between an appropriate material habitat (such as satisfactory temperature and oxygen) and the appropriate food supplies.  The fact that tuna can often eat up to about 15  of their body weight each day means that tuna are persistently travelling as they search for the necessary food.  Moreover, tuna consumes a great deal of energy which emanates from ocean movements and properties that create the amalgamation of suitable prey which tuna are required to locate or else they die.
The biological characteristics and the corresponding natural needs of the tuna therefore make the tuna species a highly migratory marine species.  This necessarily engages the necessity for several states to have jurisdiction over tuna as they mobilize between the coastal areas of different states.  Tuna species have a variety of historical patterns as well that necessitate effective international cooperation in management and conservation of these highly migratory species. For instance the skipjack tuna, although quite fertile is associated with a relatively short lifespan and are widely spread throughout tropical and temperate regions.  The blue fin tuna has a longer lifespan, but reproduces at a late stage in its life.  The remaining tuna species have life patterns that fall somewhere between that of the blue fin and the skipjack tuna.
These physical and biological characteristics of tuna, particularly its highly mobile state means that it is difficult for one state to claim jurisdiction over a specific school of tunas and will invariably require cooperation with other states in the region for the effective management and cooperation of the tuna species.  For instance, if a single state was attempting to conserve a tuna stock located within its waters or attempted to govern its own states fishing activities in a manner calculated to sustain the longevity of the tuna stock, other states will have the opportunity to reap the benefits as what is described as free riders.
    On a commercial level, fishing for tropical yellow fin, big eye and skipjack tuna has evolved rather quickly in the Western and Central Pacific as well as in the Indian Ocean since the middle of the 1980s.  The expansion is widely due to participation by DWFNs that use either pursing or long line methods.  In the Indian Ocean in particular, tuna are vulnerable to seasonal migratory shifts relative to tropical tuna and as a result surface fishing material. 
    Ultimately, understanding the migratory nature of tuna and the biological and environmental factors that dictate its migratory patterns are important for the management and conservation of the tuna stock.  The highly migratory nature of the tuna stock means that it is not under the jurisdiction of any one particular state and is under the common jurisdiction of several states, particularly the EEZs.  As a result it is entirely important that states engage in close coordination and cooperation for the effective conservation and management of the tuna stock.  This will necessarily involve cooperation with international organizations on a number of fronts.  For example the scientific data necessary for predicting the abundance, location and access of tuna requires the placement of and collection of data that could involve several actors falling under the jurisdiction of more than one state. As noted, both the ecosystem and economic concerns depend on the accuracy of the information obtained and distributed.  It is against this complex background that the legal framework for the management and conservation of tuna is formulated.

2.3 Legal Framework for Managing Tuna

   
    The international management of fisheries is a relatively new concept and ultimately challenges Hugo Grotius concept of the freedom of the seas which had previously influenced international law of the high seas. Dutchman Grotius denied that national authority could reign over the high seas aside from a confined coastal belt associated with coastal States. Grotius 16th century freedom of the seas concept envisioned a wider free for all seas and eventually evolved into customary international law and even today it remains a significant part of international fisheries management.
The international management of fisheries is a process for the management of fisheries based on decisions made by authorities in at least two states or by an international body. The origins of international sea laws date back to 1930.  The UNs International Law Commission (ILC) whose first members were appointed in 1948 prepared a draft on the high seas and the territorial sea. Its rapporteur had been involved in the preparation of a similar report under the League of Nations in 1930.
    The draft was modeled after the Hague articles and by 1956 the UNs General Assembly requested a report that dealt with all elements of law relating to the sea of a contemporary nature.  These efforts resulted in the UNs first Conference on the Law of the Sea which took place in Geneva in 1958 and was referred to as UNCLOS 1.  Approximately 86 states participated in the conference and four conventions were adopted.  They were the Convention on Territorial Sea and Contiguous Zone the Convention on the High Seas the Convention on the Continental Shelf and the Convention on Fishing and Conservation of the Living Resources of the High Seas. 
    The resulting document was the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas (hereinafter UNCLOS 1). Article 1(2) of the UNCLOS I provided that all States were responsible for adopting or cooperating with other States in adopting the measures necessary for their respective nationals with respect to conserving the high seas living resources. Article 2 of the UNCLOS I defined conservation of the high seas living resources as
the aggregate of the measures rendering possible optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products.
    The rationale for the conservation of the living resources of the high seas was founded on the growing reality of over-exploitation.  UNCLOS I conceded as much by stating that modern technology had developed to such an extent that man was now in a position to exploit the seas living resources and was indeed under increased pressure to do so for the purpose of feeding an ever increasing global population.
However, UNCLOS I was not able to resolve what should amount to the territorial sea.  As a result as second conference, UNCLOS II met in 1960 to determine the territorial issue as well as the issue of fishing constraints.  However, this conference failed to obtain enough votes which would have adopted a consensus that the territorial sea was comprised of six miles and another six miles of fishing zone.
    Resolution of the territorial issue would have to wait for UNCLOS III which originated out the Sea Bed Committee which was established by the UNs General Assembly in 1967.  Its purpose was the examination of the issue of the sea bed falling outside of a states jurisdiction.  The 1958 Convention had failed to address this issue as well.  The fact is a majority of states preferred to keep a significant area of the sea wide as it was felt to be the common heritage of mankind. However, changing times and the risk of exploitation drew attention to the risk of under and overexploitation of specific marine life, including tuna.  It was also acknowledged that it would be entirely important to widen the territorial jurisdiction as a method for effectively managing and conserving marine life.  Therefore in 1970 the UNs General Assembly passed Resolution 2570 which set forth the objective of preparing a more comprehensive Convention on the Law of the Sea.
    A subsequent Resolution, General Assembly Resolution 2749, 1970 acknowledged that the problems of ocean space are closely interrelated and need to be considered as a whole,  Resolution 2749 also noted that politics, economics, science and technology had evolved over the last ten years and have drawn increasing attention to the necessity for a legal regime that called for intimate international cooperation.
    The Conferences first session convened in 1973 and three committees were appointed. The committees were comprised of a unit that would cover a legal regime for the deep sea bed, a second committee would cover the territorial sea and adjourning zones, the continental shelf, EEZ, the high seas, as well as fishing and conservation of living resources comprising the high seas, straits and archipelagic State.  A third Committee would deal with preserving the integrity of the environment and research science.
    150 States participated in the negotiations which were more of a political nature rather than legal.  The issues had been under the prevue of the UNs First (Political and Security) rather than its Sixth (Legal) Committee.  Each of the participating States came with their own interests and agendas.  Eventually some teams were formed such as the Group of 77 which came from among the developing nations and teams from Western capitalist states and another team comprised of Europes socialist regimes.  The Group of 77 prevailed in the end, leaving its imprint clearly on the Convention text.  Significant input came from a number of other interest groups such as those from archipelagos, straits and those characterized as coastal and maritime nations.
    Ultimately, the final document, LOSC which was adopted in 1982 would be formalized without a unanimous vote.  Even so, LOSC revolutionized the legal regime relative to fisheries.  Previously, the international framework provided greater access to the open seas for fishers.  The LOSC narrowed the open seas by creating the EEZs which expanded state coastlines outward to 200 miles.
    Unlike UNCLOS I, LOSC recognized that tuna would fall under the coastal jurisdiction of states while in the EEZ.  LOSC also recognized that those fishing for tuna in any given region would cooperate with other states and organizations to ascertain the conservation of tuna in the region and the high seas as well.Even so, in practice, the LOSC proved inadequate to meet the issues it attempted to address.  Difficulties associated with overfishing and by-catches caught the attention of the UNs Secretary-General.  There were also problems of unreported, unregulated and illegal fishing.  The Indian Ocean Tuna Commission (IOTC) and the Commission for Conservation of Southern Bluefin Tuna (CCSBT) were concerned about activities of non-member States in areas under their jurisdictions.
    There were a number of perceived weaknesses associated with the LOSC 1982, particularly in relation to an adequate legal regime for the conservation and management of both migratory and straddling stocks.  There were concerns about the inefficiency of the LOSC to formulate a clear framework for highly migratory and straddling fish stocks.  For instance, Articles 56 and 61 confers upon coastal states the right to regulate and control access to tunas in their respective EEZs with one caveat.  The caveat appears in Article 62 and requires that should the resources of these EEZs not be utilized to its fullest potential, the fishing vessels of other states must be granted access. However, virtually all tuna species are usually utilized to their fullest extent.  It therefore follows that Article 62 could be interpreted to permit coastal states the right to deny access to tuna stocks on the part of the fishing vessels of other states.
    Another difficulty espoused by the LOSC related to Article 116 which speaks to the states rights of exploitation of the high seas resources.  While Article 116 is read by reference to Articles 117-119 which deal with states duties relative to conservation and management of the living resources of the high seas, it is quite often interpreted to mean that new entrants may not be permitted to participate in fisheries. This interpretation is problematic for the obtaining the cooperation of all relevant states with respect to limiting access to tuna stocks.
 Therefore in 1995 the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (hereinafter the UNFSA) was executed. In short the UNFSA is intended to fill in the gaps left in LOSC and provides for system of cooperation among the
coastal and fishing states for the adoption of compatible fisheries conservation and management measures and provision on the institutionalization of such cooperative efforts through regional fisheries organizations.
    The international legal framework for the management and conservation of tuna stock has come a long way since UNCLOS 1958.  While the 1958 Convention failed to specifically make provision for the conservation and management of tuna, changing economics, technology, research science and concerns relative to the ecosystem, drew attention to the specific characteristics of tuna, the danger of over-exploitation as well as under-exploitation and its attendant problems.   The result was a plethora of international legal instruments designed to realistically provide for the effective conservation and management of tuna stocks.  The starting point was the establishment of the extended EEZ.

