**Preface to "Preserving Community Interests in Ocean Governance towards Sustainability"**

It is increasingly clear that the protection of the marine environment and the sustainable development of marine resources have been the most important components in global ocean governance and closely related to the vital interests of the whole international community. Although there are international normative documents and arrangements concerning ocean governance such as the United Nations Convention on the Law of the Sea (UNCLOS), the Rio Declaration, and the United Nations Sustainable Development Goals, the traditional mare liberum doctrine still remains firm in the promotion of national interests as individual states continue to grab marine space and resources in an unsustainable manner without seriously considering the collective interests of the international community, as well as the interests of future generations. Such national selfishness has caused severe environmental risks and disasters in the ocean, particularly the maritime area beyond national jurisdiction, including the high seas, Antarctica, and the international seabed (the area), commonly known as "global commons", but are of vital interest to the present generation as well as future generations. Thus, the rationale for preserving the community interests in ocean governance towards sustainability has become increasingly urgent.

This Special Issue is designed to focus on the community interests in ocean governance towards sustainability, and how to preserve these interests through the effective implementation of the international law of the sea and of the SDGs. The scope of the Special Issue will have several edge-cutting coverages: first, it will examine relevant legal issues concerning ocean governance in the context of SDGs for long-lasting benefits of the international community; second, it will identify new legal obligations to safeguard navigation and maritime security by considering the marine environment; third, it will evaluate effective legal frameworks for the sustainable use of marine resources (living and non-living); and fourth, it will discuss the regulations for marine scientific research and new developments of marine technologies for marine environmental protection. The purpose of this Special Issue is to highlight the concept of community interests in sustainable ocean governance, which will be fully reflected in a series of anticipated papers.

References to community interests appear from time to time in scholarly writings in the field of international relations and international law. The concept of community interests refers to interests protected by international law binding either all, or a group of, states and go beyond the delimitation of sovereign sphere of influence. There is existing literature, including books and journal articles, that considers the various manifestations of what has been described as "community interests" in many areas regulated by international law, including natural resources, global markets, human rights and use of force, and observes how law has evolved from a legal system based on more or less specific consent and aimed at promoting particular interests of states, to one that is more generally oriented towards collectively protecting common interests and values. However, the topic is never thoroughly researched and there is a huge gap in the existing literature, particularly in the context of ocean governance and sustainability. This Special Issue attempts to fill this gap, so as to attract more studies on this important topic in academia.

> **Keyuan Zou, Yen-Chiang Chang** *Editors*

### *Article* **Climate Change and Fisheries Regulation: What We Should Consider for the Future?**

**Keyuan Zou**

**Citation:** Zou, K. Climate Change and Fisheries Regulation: What We Should Consider for the Future?. *Sustainability* **2021**, *13*, 9735. https:// doi.org/10.3390/su13179735

Academic Editor: Tim Gray

Received: 21 June 2021 Accepted: 18 August 2021 Published: 30 August 2021

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**Copyright:** © 2021 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

School of Law, Dalian Maritime University, Dalian 116000, China; zoukeyuan@dlmu.edu.cn

**Abstract:** Climate change and its effect on marine environment, especially ocean warming, acidification and sea level rise, impacts fisheries in different ways. However, fisheries and climate change are regulated by different international management mechanisms, which makes the current fisheries management system face challenges. Realizing this, the present paper is designed to consider whether international law should be introduced to apply better management of fisheries so as to cope with the issues arising from climate change. In addition, the paper highlights the importance of incorporating relevant principles into future fisheries regulations by examining an existing bilateral fishery agreements.

**Keywords:** climate change; fishery management; legal principles; LOSC; precautionary approach; sustainable development; ecosystem

### **1. Introduction**

It is acknowledged that the precise and localized impacts of climate change on fisheries are still poorly understood [1]. This is because "the inherent unpredictability of climate change and the links that entwine fishery and aquaculture livelihoods with other livelihood strategies and economic sectors make unravelling the exact mechanisms of climate impacts hugely complex" [2]. This view is agreed to by the Stern Review on the Economics of Climate Change, in its statement that "for fisheries, information on the likely impacts of climate change is very limited" [3]. The ocean has absorbed 93% of the extra heat arising from the enhanced greenhouse effect (1971–2010), with most of the warming (64%) occurring in the upper (0 to 700 m) ocean [4]. To reverse that heating, the warmer upper layers of the ocean have to mix with the colder, deeper layers, which can take as much as 1000 years [4]. Temperature plays an essential role in the biology and ecology of marine organisms, the speed of isotherm migration ultimately determines the speed at which populations must move, adapt or acclimate to changed sea temperatures [4]. Shifts in stock distribution due to climate change have the potential of creating local extinction of economically important stocks while enhancing fisheries in areas where they were not present before [5]. For example, since 2010, the distribution proportion of Pacific halibut has increased from 9% to 11% in Canadian waters, and from 7.5% to 13% in Alaskan waters [5].