2.3.1 Establishment of the EEZ
The EEZ extends the coastal territory of the relevant state to a maximum of 200 miles from its baseline and confers upon the coastal State expansive rights relative to the natural resources contained within as well as other jurisdictional obligations. Churchill and Lowe explain that EEZs reflect the developing countries desire for economic development  and for obtaining increased control over the economic resources off their coasts, particularly fish stocks which were for the most part the subject of exploitation by the fishing vessels of developed countries.
In any event, the EEZ was perceived as establishing a balance between those States laying claim to a 200 mile coastal area such as Latin America and African States and States that were not particularly supportive of the idea of extending the coastal jurisdiction of States.  Accepted as a compromise of sorts, the EEZ concept gave way to its inclusion in the LOSC since it was accepted by a majority of contracting States.
    The EEZ as it came to be known represented a significant jurisdictional development with respect to fisheries on an international level.  Previously, access to fish stocks was essentially free for all outside of what was a relatively small area of territorial sea.  Access to fish became the prerogative of the nearest state, usually referred to as the coastal state.  The creation of the EEZ provided coastal state with the authorization to manage and control access to fish that where in their EEZ either for their benefit individually or in cooperation where stocks are shared among two or more states. The consequences of the EEZ scenario is that it sets up the possibility for organizational involvement in setting constraints on total catches and individual transferrable quotas.
    On another level, the creation of the EEZ meant that some countries that previously benefited from the larger free for all ocean territory, have limited access to fishing grounds.  In this regard, the creation of EEZs is tantamount to transferring wealth from distant water fishing nations to coastal states. However, the EEZ also facilitates motivation for generating wealth via the improved management of fish stocks. Regardless the creation of the EEZs means or is anticipated to mean positive consequences for EEZs with respect to economic development of the relevant coastal states, particularly those coastal states where fish stocks are entirely significant to their economies.
    The EEZ and its 200 mile zone has been promulgated by the LOSC and is set forth in Part V of the LOSC where its physical range, legal scope and the rights and obligations of EEZ states are provided for.  Article 55 of Part V of the LOSC describes an EEZ as an area beyond and adjacent to the territorial sea.      Article 57 of Part V of the LOSC provides for the physical scope and range of the EEZ.  In this regard Article 57 provides that
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
Article 56 of Part V of the LOSC sets forth the rights, duties and jurisdiction of coastal States within their respective EEZs. Section 56(1)(a) describes the sovereign rights and duties   conferred upon the coastal state of an EEZ. These sovereign entitlements are for the exploration, exploitation, conservation and management of all natural resources in the waters superjacent to the seabed and of the seabed and its subsoil together with any other activities for the economic exploitation and exploitation of the zone, which may be for such things as energy production from the relevant water, currents and wind.
Article 56(1) (b) goes on to describe the jurisdictional entitlement of the EEZ state and they include jurisdiction over the creation and utilization of artificial islands, installations and structure.  The EEZ state also has jurisdiction over the marine scientific research and jurisdiction over the protection and preservation of the marine environment.  The EEZ state also has jurisdiction over other rights and responsibilities contained in the LOSC.
The duty to cooperate with other states in the exercise of its rights, duties and jurisdiction over EEZs are exemplified by Article 56 (2) of Part V of the LOSC which reads as follows
In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provision of this Convention.
    Ultimately, the creation of the EEZ has significantly reallocated the worlds fisheries.  It has been argued that the reallocation of the worlds fisheries has resulted in a select few coastal states obtaining greater benefits at the expense of DSF states who have incurred corresponding losses.  The fact is, the EEZ is the arguably the most productively rich area offshore.  The creation of the EEZ means that the effected State owns and manages all of the resources, living and non-living within the broad expanse of coastline.
    However, the LOSC takes a different approach to highly migratory species in terms of the exclusive jurisdiction of EEZ states.  In the context of highly migratory species, LOSC  appears to modify the exclusive jurisdictional and sovereign claims that a coastal state might have.  Article 64 (1) of Part V in particular provides that
The coastal State and other States whose nationals fish in the region for the highly migratory species listed in AnnexI shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.
Clearly the inference is that EEZ states do not enjoy exclusive jurisdiction and sovereignty over highly migratory species within its coastal waters, but must cooperate with other states that fish in their respective zones.  When read together with Article s 56 and 57 of Part V of the LOSC and Articles 61, 62 and 279 of the LOSC, there is no doubt that the right to fish in the EEZ by outside state is entirely a question for the EEZ state. This would tend to suggest, that once a coastal state provides another state with the authority to fish within its EEZ, that other state shares responsibility with the EEZ state for the conservation and management of tuna which is a highly migratory species under Annex 1 of the LOSC.
    In addition to conferring upon coastal states sovereignty and jurisdiction over all living and non-living resources within their EEZs, Article 61(1) goes on to provide that coastal states have the right to ascertain the allowable catch of any living resources within their EEZ. Moreover, Article 62(2)  provides that coastal states will ascertain its own ability to harvest living resources within its EEZ. Fortifying the jurisdiction and sovereignty of the EEZ state, Article 297 (3) goes a step further to state that when a state makes determinations such as those conferred by Articles 61 and 62 which are discretionary determinations, those determinations will not be reviewed by a third party.
    The establishment of exclusive and expansive jurisdiction and sovereignty over highly migratory species such as tuna within the specific EEZs is entirely necessary.  If states were permitted to retain jurisdiction of the actual tuna rather than the EEZ and its resources, several states with competing interests would maintain jurisdiction over tuna all at once.  This is not beyond the realm of possibilities.  A number of coastal states in a Pacific Ocean dispute had erroneously taken the position that their sovereign and jurisdictional rights extended to highly migratory species even when they were within another EEZ.
    However, it is entirely obvious how this kind of confusion can arise over who has jurisdiction over highly migratory species as they cross over from one EEZ and into another with alarming speed and frequency. While Article 64 calls upon EEZ states and states whose nationals fish in the EEZ to corporate on the conservation and utilization of the migratory stock via an international organization, Article 63 recognizes that highly migratory species may be in more than one jurisdiction at a time or may be just outside of two or more jurisdictions.  In order to provide for the conservation, management and utilization of such a stock, Article 63 (1) provides that
Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.
Article 63(2) goes on to make provision for those circumstances where the same stock or stocks of associated species are in an EEZ and also in an area beyond and adjacent to the EEZ.  In such a case
The coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.
    The duty to cooperate as provided for under Articles 63 and 64 can be compromised by the exclusive jurisdiction and sovereignty claims conferred by Articles 56 and 57.  It is not inconceivable that states with EEZ rights as conferred by Articles 56 and 57 may seek to assert their exclusive rights over other states seeking to cooperate under the auspices of Articles, 61 to 64.   Complicating matters, Article 297 also prohibits review of the coastal states exercise of its LOSC discretionary powers.  It is entirely possible for the coastal state to refuse to cooperate with other states on matters relating to allowable catches in circumstances where the area is more closely monitored and used by DWF states.  After all Article 61 provides the coastal state with the authority to determine its own allowable catch for itself.  Article 297 arises to prohibit a review of the exercise of that kind of discretionary power.
    It is not unheard of for some coastal states to rarely fish in their own waters, but rather allow by virtue of a licensing system foreign states to fish in their EEZ.  In other words, the foreign states will have direct and greater knowledge of the allowable catch.  Article 62 raises a similar complexity.  Article 62 permits the coastal state to determine its own capacity to harvest its resources.  Again, if the coastal state is not utilizing its resources with the frequency and sophistication of other states in the same waters, it will not have direct or accurate knowledge of its resources.  It therefore follows that in the absence of that knowledge, the coastal state will not know whether or not it can harvest its own resources. Unfortunately, an erroneous judgment call in that regard may not be reviewed because it falls within the ambit of Article 297s prohibition of review of the exercise of the coastal states LOSCs discretionary powers.
    Another problem of cooperation under the LOSC can arise out of diverse groups within a region that covers specific EEZs.  Diversity can have disrupt cooperation as each may have different concepts and ideas about the effective management and conservation measures.  The UNFSA rightfully defers to the use of RFMOs which are more closely connected to the EEZs that fall within its prevue.  The UNFSA also attempts to ensure consistency for the purpose of facilitating cooperation in the management and conservation of living resources within EEZs.
    The UNFSA covers six significant areas which are designed to counter the problems that can arise to compromise cooperation between competing states in a specific EEZ.  Firstly, coastal States and DWF states are required to determine that any and all EEZ conservation and management measures that apply to an EEZ and the high seas are entirely consistent with one another. Secondly, the UNFSA sets out the priorities for conserving and managing both highly migratory and straddling fish stocks.  It requires caution which is to be applied to both the high seas and within the relevant EEZs. 
In other words, states are required to take a precautionary position with respect to conserving, managing and exploiting fish stock and to be particularly cautious when the information is unreliable.  This would certainly counter those instances where an EEZ state or DWF states decimate entirely unreliable information either out of the EEZ states rare use of the EEZ or the DWF states failure to disclose as a result of unreported catches or for some other altruistic purpose.
    Thirdly, the UNFSA contains a regulatory process for establishing and operating sub-regional or regional fisheries management organizations (RFMOs) which are defined  in Article 1(1) as
A cooperative mechanism established in accordance with the Convention and this Agreement by two or mare states for the purpose, inter alia, of establishing conservation and management measures in a subregion for one or more straddling fish stocks or highly migratory fish stocks.
RFMOs are required to set up management and conservation measures applicable to the high seas.  Contracting states are therefore required to join these RFMOs or to at the very least agree to adhere to the measures, otherwise they will not be permitted to fish in the applicable areas.  The idea is to ensure that diversity of management and the attendant problems of conflicting interests and concepts are minimized, if not eliminated altogether.
    Fourthly, the UNFSA specifies the duties of flag States whose vessels fish on the high seas.  These states are required to ensure that their ships comply with the regulations laid out by the applicable RMFORMFOs for the relevant fishing zone. The flag state is also required to establish laws that regulate its fishing vessels while on the high seas which should include monitoring, control and surveillance. Additionally, Article 19 provides for compliance and enforcement on the part of the flag state in relation to its fishing vessels on the high seas.
Fifthly, the UNFSA is applicable to non-flag states to the extent that it provides for enforcement of the conservation and management measures in relation to these states.  Finally the UNFSA provide for the resolution of any disputes arising out of the LOSC and the Fish Stocks Agreement.
    The duty to cooperate is exemplified by Article 7(3) of the UNFSA which dictates that contracting States  are required to make every effort to agree on compatible conservation and management measures within a reasonable period of time.  By virtue of Article 8(2) of the UNFSA state are required to consult in good faith and without delay in circumstances where there is a risk of over-exploitation or where new fishery is in the process of being established.  Consultation and cooperation should be conducted by virtue of RFMOs.  The obvious insertion of a regional third party is meant to ensure that cooperation eliminates or reduces the risk of bad faith and seeks to ensure authenticity in terms of disclosure.
    Article 7 of the UNFSA deals to a great extent with the issue of compatibility in conservation and management measures.  In this regard, Article 7 attempts to strike a fair balance between the conflicting interests between coastal States and distance water fishing States.  Article 7 therefore attempts to provide a method by which those conflicting interest can be reduced if not eliminated altogether. To this end, both coastal States and States that fish on the high seas are required to cooperate with one another by taking into consideration that any measures agreed upon safeguard against the harmful impact on the living marine resources as a whole.  Since tuna, a highly migratory fish stock is subject to the jurisdiction of both EEZs and the high seas, management and conservation of marine life in the EEZs and the high seas under the current international legal framework is very important.
2.3.2 Management of Tuna on the High Seas
    Part V of the LOSC 1982 specifically covers national jurisdictions inclusive of EEZs.  However, there is a residual duty to manage and conserve the fisheries of the high seas which can also be the subject of overfishing and excessive exploitation.  This is because highly migratory fish stocks are just as vulnerable to exploitation in the high seas as they are to EEZs.   Since tuna is a highly migratory fish stock, its exploitation in both the high seas and the EEZs fall under the law relative to highly migratory fish stocks. The UNFSA turns attention to these problems associated with highly migratory fish in the high seas.
    Fontaubert and Lutchman explain that the UNFSA shifts the high seas regime from one of relative laissez-faire to one in which states must collaborate through regional fisheries management organizations and arrangements. The UNFSA therefore creates a more complex legal regime where exclusive jurisdiction of any one state is shared by another state.  In other words, sea changes corresponds with jurisdiction.
    The UNFSA was implemented for the specific purpose of dealing with straddling fish stock and highly migratory fish stock.  Therefore species that do not appear in Annex I of the LOSC will not fall under the UNFSA.  By contrast, all stock within an EEZ are under the jurisdiction of the coastal state and a majority of the stock on the high seas have a great degree of likelihood to be either highly migratory or straddling or both.   
    The UNFSA established an elaborate legal regime for the enforcement relative to highly migratory and straddling fish stock in three specific phases.  To begin with, enforcement may only occur through infractions against the conservation and management rules set forth by the applicable RFMO which in turn is achieved via cooperation among states sharing a common interest in the fishery.
    As previously stated, Article 8 goes on to ensure that flag state take the requisite steps to regulate and monitor their fishing vessels on the high seas. Article 19 makes provision for enforcement and compliance on the part of the flag state and provides as follows
A state shall ensure compliance by vessels flying its flag with subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks.
Compliance and enforcement processes as contained in Article 19 are rather simple.  They require the prompt and immediate investigation of suspected infractions, the immediate reporting to the state claiming the infraction and to the applicable RFMO, referral of the case should the evidence warrant it to the proper authorities, appropriate sanctions and in an appropriate case suspension of the relevant high seas fishing license.
    Flag states may anticipate assistance from other states.  By virtue of Article 20 which deals with international cooperation, the flag state is at liberty to request help from any other state whose cooperation may be helpful.  The flag state may also conduct its investigations in conjunction with other states or with the applicable RFMO.   The flag state may also get evidence from other states for the purpose of ensuring that any prosecution in successful.  The flag state shall also cooperate with a coastal state in the event it is suspected that one of the flag states fishing vessels on the high seas without the appropriate authorization.
    Article 20 also requires international cooperation by requiring that sates that subscribe to a RFMO are at liberty to intervene to stop vessels that have conducted activities that are contrary to the measures adopted by the RFMO. Intervention amounts to stopping the vessel fishing on the high seas in the relevant region until such time as the flag state takes the necessary action.
    RMFOs are authorized as follows
In any high seas area covered by a RMFO or arrangement, a State Party which is a member of such organization or a participant in such arrangement may, through its duly authorized inspectors board and inspect fishing vessels flying the flag of another State Party to this Agreement, whether or not such State Party is also a member of the organization or a participant in the arrangement.
Despite the seemingly autonomous authority conferred on the RMFO by Article 21 cited above, the Article goes on to call for cooperation.  In this regard, Article 21 provides before enforcement takes place the flat state must be notified and given three days to either take action itself or to permit the RMFO or the inspecting state to conduct the inspection.  If the inspection turns up incriminating evidence, the RMFO or the inspecting state is required to notify the flag state if the flag state refused to conduct the investigation itself, and must be permitted the opportunity to conduct the appropriate enforcement action. 
    Article 22 of the UNFSA provides for the inspection guidelines. It is essentially a compromise among RFMO states to the extent that the relevant states negotiate on measures that are suitable to them, given their diverse backgrounds.  In this regard, flag states can predict what will take place once one of their fishing vessels are boarded for an inspection.
    Article 23 relates to the rights and responsibilities of the port state as to what measures it may take to ensure that the RFMOs measures are effective.  The port state has the authority to board and inspect a vessel in its ports or immediately offshore.  The port state may also take legislative action that forbids the landing and transference of catch where is has been proven that such catch was taken in a manner inconsistent with regional or even global management and conservation measures relative to fisheries on the high seas.
    RFMOs are entirely significant for cooperation among states particularly EEZ states who share responsibilities for adjacent waters that extend into the high seas.  As of 2003 there were at least 38 RFMOs among which a great many are linked to the FAO.  Some RFMOs have complete regulatory and governing authority while other act as advisors andor consultant. RFMOs are typically specific to a particular species.  Tuna RFMOs provide information networks for sharing information shared between and by RFMOs.  Tuna RFMOs collect data, manage and monitor tuna and related resources.  There are five tuna RFMOs in operation today and they are the Commission for the Conservation of Southern Blue fin Tuna Inter-American Tropical Tuna Commission International Commission for the Conservation of Atlantic Tunas Indian Ocean Tuna Commission and Western and Central Pacific Fisheries Commission.
    Regulatory RFMOs make decisions that are binding on relevant states and have the responsibility for establishing and setting forth management and conservation steps.  These steps would necessarily include setting quotas as well as the total allowable catches, closes section areas and the determination of fishing instruments.  Even so, compliance and enforcement continue to be problems for  RMFOs.  These difficulties arise out of the fact that the management of resources regarded as common property has a propensity for creating tensions not only within a state, but between adjourning states and also between coastal and DWF states.
    The conflict of interests and the tensions between coastal and DWF states are thought to be cushioned by the intermediary role of the RFMO whether in a regulatory or advisory role.  In either case the measures to be applied to both the EEZ and the high seas are contained in Article 5.  The measures to be adopted which will be advised or drafted by the RFMO are required to include measures for securing long-term sustainability of the relevant fish stocks and to ensure its production is bountiful.
    The measures adopted should also be compiled from scientific information of the highest available level and must be calculated to either sustain stock levels or to restore it. The measures should take the precautionary position and take into consideration the consequences for other activities relative to the stock and the ecosystem. Likewise, adopted measures should also take account of the consequences for other related marine life with the objective of sustaining in circumstances where their continued existence is in danger of being gravely altered. 
    Other recommended measures include the duty to ensure minimal consequences for the fishing via pollution, waste, discards and by-catch by virtue of the use of safe and technologically appropriate fishing tools.   Marine biodiversity should also be protected and overfishing should be prevented if not eliminated altogether.  The measures should also be based on accurate data and should be implemented and enforced effectively.  It is obvious that when RFMOs, which are intergovernmental organizations get together with the relevant states to negotiate the appropriate measures cooperation of the highest standard is required.  This is particularly so with regard to gathering scientifically sound information for setting the total allowable catch and ensuring compliance and enforcement.  The duty to cooperate is discussed in greater detail below.


2.3.3 Duty to Cooperate- States have a duty to cooperate for the conservation and management of tuna stocks

The concept of the duty to cooperate within the text of LOSC 1982 is multilayered in that it is intricately tied to the duty to negotiate and the duty not to discriminate.  This duty must be placed in the context of the duties and rights of the coastal state.  In this regard, the coastal state is responsible for conserving and utilizing the living resources in its EEZ, promoting its best utilization and at the same time determine the total allowable catch which is the most fish that can be landed in its EEZ.  Although, these rights and obligations appear to be entirely exclusive, they are subject to onerous conditions that may only be achieved via cooperation with other states and RFMOs.
    The most significant duty is the duty to cooperate under both the LOSC and the UNFSA.  Under the LOSC, cooperation means the creation of sub-regional or regional organizations for managing and conserving fisheries in appropriate cases. Under the UNFSA the duty to cooperate requires not only an obligation to create RFMOs, but also that unless RFMO members or non-members agree to the management and conservation measures set by the RFMOs they will not be able to fish in the applicable region. The concept of the duty to cooperate under the international legal framework for the conservation and management of tuna has now raised the question of whether or not the duty is now a part of customary international law.  The inference is that if a member or non-member does not agree to cooperate, there cannot be a duty to cooperate.  However, the proviso that unless there is an agreement to cooperate, there can be no fishing in the region, is highly suggestive of encompassing binding law that applies to all members of the international community.
    The duty to cooperate is clearly encompassed by Articles 63, 64 and 117-119 of the LOSC as well as Article 8 of the UNFSA. Article 63 as discussed previously provides that when stock or those that are related are in the EEZs of at least two coastal States, each of the states shall agree either directly or via regional or subregional bodies on the appropriate measures for ensuring the conservation and development of such stocks. Likewise, where a similar situation arises relative to stock or related stock in a EEZ and an area beyond and adjacent to the zone the coastal states together with DFW states fishing in that adjacent waters will take cooperate in the same way delineated in Article 63(1).
Article 63 therefore calls for a duty to cooperate with respect to the management of fish stocks in the regions described.  However, the provision is short on guidance and customary international law provides even less assistance.  It therefore follows that cooperation is primarily a process of negotiation between the relevant states. Article 64 of LOSC is not clearly.  It speaks directly to the duty to cooperate with respect to highly migratory fish of which the tuna species forms a part.  Cooperation under Article 64 requires both coastal states and states whose citizens fish in the EEZ for the highly migratory fish to cooperate either directly or via international bodies for the conservation and optimum utilization of the species both within and beyond the EEZ.
    Section 2, Articles 116 to 119 speak specifically to conservation and management of the living resources of the high seas.  Article 116 begins by conferring upon nationals of all states the right to fish on the high school pursuant to their corresponding states treaty obligations, the rights and duties as well as the interests of coastal States  as set forth in Articles 63 (2) and 64-67 and Section 2 of LOSC.
    Article 117 of Section 2 provides that States are under a duty to implement measures for the conservation of the living resources of the high seas relative to their respective nationals. In this regard, all States are required to cooperate with other states in implementing those measures.  Article 118 mandates that states are required to cooperate with one another in the conservation and management of living resources in the high seas.  Moreover, when nationals exploit living creatures in the same area their corresponding States shall engage in negotiations for the purpose of taking the measures necessary for the conservation of the living resource concerned. In order to do so, States shall co-operate to establish subregional or regional fisheries organizations.
Article 119 provides that for the purpose of stabling the allowable catch as well as other conservation measures relative to living resources in the high seas, States ware required to implement measures that are based on the best scientific evidence available to the States concerned for the maintenance or restoration of those species landed so as to produce the maximum sustainable yield. Account must be taken of the relevant environmental and economic factors, specifically the position of developing nations, fishing conduct, stock interdependence and minimum standards set by international law.  Account must also be taken of associated andor dependent species with the objective of maintaining or restoring populations of such associated or dependent species.
    Article 8 of the UNFSA 1995 builds on Articles 63(2) and 64 of the LOSC with respect to the conservation and management of highly migratory and straddling fish stock.  It also  builds on Articles 116-110 in respect of the duty to cooperate on the high seas. Article 8 (3-4) provides that all states with an interest in fisheries are at liberty to subscribe to organizations or arrangements. Moreover, in any region where there are no fishing bodies or arrangements, states are required to cooperate with a view to creating one or the other or both.
    Article 8 of the UNFSA raises the presumption that the insistence on the RFMOs as regulators turns the duty to cooperate into the arena of customary international law.  This is because, the duty to cooperate requires that both members and non-member agree to the RMFOs measures or forgo the right to fish in the regulated region. Even under LOSC and without the supplemental effect of Article 8 of the UNFSA states and their nationals entering high seas fishing were required to accept the ongoing arrangements without input.
    Articles 9 and 10 provide for more definitive cooperation. By virtue of Article 9 RFMOs are required to agree on the stock and the areas that will be encapsulated by the RFMO.  Article 10 provides an outline of the management of the collection of scientific information and accessing that information as well as the establishing and enforcement of regulatory measures.This is where Article 8 takes on its significance.  Once RFMOs establish parameters for stock and their jurisdiction and the management and collection of the scientific data, members and non-members are bound to accept these measures or may not fish in the RFMOs regulated area. 
Moreover, Article 17 of the UNFSA states that non-members who do not accept the conservation and management rules are none the less obliged to cooperate with them under the provisions of both the LOSC and the UNFSA. The duty to cooperate therefore confers upon non-members and members who do not accept the conservation and management measures of the RFMO to prevent vessels carrying their state flags fishing for straddling and highly migratory fish that are regulated by the RFMO in question. Additionally, members are required to exchange data relative to fishing activities conducted by the fishing vessels of non-members and to take steps pursuant to international law and under the UNFSA for deterring those activities that compromise the RFMOs effectiveness.
The duty to cooperate and its implications for non-contracting states raises the question of whether or not it violates the principle of pacta tertiis.  This principle maintains that treaties may only bind those who are parties to the relevant treaty and may not bind third parties. The idea is that a sovereign state may only incur legal obligations if it consents to those legal obligations.  However in the context of the LOSC and the UNFSA, member states implicitly accept the duty to cooperate under any instrument or regulatory framework arising under these instruments since they accept the LOSC and UNFSA and all of its rules of reference and instruments created under it, although member states may not subscribe to.
    Moreover, Article 18 of the UNFSA which compliments Articles 117 to 119 of the LOSC, provides an effective legal loophole for getting around the infringement of the principle of pacta tertiis.  Article 18 requires that flag states, whether RFMOs or not  take steps to maintain effective control of their vessels while fishing on the high seas.  In this regard these states are required to take the necessary legal and regulatory steps to ascertain that their fishing vessels are in compliance with regional and subregional management and conservation regulations and not to conduct activities that compromise its effectiveness.  Therefore, these non-member or member states that are not parties to the RFMO agreements have an obligation under the UNFSA.  Failure to do so is a violation of Article 18 rather than a violation of the RFMOs agreements.  In other words, the duty to cooperate is indirectly enforced upon non-member and member states who do not consent to FROMs conservation and management rules.
    The concept of the duty to cooperate within the meaning of the LOSC and the UNFSA is therefore a unique application of international law.  It encapsulates the idea that utilization,  management and conservation of highly migratory fish stocks requires multistate cooperation on a number of levels for a number of reasons.  It also assumes that all states have a common interest in the conservation and management of highly migratory fish stocks. Cooperation as reflected in the LOSC and the UNFSA is instructive in this regard.  It requires cooperation in collecting scientifically reliable information capable of predicting the availability of the highly migratory fish stocks, its location and laying out a framework for sustaining or restoring the migratory fish stocks, by catches and dependent species. Competing interests among DWF states and EEZz can compromise effective cooperation. For this reason the LOSC and the UNFSA call for the creation of intergovernmental bodies such as the RMFOs for facilitating cooperation.   Cooperation is entirely germane to the conservation and management of fisheries particularly highly migratory fish stocks which applies to tuna.

2.4 Implementation of Conservation and Management Measures for Tuna
2.4.1 Determination of the TAC
    Having already dealt with the provisions contained in UNFSA and LOSC as they relate generally to the international legal framework relative to the duty to cooperate for the conservation and management of highly migratory fish generally, this section will focus more sharply on those provisions that specifically draw attention to the duty to cooperate for the conservation and management of tuna stocks. One of the main issues for the conservation and management of tuna stocks is the total allowable catch (TAC).   The UN FAO defines the TAC as the catch allowed to be taken from a stock by a fishery during a specified period and it is frequently distributed among those having a right of access to the stock.
    Inevitably, this means that states are required to cooperate with one another by implementing a regulatory regime that limits fishing capacity by fishers within or under their respective jurisdictions.  While this may appear on its face to be a relatively simple exercise, it is not as simple to achieve when dealing with the TAC of tuna stocks. Establishing TACs involves a number of profound issues because there are a number of actors and organizations that invariably have diverse interests.  This factor together with those trying to take advantage of the fish stocks financial benefits or political benefits attempt to manipulate decisions made relative to establishing a TAC. Complicating matters, decision and policy makers may also have their own interests to serve. Additionally, information about the availability of stocks, its population variables and weak enforcement regimes compromises the adequacy and utility of managing TACs with the result that there are no guarantees with respect to the sustainable utilization of fish stocks.
 Specifically, participating states have different factors that have to be taken into account when determining the TAC relative to tuna catches.  For instance some states are coastal, others are DWFNs, some have advanced economies while others do not.  Each of the fisheries emanating from different states are also different.  Some take several tuna species, some are overexploited, some satisfactorily exploited and others are underexploited.  Moreover, different fishing techniques are used which can impact the extent of exploitation.  Longline fisheries typically target large tunas and purse-seine fisheries target smaller tunas.  Some state fishers target one species while other states target yet another.  Adding to the difficulties of setting TACs for tuna, the tuna on the high seas are traditionally regarded as consisting of an open-access resource, belonging to whomever catches them.
Therefore in determining the TAC for tuna fisheries, a number of variables are required to be taken account of.  The international legal framework for the management, conservation and utilization of fisheries attempts to highlight the duty to cooperate relative to establishing TACs.  The idea is to minimize or at least facilitate the factors that can impact establishing a viable TAC.  Therefore the duty to cooperate on conservation matters is significant in the determination of the TAC.  Ideally, the establishing of a TAC should be the result of assessment of stocks and population and should therefore follow from complicated calculation and modeling. In other words, a TAC should be scientifically based.  However, realistically, both socio-economic and ecological factors are required to be factored in when establishing a TAC.  What emerges in the establishing of TACs is a wholly socio-bio-economic model.  Article 61 of the LOSC deals with the concept of conservation of the living resources within EEZs.  Article 61(1) provides that Coastal States shall determine the allowable catch of living resources within its EEZ. The word shall as it appears in Article 61(1) implies that the duty to make such a determination is compulsory.  However, Article 297(3)(a) which refers to the dispute settlement uses the phrase discretionary powers for determining the allowable catch of coastal states and therefore suggests that the determination of the TAC under Article 61(1) is not compulsory.  Complicating matters, Article 297(3)(b) makes provision for mediation proceedings when a coastal state arbitrarily refuses to determine its allowable catch. It is therefore conceivable that Article 61(1) is
Only discretionary as to the result achieved though mandatory as to the fact of its exercise.
The purpose of conservation and management regulations is highlighted by Article 61(2) which provides that its purpose is for ensuring
that the maintenance of the living resources in the exclusive economic zone is not endangered by over exploitation.
This duty of cooperation has as its further aim the maintenance and restoration of harvested at levels which can produce the maximum sustainable yield with reference to applicable environmental and economic factors inclusive of the EEZz economic needs as well as those of the coastal fishing communities and the special requirements of developing State.Account must also be taken of the fishing (patterns, the interdependence of stocks and any generally recommended international minimum standards.
    The maximum sustained yield (MSY) reference to in Article 61(3) appears to imply that biological characteristics alone should be employed in the conservation field.  However, reference to economic and environmental elements suggests that biological characteristics alone will not determine the allowable catch under the auspices of conservation.  Taken as a whole, the tone of Article 61 strongly suggests that the coastal state shall have a broad discretionary power in determining the allowable catch within its EEZ. 
    In implementing conservation, utilization and management measures in safeguarding against the over-exploitation of the fish stocks, Article 5(b) of the UNFSA goes beyond Article 61(2) by requiring that these measures be devised based on the best scientific evidence accessible by the coastal state.  When taken together with the precautionary approach, conservation, management and utilization requires scientific research of stocks as well as monitoring by fisheries departments. In this regard, coastal states will necessarily have to cooperate with RFMOs who target specific species, sponsor and conduct scientific research as well as monitor and collect data and assess and predict the location, availability and surplus or decline of those species.
    When all is said and done, the duty to cooperate is entirely significant because the establishing of the TACs begins with influences and pressures from a number of agents.  Del Valle et al refer to this phase of the TAC determination as the influence-projection framework. International institutions, environmental groups, scientific agents and a number of diverse groups (fishers, ecologists, processors, retailers etc) all have a stake in the TAC and attempt to assert their influence on the decision-making bodies who are invariably comprised of the Ministry of Fisheries.
Decision-making bodies are directed by the international legal framework discussed above to ignore these pressures and to focus on socio-economic and biological factors, taking account of the best scientific evidence available with the object of ensuring against both the under-exploitation andor the over-exploitation of fish stocks.  The reality is however, the decision-making bodies are quite often accountable to a number of these pressure groups and with the best of intentions may not be able to ignore these influences.  Even when relying on the best available scientific evidence, it is quite possible that those compiling the scientific evidence are themselves influenced by self-interests or other motivating factors.  The international framework will therefore at best function to operate as a guide when decision and policy-makers are unaffectedly committed to the conservation, utilization and management of fish stocks globally.   Even then, it is still difficult to rule out the voices of those who attempt to influence the TAC.
    Tuna is arguably the most valuable among the highly migratory species listed on Annex 1 of the LOSC.  In this regard, adhering to a regime calling for the management, conservation and utilization by reference to the MSY can be entirely problematic. If fishing activities can be modified to correspond with the potential reproduction and growth of a fish population, the MSY of fish can be achieved without endangering the specific populations.  However, the reality is that the fishing pressure becomes much greater than the population can withstand.  As of 1991, tuna catches reached in excess of 3 million metric tons and sold for US7, 600 million. This means that tuna stocks are heavily-to-fully exploited.  These early figures demonstrate that the tuna population has been at risk for a relatively long period of time.
    The highly migratory nature of tuna makes it entirely difficult to manage and conserve.  The reality is, the migratory nature of tuna stocks together with its economic value leaves it vulnerable to a great risk of over-exploitation and out of the reach of regulation and reporting.  As Allen reports
The result has been that tuna fleets and their catches have been growing, often unsustainably.  Consequently, there are too many tuna fishing vessels for the amount of fish available and many stocks are either at risk of being, or are, over exploited.
It therefore follows, that cooperation for the management, utilization and conservation of tuna urgently requires the precautionary approach in order to achieve a MSY.   Coastal states are required to ensure that DWF states have access to their the TAC and DWF states are required to respect the conservation and management measures applicable to the areas in which they land tuna catches.  In other words, these conflicts of interest have to be reconciled by the application of a delicate balancing act if tuna is going to have a MSY.
    Currently, the five tuna RFMOs have incorporated different TAC practices.  The IATTC incorporates what is referred to as maximum national carrying capacities relative to purse-seine vessels from participating fishers and states.  This criteria is based on tuna catches in the Pacific by various fishers from 1985-1998, the number of catches and tuna landings within EEZs by different countries as well as other factors.  The difficulty with this approach is that the individual state capacities were only in effect in 1999 and in 2002 the Regional Vessel Register was closed with respect to purse-seine fishers.  What this means is that as of 2002, new entrants could not participate in the IATTCs purse-seine tuna fisheries as of 2002.
    The ICCAT and CCSBT have been more accommodating of new entrants in the establishing of TACs.   The ICCAT for instance established TACs in 1983-1991which were revised in 2001,  that take account of the status of stocks, catch patterns, its geographical nexus to coastal states, the necessity of providing stock assessment data and the needs and position of both small and emerging fisheries. The CCSBT originally set up TACs for its three initial members, Australia, Japan and New Zealand.  In 2003 the TACs were redistributed and included the Republic of Korea and Chinese Taipei with a relatively small quota allocated to outside states as a means of motivating outside countries to become members and cooperate in the management, utilization and conservation of tuna stocks.
    The greatest problem for tuna TACs and TACs in general is enforcement.  Japan demonstrates this best.  In 2006 it was revealed that Japan exceeded its TAC quota for several years. What this means is that in order for TACs to have their intended impact they will not only have to devised according to impartial and socio-bio-economic factors, they will have to be monitored by impartial organs.

2.4.2 Dependent and associated species (bycatch)

By-catch is the term used to refer to non-targeted species caught during the catching or attempt at catching a targeted species.  Inevitably these by-catches are typically associated with or dependent on the targeted species and are either retained or discarded.  Methods of fishing for tuna can be entirely important to the ecosystem as it engages not only conservation and management of the tuna species, but also conservation and management of by-catches.  These by-catch species can also become depleted as a result of the methods used for fishing tuna.  The difficulty arises primarily because these by-catches have a role to play in the marine food webs. Recognizing the risk to tuna by-catches, individual RFMOs regulate the conservation and management of tuna by-catches by regulating fishing techniques paying particularly attention to the fishing technique to which specific by-catches are vulnerable.  In addition RFMOs cooperate with one another in terms of information sharing and compatibility of measures to ensure that by-catch casualties are minimized.
In 1998 the FAO also became involved when it implemented a specific plan for the minimizing of seabird by-catches in tuna fisheries.  In this regard the FAO set up the International Plan of Action  for Reducing the Incidental Catch of Seabirds in Longline Fisheries (IPOA-Seabirds).   The IPOA is entirely voluntary and calls upon nations which engage longline fishing to earmark locations where seabirds are vulnerable to targeted catches and to determine what measures would be appropriate for minimizing the incidents of seabird by-catches.  RFMOs were encouraged to take the same measures in their over-all eco-system management. The difficulty for any by-catch and ecosystem management is the fact that approximately one third of the seabird casualties are a result of illegal, unregulated and unreported fishing.  As a result, the regulation of fishing techniques and all other measures calculated to reduce the number of by-catches that are either retained or discarded will only have minimal effect if illegal and unreported fisheries are not contained.  In this regard, cooperation among states and RFMOs is entirely important for compatibility of measures and informationdata sharing.
Given the economic value of the tuna industry and the drive to participate in tuna fisheries, by-catches are at risk of extinction just as tuna is.  It is therefore entirely important that tuna fisheries are effectively managed and conserved, while taken account of the by-catches that end up being collateral damages. For example, ever since the 1960s the dolphin-based tuna fisheries method in the Pacific Ocean has resulted in the death of more than 6 million dolphins. This has led to cooperation among a number of states for the modification of fishing methods laws that have significantly reduced the mortality of dolphins.
Article 61(4) of LOSC calls specific attention to associated or dependent species.  Article 61(4) requires that coastal states take account of the consequences for associated andor dependent species arising out of the harvesting of the targeted species with the aim of maintaining or restoring populations of these associated andor dependent species above levels at which their reproduction may become seriously threatened.Upon a narrow interpretation of Article 61(4) states are required to take into account the reproduction and population growth of species associated andor dependent on specific species to the extent that their reproduction and populations are not at risk of becoming extinct or at the very least threatened.  A wide interpretation of Article 61(4) requires specific attention to the ecosystems of the oceans to the extent that it encapsulates a complicated chain of natural relations where the food chain and the commensal association create intricate interdependencies.
    Article 5(d)(e) and (f) of the UNFSA like Article  61(4) of the LOSC seeks to achieve cooperation with respect to the management and conservation of by-catches associated or dependent on the targeted species.  Article 5(d) provides that states
Assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks.
Article 5(e) goes on to provide that where necessary, management and conservation measures are required to be taken for associated andor dependent species and other species of the same ecosystem with a view to ensuring the maintenance or restoration of those populations above the levels that would render the their populations at serious risk.   
    Article 5(f) requires that catches of non-target species and the impact on associated andor dependent species be minimized. Article 5(d) (e) and (f) therefore provide for an improvement on Article 61(4) of the LOSC which only provides for consideration of the consequences for associated andor dependent stocks.  This means that the conservation management of targeted species is an onerous duty in that it is not only important to safeguard against the decline of the targeted species but also the non-targeted species.
    The by-catches of dependent and associated species relative to tuna depends on the manner in which the tuna is landed.  If the purse seine fishery method is non-targeted by-catches is primarily the shark and the rainbow runner.  Other non-targeted by-catches by virtue of the purse seine method are the frigate tuna, mackerel scad, ocean triggerfish, mahi mahi and the black and blue marlins. Longline fisheries primarily result in by-catches of the blue shark.  Other longline fishery by-catches associated with tuna fishing are the blue marlin, swordfish, striped marlin, wahoo, sailfish, black marlin, ecolars, silky shark, thresher shark and oceanic whitetip shark. 
    Managing and conserving by-catches associated with tuna are entirely important for two reasons.  Firstly, these by-catches may have significant commercial value and it is therefore important to ensure that their populations are not compromised.  Secondly, these by-catches can have significant value relative to the international public goods.  With respect to the latter the international public goods include biodiversity conservation, for instance sea turtles, sea birds and dolphins together with the overall ecosystem health and the associated services.  These by-catches are difficult to observe, therefore cooperation among states for the collection and sharing of data relative to by-catches is just as significant as data submission and sharing relative to tuna catches.

2.4.3 Data Submission and sharing

Data relative to fish stock assessment include information collected over several years, specifically the biologically distributed species catches as well as other statistics such as age or length. Other relevant data bases include information about commercial catches, fishing efforts and research on the distribution of fish stocks in terms of areas, lengths, ages and other like statistics.  The FAO Code of Conduct also stresses that conventional knowledge of both fish habitats and resources should inform the data collected relative to the management and conservation of fish stocks.  The FAO Code of Conduct also urges that relevant data necessarily includes information about the environment, economy and social elements.  Essentially, data relevant to the assessment of fish stocks for management and conservation is divided into four categories.  They are biological, ecological, economic and social.
    In order to conduct an effective scientific analysis of fish stock abundance or population decline, information or data on the fish population and environmental factors that have consequences for distribution, abundance and productivity of targeted andor non-targeted species is required. RFMOs typically collect and compile this data.  Regional Scientific Organizations typically maintain significant biological and environmental data in association with marine species conditions.  A number of these organizations participate in the fish stock assessment system and lend advice to RFMOs while other Regional Scientific Organizations manage and coordinate research efforts.
When the biological characteristics of the tuna species are taken into account, the complexities of managing and conserving the tuna stock are significant.  In particular, the migratory nature of tuna stocks makes the stock vulnerable to exploitation as a result of the difficulties of conservation and management practices and policies.  Poor conservation and management means that there is a great risk of unlawful, unregulated and unreported fishing.  Moreover, important by-catches are at risk of also becoming endangered. Among the list of by-catches vulnerable to tuna fisheries as listed above, the important by-catches are sharks, turtles, seabirds, smaller cetaceans, juvenile tuna, dolphins and other fish.  Perhaps more importantly, the highly migratory nature of tuna also makes it vulnerable to exploitation with the result that the stock itself is rapidly decreasing. The recording  and reporting of tuna catches and by-catches are entirely important for managing, conserving and utilizing tuna stocks and reducing the incidents of over-exploitation and under-exploitation.
    Tagging of tuna is therefore very important for locating abundant tuna stock and available catches.  Under and over-reporting to the FAO, the organization that compiles international fisheries data can compromise the accuracy of abundant and available catches and by extension the satisfactory conservation and management of tuna stock.  There are a number of international organizations involved in the process of collecting accurate data on the migratory patterns of fish which can substantially predict the location and availability of specific tuna stock.  For instance, the Tuna Research and Conservation Center conducts the Tag-A-Giant program conducted by scientist and fishers that gathers scientific information that tracks the stock constructs of the bluefin tuna.
    Another similar organization is the Tagging of Pacific Predators (TOPP) which began in 2000 as a part of the Census of Marine Lifes 17 ongoing projects.  The Census of Marine Live is an international organization made up of 80 different countries which come together to access and examine the diversity and abundance of life in the oceans where the life is located, has been located and will be located.
    In collecting this data, sophisticated scientific tools are used. For instance the archival tag is a recording devise which can track tuna for up to a decade.  The device is surgically placed in the tunas belly and records frequently.  It records the tunas depth, light, body temperature and speed. The archival tag has to be retrieved so that tagged fish that are caught by fishers or migrate to a specific shore or coastal area will have to cooperate with TOPP or any international or other scientific organization monitoring tuna patterns by virtue of the archival tag. Therefore the close coordination and cooperation of various jurisdictions in which tuna migrate to and from frequently is required for the implementation of scientific tools and the harvesting of its corresponding data.  Otherwise the attendant problems of under and over-reporting persists. 
    Other tags are no less dependent on interstate cooperation.  For instance the Pop-up archival tag which is time released in that it is separated from the fish at intervals may rely on its being found and turned over to the TOPP officials so that its data can be downloaded.  This is particularly important once the battery dies and the information recorded is no longer being picked up by the satellite network.  The Census on Marine Life underscores the significance of international cooperation in the accurate harvesting and distribution of scientific date relative to the conduct and patterns of highly migratory stock.  The significance is underscored by the large number of partners and sponsors on an international level.  The Census on Marine Live partners with a large number of program, foundations and government agencies from around the globe.  The idea is to harvest information and data based on scientific information for the determining access, diversity, abundance and distribution of all living organisms within the oceans of the world.
Data submission and sharing requires close and frequent cooperation between states under the LOSC and the UNFSA.  Obviously the idea is to ensure that conservation, utilization and management of fish stocks is effective in that it keeps pace with changing situations and permits for more accurate assessment of fish stock availability and accurate prediction of fish stock availability.  Article  61(5) of the LOSC provides as follows
Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.
    The availability of information and data in this regard is entirely significant for the making accurate assessments of stocks in terms of its productivity, health and availability. It also permits a more effective and comprehensive management, utilization and conservation scheme.   Obviously, Article 61(5) must be read together with Article 61(1)(a) which requires that conservation measures be based on the best scientific evidence available.  The difficulty with Article 61(1)(a) however is that it fails to set a criteria or standard for the quantity of data and information necessary for determining what is the best available scientific evidence.  Nor is there any guidance as to how this information should be exchanged.  There is no real duty on the part of contracting states to collect data nor is there any to carry out research to obtain that research.  Even if reliance is placed on available data, there is no way of predicting with any degree of cohesion what might be a satisfactory catch limitation.  Therefore the requirement to use the best scientific data available is no more than a tenuous guide for states with very little substance in terms of enforcement.  The result is, coastal states are left with a great degree of flexibility for the determination of what is the TAC, the calculation of catch capacity, surpluses and granting other states access.  Moreover, there is no certainty that decisions made by reference to the best scientific evidence available will ultimately result in the most appropriate conservation results.
    Article 5(i) of the UNFSA cures some of the problems associated with Article 61 of the LOSC by providing for states to conduct scientific research.  In essence Articles 5(i) and 5(j) require states to not only monitor their own fishing vessels, but to conduct research for the purpose of increasing the chances of collecting reliable data.  Article 5(j) of the UNFSA goes a bit further requiring states to not only collect data, but to share it.  The data collected should relate to the fishing activities inclusive of position of vessels.  Article 14 provides as follows
States shall ensure that fishing vessels flying their flag provide such information as may be necessary in order to fulfill their obligations under this Agreement. To this end States shall in accordance with Annex I.
    The UNFSA goes a lot farther than the LOSC with respect to data submission and sharing.  Article 18 also provides that the flag state is required to implement measures that provide for
requirements for recording and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data in accordance with subregional, regional, and global standards for the collection of such data.   
The duties of the flag states have therefore been strengthened by Article 18 and represents an improvement on Article 61 of LOSC.  By placing a more onerous duty on flag states to monitor their fishing vessels, the risk of unregulated and illegal fishing should therefore be reduced.  Moreover, the emphasis on self-reporting requires measures which arguably entail the implementation of sanctions for failure to report.
The UNFSA also imposes data collection and sharing duties on RFMOs. The idea is to spread data collection and sharing responsibilities to those who are in the best position to ensure compliance and to sanction those that do not comply.  Article 10(d), (e) and (f) which sets out the RFMOs functions mandates that RFMOs collect and analyze scientific advice revise stocks status and assess the consequences for non-target species. RFMOs are also required to agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks.  RFMOs are also required to
compile and disseminate accurate and complete statistical data as described in Annex I, to ensure the best scientific evidence is available, while maintaining confidentiality where appropriate.
Annex 1 of the UNFSA therefore takes on a complimentary role.  Annex 1 sets out comprehensive provisions relative to the collection and dissemination of data.  Therefore where the LOSC is vague, the UNFSA compensates by providing for a detailed regulatory framework.
    Article 1 of the Annex to the UNFSA provides that collection, compilation and analysis of data should be timely. Timely is not defined, therefore the presumption is that data should be collected and analyzed within a reasonable time.  What is reasonable however, would depend on a number of variables such as resources for analyzing and this could have different definitions for different RFMOs.  It is therefore quite possible for different RFMOs to have different data submission and reporting time constraints with the result that there is inconsistent data submission and sharing.
Moreover, UNFSA requires that the data should be both collected and compiled in such a way as to enable statistically meaningful analysis in anticipation of fisheries conservation and management.  The data collected and compiled from fisheries on the high seas and in national areas should relate to catches, efforts and other related information such as vessels and information relative to non-target species.  The data collected is required to be authenticated for accuracy.This raises the question of who should be accepted as competent to authenticate data collection.  It is quite possible for some party with an interest to serve to authenticate entirely unreliable data.  It can therefore be argued that the authentication requirement is not clear enough to eliminate the risk of corruption.
    Annex 1 also takes account of technology and expertise in terms of data collection and compilation by stating that
Assistance, including training as well as financial and technical assistance, shall be provided to developing States in order to build capacity in the field of conservation and management of living marine resources.
Assistance in this regard will concentrate on improving the ability to collect and authenticate data as well as observer programmes, data analysis and research projects supporting stock assessments.   It is also required that scientists and conservation and management officials from developing states be encouraged to fully participate in the data collection, compilation and analysis process.It is highly unlikely that states, regardless of status will want to cooperate with RFMOs or any other international organization wishing to provide technical assistance. This can be viewed as entirely inconsistent with perceptions about state sovereignty.
    Be that as it may, the LOSC takes a flexible or rather a subjective approach to the determination of measures.  The reality is, it is unrealistic to expect that all coastal states will have access to the same standard of scientific evidence relative to specific stocks.  Therefore, developing states have not been steadfast in the adoption of the LOSCs goals quite simply because they do not have the technology required for amassing adequate scientific evidence. To accommodate developing states, the LOSC is aimed at ensuring that RFMOs contribute to the compilation and exchange of the scientific information available.
    UNFSA compliments the intent of the LOSC for the compilation and distribution of data compiled from the best scientific information available.  Article 2 of Annex I of the UNFSA provides for the general principles guiding and defining the manner and method for collecting, compiling and sharing data derived from fishing activities.  To start with states are required to ensure that the data is harvested from their own vessels relative to fishing operations pursuant to operational characteristics of each fishing method and is sufficiently detailed for assessment. The onus is therefore on the flag state to monitor their own fishing vessels even after entering the high seas. Fishery data compiled by states should be verified and states should be supplied to the applicable subregional or regional fisheries bodies or other appropriate arrangements. Ultimately states should cooperate not only for exchanging data but should agree on the specification of data and the format for providing that data within the framework of subregional or regional fisheries management bodies or arrangements or otherwise. Scientists from the flag state together with scientists from the applicable subregional or regional fisheries bodies are required to analyze the data either together or separately.
    Article 3 of Annex 1 of the UNFSA provides a list of what amounts to basic fishery data.  Basic fishery data consist of both time series of catch and effort statistics by fishery and fleet total catch by number, weight, species both targeted and non-targeted discarded fisherieseffort statistics appropriate to each fishing method and fishing locales, date and time of fishing activities.  The difficulty here is that collection of basic fishery data relies far too heavily on self-reporting by vessels that may have an interest to serve by under-reporting. States are also required to collect and furnish data supportive of assessments of stocks to the applicable regional or subregional bodies, where relevant.  Such data includes catch composition on the basis of size and gender, biological statistics such as age, growth, recruitment, distribution and stock specifics. Other relevant data includes research as well as surveys on abundance, biomass, hydro-acoustics, environmental elements impacting stock availability, oceanographic and ecology.The presumption is that states are both willing and able to conduct these researches and surveys.  If states lack the resources to conduct surveys and research, there are no guarantees that these states will cooperate with other states offering training and technical support.  Even if states lacking resources were to accept training and technical support from other states,  the concept of timely data reporting is skewed as training and resources will first have to be established before data can be analyzed and distributed. 
    Article 4 of Annex 1 of the UNFSA also compels states to collect vessel-related data necessary for setting standards relative to the composition of fleets and vessel fishing power for the purpose of converting between different measures of effort in the analysis of each catch and effort data. States are required to ensure that their vessels maintain fishing logs reflecting both catch and effort as well as fishing activities on the high seas and to transmit that information where appropriate by simultaneous broadcasts. States have an obligation to adopt information verification methods via monitoring of their vessels, scientific observer programmes for monitoring catches, efforts, composition of catches and other relevant details.  These provisions assume that states have the resources for monitoring their vessels or that they will cooperate with other states offering support.   Again as there are no enforcement provisions, these states may simply refuse to monitor their vessels or to share the data collected.
Other verification obligations are the implementation of methods for recording vessel trips, landings and transshipment as well as port sampling. Data must be shared between flag states and coastal states where applicable via the relevant subregional or regional bodies. These bodies will in turn ensure that information is compiled and furnished to all participating states in a timely manner and in a format agreed upon. On an international level, data is transmitted via the FAO. Again what is timely will depend on the individual states resources andor willingness to cooperate with states offering technical support and assistance.
Essentially, these provisions on the collection and distribution of data relative to fish stock emphasize that the flag state has the ultimate responsibility for collecting and sharing data.  By virtue of Article 5 flag states are required to dispatch its fisheries departments log book on effort and catch and operations on the high seas to its applicable subregional or regional fisheries management unit.  Moreover Article 7 requires that flag states exchange and share data with each other and the appropriate coastal states via the applicable subregional or regional fisheries management unit.  These organizations are in turn required to compile the data and to make it available in a timely fashion in the agreed format to all states that have in interest in the data.
The FAO Guidelines for the Routine Collection of Capture Fishery Data 1999 lays out the primary data collection methods.  To this end, the maintaining of registries and licences is purportedly valuable for complete enumeration  but can be constrained by variables that change slowly such as the number of vessels and their specific characteristics. Another main method for data collection is the distribution of questionnaires among participating fishers and states.  However, this method of data collection is highly dependent on literacy and the willingness to participate.  Interviews are thought to be an effective method of dispensing with the problems associated with illiteracy, but much will depend on the participants willingness to cooperate andor to be honest.  Neither a questionnaire nor an interview will be of any assistance where the respondent is illegal and is therefore uninterested in self-reporting methods.
A more realistically significant method of data collection espoused by the FAO Guidelines for the Routine Collection of Capture of Fishery Data is by virtue of direct observations. Article 6 acknowledges that this method of data collection is the most accurate method for many variables such as catch.  However, direct observations are typically reserved for industrial fisheries.  Reporting is the final main method of data collection under Article 6. It is described as providing the most significant alternative for maintaining direct measurements as it calls upon fishers and other relevant actors to report their own fishing activities.  However, self-reporting can be problematic as it requires both literacy and the willingness to cooperate.  Even so, cooperation can be cured or at the very least maximized by legal enforcement.
The purpose of the detailed data collection and assessment guidelines and legal framework is to ensure that there is a balance between information that is commercially sensitive and information that is necessary for the conservation, utilization and management of highly migratory and straddling stocks.  Monitoring and observing catches and catch efforts is entirely important for ascertaining and predicting stock availability, overfishing, under-fishing and locations.  Without appropriate information, fisheries management and conservation schemes would be entirely ad hoc and ineffective.  Annex 1 of the UNFSA also recognizes that meaningful information is spread among different participants such as fishers, state fisheries management departments and regional and subregional bodies.  In order to effectively manage, utilize and conserve fisheries it is necessary to share that information, analyze it and use it to formulate appropriate management, utilization and management systems.
    Tuna RFMOs (CCSBT, GFCM, IATTC, ICCAT, IOTC and WCPFC) organize and coordinate data collation and collection as well as tuna stock assessment, processing and distribution of this data.  IATTC, which has superior research tools conducts aggressive research while the CCSBT, GFCM, ICCAT, IOTC and WCPFC typically relies on the collation of data and research submitted by their respective members.  The data collected is regularly analyzed for tuna stock assessment and the results of these analyses are submitted at scientific conferences which are typically comprised of scientific committees and other working organizations.  Ultimately, tuna RFMOs have come to the realization that the management and conservation of tuna stocks requires the collation of information from among each of their respective regions.  As a result tuna RFMOs convene from time to time, to discuss issues that are common to all tuna RFMOs.  The result has been the creation of the Network of Tuna Agencies and Programs as well as a joint web site for the decimation of tuna data.
    The authenticity of the data harvested and analyzed by tuna or any fisheries RFMO is highly dependent on the commitment of the will of the respective members or non-members of the relevant RFMOs.  When members or non-members fail to comply with the reporting conditions and regulations set by RFMOs, it can hinder that RFMOs efforts to effectively manage and conserve tuna fisheries.  For example, the ICCATs experience offers proof that even with an improved legal framework cannot adequately resolve the setting of TACs which are established above the suggested scientific advice obtained.  In other words, data must be collected, analyzed and distributed in a timely manner if conservation and management initiatives are going to be successful.
    A lack of data can also operate as a damper on introducing appropriate modifications to existing tuna conservation and management regulations within a specific RFMO region.  For example, within the ICCATs region, the status of a number of tuna stocks in the Mediterranean and the South Atlantic is entirely uncertain because there are either no stock assessment or the assessments are stale-dated or the stock assessments themselves are uncertain. It is therefore important that some method for enforcing the implementation of set standards for the collection and submission of tuna fisheries data from the relevant member states.  This would result in greater quality and expedition of data submission and sharing so that effective and appropriate modifications can be made to correspond with changing conditions.  Only then will the goals intrinsic in optimum utilization be capable of achievement.
       
2.4.4 Optimum Utilisation
The duty of the coastal state to cooperate with other states is exemplified by Article 62 which takes the duty to determine the allowable catch to another level of cooperation.  Article 62 which makes provision for utilization provides that coastal states are required to allow access to any surplus by fishermen from outside of its own state. Article 62(1) states that subject to the duty to determine the allowable catch under Article 61, coastal states
Shall promote the objective of optimum utilization of the living resources of the zone.
The first point of note, is that Article 62(1) does not confer upon coastal states a duty to promote full utilization of the living resources within its EEZ, but rather optimum utilization.  Moreover, the duty is subject to Article 61 which confers upon the coastal state the right to establish the TAC.  In other words, optimum utilization is limited by the coastal states own fisheries industry and any other interest it might cultivate.  The only saving grace may be found in Article 64 which requires cooperation and this in turn is construed as the duty to negotiate and to actively take into consideration the interests of other states.  The significance of Article 64 is that it recognizes that highly migratory stock, particularly tuna, travels from one EEZ to another and just as often into the high seas.  Therefore the interests of other coastal states and DWFs should not be ignored.
    There is a particular difficulty with obtaining optimum utilization while taking account of new entrants.  Regardless of whether the fish stock is within an EEZ or in the high seas, there will inevitably be a set of conservation and management regimes already in place.  These regimes may have already placed restraints as a means of protecting the fishery within the specific region or sub-region.   Unless there is a complete ban against new entrants, fishing states are duty bound to grant new entrants reasonable access to the resources.  In either case, new entrants are required to comply with the conservation and management measures already in place.
Article 62 contains one caveat pursuant to the optimum utilization objective.  The caveat exist in the provision that should the coastal state not have the ability to harvest the entire allowable catch it is required to permit other states to gain access to that surplus of the allowable catch but with reference to Articles 60 and 70 of the LOSC. Article 69 confers upon land-locked states a right to participate in the surplus of an EEZs surplus within the landlocked states region or subregion but only by reference to the economic and geographical conditions of all relevant states. Identical rights are conferred upon geographically disadvantaged states by Article 70.
    When access for the purpose of meeting the optimum utilization objective of Article 62 is conferred upon other states, coastal states granting access are required to take account of all relevant facts and circumstances including the importance of the living resources to the economy of that coastal state, other interests, the rights conferred by Articles 69 and 70, the situation relative to developing nations in the region or subregion and the
need to minimize economic dislocation of in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.
    Pursuant to the optimum utilization objective, nations of those states granted access to the surplus of living resources are required to adhere to conservation measure and any other provisions set forth by the coastal state of the EEZ.  These conservation measures and other provisions are required to comport with the LOSC and may include licensing, equipment restrictions, fees, catch quotas, designated species, seasonal restrictions, fish specification requirements in terms of size, age or gender and the duty to cooperate with trainees or observers who may be placed on the vessels of other states. Any determination made by a coastal state relevant to the allocation of surplus resources and conditions for use of such surplus will not be the subject of review. However, if the coastal states fails of refuses to ascertain the allowable catch, such refusal or failure may be the subject of review via dispute resolution via conciliation.
    Article 5 of the UNFSA builds on Article 62 of the LOSC.  Article 5 provides that for the purpose of conserving and managing highly migratory and straddling fish stocks, both coastal states and states that are fishing on the high seas shall cooperate and
Adopt measures to ensure their long-term sustainabilityand promote the objective of their optimum utilization.
In promoting the optimum utilization objective states shall pay specific attention to measures that are calculated to maintain or restore stocks at levels capable of producing the MSY as determined by both economic and environmental factors inclusive of the requirements of developing countries, fishing patters, stock interdependence and minimum standards at international law.  So far, Article 5 is vastly similar to Article 62 of the LOSC.  However, Article 5(c) goes further to call upon states to take a precautionary approach.
    Like Article 62 of the LOSC, Article 5 of the UNFSA also confers a right to impose conditions for optimum utilization such as restrictions on fishing gear for the purpose of conservation of the fish stock, measures designed to prevent overfishing and excessive capacity and limits on fishing efforts to ensure sustainable fisheries resources and the right to monitor and observe fishing activities.
    A review of the provisions contained in LOSC and UNFSA as they relate to optimum utilization suggest that it is characterized by competing interests.  In other words, by definition derived from the applicable provisions, optimum utilization means granting access to surplus stocks and at the same time safeguarding against overfishing and exploitation to the point where the stock does not become endangered.  It also means ensuring that the competing interests of states whose nationals fish in the applicable region are taking into account.  In this regard optimum utilization is distinguished from MSY in that the latter seeks to restore the fish stock or to sustain its population and the former seeks to ensure that surpluses are not under-exploited by reference to specific safeguards against over-exploitation.  It therefore follows that a framework for compatible measures is entirely necessary for achieving optimum utilization.

2.4.5 Compatibility of conservation and management measures across maritime jurisdictions
For the most part, fish stocks are distributed among the different fishing zones of a number of coastal states as well as in the high seas.  In this regard, conservation and management often requires that any measures taken are required to take into consideration the entire fish stock.  The international legal regime copes with this situation by requiring cooperation among the coastal and fishing states. Essentially, participating states have a duty to cooperate so that conservation and management measures are compatible. There are a number of competing interests that make the task of cooperation for the purpose of achieving compatible management and conservation measures an onerous task.
The fact is, compatibility means that measures taken in one state must not conflict with measures taken in another state. The UNFSA does not define the term compatibility.  However, Elferink defines compatibility as a term
Used to qualify rights of obligations attributed under a provision by requiring their exercise or observance to be compatible with another provision.
 In an industry where interests among the participating states are in conflict, a delicate balancing act is required.  Cooperation is regarded by the international framework as the best method of balancing these conflicting interests so as to achieve compatibility among the different legal regimes of the participating and interested states.
When states subscribe to the UNFSA they are committing themselves to a more robust and comprehensive set of obligations than those contained under LOSC.  This is because the UNFSA supplements rather than supplants LOSC.  The fact is, the combining effect of the UNFSA and LOSC is that they set out to achieve a measure of reciprocity between management and conservation of the living resources in EEZs and in respect of highly migratory and straddling fish stocks in the high seas.  The idea is to ensure that DWF states whose nationals fish in EEZs and on the high seas are bound by same measures regulating stock that are shared by both EEZs and the high seas.
    Article 7 of the UNFSA best captures this idea of reciprocity by providing for the implementation of measures within the EEZ and on the high seas that are comparable. The key to achieving comparable measures for conservation and management of these shared stocks is the duty to cooperate.  Article 7 requires that states agree to the measures that are necessary for managing fish stocks that are in the high seas and to cooperate with respect to conserving highly migratory fish stocks both within and beyond the areas under national jurisdiction.
Article 7 however, must be read together with Article 4 which safeguards the sovereignty, jurisdictions and obligations of member states to the LOSC.  To this end, UNFSA must be applied in a manner consistent with the Convention. Therefore compatibility also means that measures taken for the conservation and management of fisheries must not only be compatible among the various states, but must also be consistent with the LOSC.  The LOSC also recognizes that all states have a right to fish in the high seas.  It therefore requires that a large number of diverse states with diverse legal systems, socio-economic statuses and interests implement measures that are consistent and meet a common objective.
    Obviously, the best method for achieving comparable conservation and management measures is through negotiations via a third party.  This is the purpose for which RFMOs are established.  These organizations oversee specific fishing zones that include EEZs and the adjacent high seas.  The instruments for data collection permit these regional and subregional bodies to formulate measures that can take account of the factors that can ensure comparable measures of fish stocks that are shared by EEZs and the high seas.  Further guidance with respect to achieving compatibility is found under the auspices of the precautionary approach.

2.4.6 Precautionary approach
Environmental policies are increasingly becoming the subject of norms and principles.  MacDonald describes the new and emerging precautionary principle as problematic and elusive and calculated to prevent the continued degradation of the marine environment and the atmosphere. The difficulties arise out of the fact that there is no harmony among the international community as to how to construe and apply the precautionary principle.  As a result, the principle generates debate and controversy among policy makers, scientists, NGOs and international conventions.  Ultimately, the goal of the precautionary principle is to ensure that any activity posing any risk to the environment be avoided. In other words, not only are actual harms avoided, but any potential harm regardless of how real.  Once a risk of harm is perceived, it must be avoided.

The precautionary principle encapsulated under the UNFSA require emphasizing the protection and sustainability of the species population rather than achieving higher catches. The precautionary principle is provided for under Article 6 and Annex II of the UNFSA.  The precautionary approach was adopted by the UNFSA because LOSC only contained one express reference point for management and development targets, which is the MSY.
Article 6 of UNSFA provides that
States shall apply the precautionary approach widely to conservation, management and exploitation of straddling and highly migratory fish socks in order to protect the living marine resources and preserve the marine environment.
The content of the precautionary approach is provided for in Article 6(2) which states that
States shall be more cautious when information is uncertain, unreliable or inadequate.  The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.   
The obvious inference here is that the precautionary approach is not specifically a scientific consideration.  States are required to not only be familiar with environmental risks to the fish stocks, but they are also required to be able to predict such risks with or without scientific evidence of those risks.   
Article 6 sets forth the methods for adopting the precautionary principle.  Article 6(3)(a) provides that states shall collect and dispatch the best scientific information available.States shall also make improvements on the knowledge on the consequences for fishing on non-target species and their corresponding environments. States are likewise required to improve monitoring of both target and non-target species in circumstances where their respective statuses are matters of concern and to revise conservation and management measures accordingly.  Theoretically at least, states are required to be informed by whatever means available to them of the risks of harm to fish stocks and by-catches. 
    In order to cope with the question of improper or inadequate information, the UNSFA suggests a modest solution.  Article 6(3)(a) of the UNSFA requires states to adopt improvements in the techniques used for coping with risk and uncertainty.  Unfortunately, the UNFSA fails to provide specific techniques.  Uncertainties however require further consideration of relative factors such as the stocks productivity and size, reference points, fishing level mortality, the environment and economic factors as well as the consequences for non-targeted species. For states that are already suffering from a lack of technology this may be a task that cannot be achieved and one that cannot be realistically enforced.  The reality is, improvements in techniques in one state or another may not amount to an adequate technique at all.
    For the purpose of adopting measures for the management of highly migratory fish stocks, reference points must be set.  Guidelines for the adoption of precautionary reference points are included in Annex II of the UNFSA.  These reference points are referred to as target reference points which define the objectives for management and limit reference points which indentify satisfactory biological constraints for the purpose of harvesting.In the event these reference points are exceeded, preventative action is required. What this suggests is that conservation measures will automatically be applied. The difficulty with the UNFSA is that it fails to describe or define what these measures ought to be.
    Determining reference points for tuna stocks is entirely difficult.  While there is a large volume of information on the status of tuna stocks, the uniform and cohesive categorization of tuna stocks pursuant to a specific criteria internationally is difficult because the reference points for a number of tuna stocks have yet to be ascertained.  For those tuna stocks that have the benefit of reference points the information is limited to size and mortality. Nevertheless, greater consistency of reference points for tuna stocks can be established by close coordination between different bodies that compile data on specific tuna stocks.  By taking this approach comparisons can be made to at the very least minimize discrepancies.
    The establishment of reference points for tuna stocks can be useful for the management, conservation and utilization of tuna stocks.  It will ensure that the risk of over-fishing and under-fishing are balanced for optimum utilization and for the preservation of the MSY.  Reference points makes it possible to predict the surplus and the depletion of certain tuna stocks and allows for measures such as constraints on size andor age catches to ensure the MSY as well as the optimum utilization of the stocks.  In the final analysis, compliance and enforcement is a significant factor for determining whether or not states are effectively endorsing the precautionary approach and establishing the relevant reference points.

2.4.7 Compliance and Enforcement
The UNFSA fortifies the LOSC provisions relative to enforcement and compliance with an international framework for the conservation and management of straddling and highly migratory fish stocks on the highs seas. The emphasis is on the duty of states to cooperate and environmental concerns as the backbone for management and conservation of these fish stocks. Article 18(1) of the UNFSA for instance describes the duties of the flag state and dictates that it has a duty in relation to the high seas to comply with region and subregional management and conservation measures. Moreover, flag states are required to implement a number of measures calculated to ensure compliance and enforcement of conservation and enforcement measures in relation to its fishers and fishing vessels operating on the high seas.  These measures include the adoption of regulations, the compilation of records, reporting and licensing requirements.
    Article 19 (as previously discussed) provides for a plethora of compliance and enforcement obligations on the part of the flag state.  In this regard, the flag state is required to monitor its own vessels fishing on the high seas and in EEZs and to ensure compliance with conservation, management and utilization measures implemented by the applicable RFMO. Flag states are also required to cooperate in the investigation and sanctioning of any infractions by its vessels or nationals in the relevant fishing zones.  In this regard, the onus is primarily on the flag state to ensure compliance and enforcement of conservation, management and utilization measures in force in the relevant fishing zone.
    Article 20 of the UNFSA also requires compliance and enforcement by the flag state by cooperation.  In this regard the flag state may ask another state for assistance if that assistance would be of use.  The flag state may also investigate a suspected infraction alone or in cooperation with other states or via the applicable RFMO.  The flag state is also required to cooperate with the coastal state if any one of its fishing vessels on the high seas is allegedly conducting unauthorized fishing activities in the coastal states territorial waters.
    Article 21 of the UNFSA shifts enforcement and compliance authority to the RFMOs.  Article 21 therefore permits and state party who is a member of a RFMO or a participating state to board and inspect any vessel of another state. However, the procedure for inspection and boarding and follow-up requires coordination and cooperation with the flag state.  Article 22 provides for the proper methods for inspecting and boarding such as restraints against the use of force. Article 23 delineates the authority of the port states to implement measures for compliance and enforcement of measures calculated to promote the RFMOs measures.  Again boarding and inspecting powers are conferred on the port state in close coordination and cooperation with the flag state.
    Cumulatively the enforcement and compliance provisions of the UNSFA give greater voice to the duty to comply with measures and to cooperate in the formulation of measurements under the LOSC.  The enforcement and compliance measures of the UNSFA provide for cooperation by the various participants in the fishing zones. These participants include coastal states, flag states, port states and the RFMO.  The idea is that if one participant does not seek compliance and enforcement another actor may step in to secure compliance and enforcement.


2.5 Conclusion
    LOSC sets a rather vague framework for the conservation and management of highly migratory fish stocks and fails to take into account that tuna as a highly migratory fish stock spends a great deal of its time in the high seas.  Therefore the expansion of the coastal areas and the narrowing of the high seas jurisdictions did not adequately address the functional distribution of rights and responsibilities for the management, utilization and conservation of tuna and other highly migratory fish stocks.
    The UNFSA can be seen as a gap filling instrument since it takes account of the fact that highly migratory fish stocks such as tuna spend a lot of time in the high seas.  As such the UNFSA distributes rights and responsibilities for the conservation of these fish stocks in a more definitive and detailed manner.  Regardless problems persist in the management and conservation of tuna as the incidents of failure to report and unlawful fishing continues to be a concern for RFMOs and the United Nations.  While the UNSFA has made significant improvements on the LOSC,  it would appear that compliance and enforcement continues to be a problem.  The remainder of this dissertation will specifically investigate why the problems that attended LOSC continue to compromise effective conservation and management efforts despite the improvements in the international regime under the auspices of the UNSFA.  Specific attention will be paid to Kenya as an example of the difficulties compromising the effectiveness of the international regime for the conservation, management and utilization of the fisheries industry, more specifically tuna resources.