Oceans also absorb approximately 30% of emitted anthropogenic CO2, causing ocean acidification [6]. Rising water temperatures and ocean acidification damage coral reefs by enhancing reef dissolution and bio-erosion, affecting coral species distribution, and leading to community changes. Coral reefs are further exposed to other increased impacts, such as enhanced storm intensity, turbidity and increased runoff from the land [6]. Relatively small increases in sea temperature (as little as 1 ◦C to 2 ◦C) can cause mass coral bleaching and mortality across hundreds of square kilometers of coral reef [4]. When this occurs on a global scale, it is referred to as a "mass bleaching event." In 1998 a mass bleaching event killed almost 16% of the world's reef-building corals [7]. Loss of coral reef habitats leads to a reduction in reef fisheries production, which negatively impacts communities and countries highly dependent on coral reef ecosystems for their food, income and livelihoods. The economic costs due to the ocean acidification-driven reduction in the fisheries production of coral reef habitats are estimated to be between \$5.4 to \$8.4 billion annually under a high emission scenario [8]. What is worse is that ocean acidification can slow the rebuilding of coral reefs and weaken their structures.

The links between fisheries and their ecosystems are deeper and more significant than those that exist in mainstream agriculture [9]. The productivity of a fishery is tied to the health and functioning of the ecosystems on which it depends for food, habitat and even seed dispersal [10]. Estuaries, mangroves, coral reefs and seagrass beds are particularly significant in the provision of ecosystem services, especially as nurseries for young fish, and are also amongst the most sensitive and highly exposed to the negative impacts of coastal development, pollution, sedimentation, destructive fishing practices, and climate change [7]. Because fish tend to live near their tolerance limits of a range of factors, increased temperature and acidity, lower dissolved oxygen, and changes to salinity can have deleterious effects [11].

Sea level rise will likely damage or destroy many coastal ecosystems such as mangroves, seagrasses, and coral reefs, which are essential to maintaining wild fish stocks [12]. The threats to coastal habitats and fisheries from sea-level rise are exacerbated by increases in coastal extreme events, such as tropical cyclone winds and rainfall [12]. Changes in surface temperature could alter local ecosystems and affect the abundance and species composition of fish stocks [2].

Climate change in particular would affect fisheries and the fishery industry in East Asia. As we know, 85% of fishers and fish farmers worldwide live in Asia, with the greatest numbers being in China (9.6 million fishers and 5.0 million fish farmers) [13]. China is the largest producer of fish, accounting for 35 percent of global fish production in 2018 [14]. Thus, any adverse impact of climate change on fisheries will inevitably affect the livelihoods of fishers and fishing communities, particularly in Asia.

It is evident that climate change has impact on fishery, the present paper is designed to consider whether international law, particularly international legal principles, should be introduced to apply better management to fisheries so as to cope with the issues arising from climate change.

### **2. Applicability of Legal Principles**

As for the legal governance of climate change and fisheries, there are two different but associated legal frameworks in international law. The former is regulated by the United Nations Framework Convention on Climate Change (UNFCCC) while the latter is regulated by the United Nations Convention on the Law of the Sea (LOSC). Though governed by two different legal regimes, the two sets of laws have some legal principles in common. It is acknowledged that although there are no specific references to climate change in most of the Law of the Sea instruments, there are rules relevant to climate change both under the LOSC and under customary law in this field [15,16]. In most recent marine pollution instruments, specific references to climate change remain relatively rare [15]. One example which incorporates climate change is the 2008 Protocol on Integrated Coastal Zone Management in the Mediterranean Sea. It makes express reference to the UNFCCC and to climate change in preambular paragraphs, and in Article 5 (e) it identifies the obligation of States parties to "prevent and/or reduce the effects in particular of climate change," as one of the objectives of integrated coastal management [15]. However, there is no such express mention in fisheries agreements, whether global, regional, or bilateral. Yet the following legal principles should be applicable to both climate change and fishery management.

### *2.1. Precautionary Approach/Principle*

This principle/approach requires states to take precautionary measures even if there is no conclusive scientific proof of potential damage to a particular natural environment, climate, or fishery. The precautionary approach was first incorporated into the international fisheries law as the 1995 Straddling Fish Stocks Agreement provides that "States shall apply the precautionary approach widely to conservation, management and exploitation of

straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment." In order to implement this approach, states shall, e.g., improve decision-making for fishery resource conservation, obtain and share the best scientific information; take into account, inter alia, uncertainties relating to the size and productivity of the stocks, reference points, and stock condition; and develop data collection and research programs to assess the impact of fishing on non-targets [17].

The Seabed Chamber of the International Tribunal for the Law of the Sea (ITLOS), in its 2011 Advisory Opinion on the Responsibilities and Obligations of States, confirmed that the precautionary approach is "an integral part of due diligence obligation of sponsoring States, which is applicable even outside the scope of the [Nodules and Sulphides] Regulations" [18]. This statement from an international judicial agency has no doubt strengthened the applicability of the precautionary approach not only to deep seabed activities, but also to other ocean uses, including fisheries.

In state practice, the North Pacific Fishery Management Council (NPFMC) has closed sections of the ocean to fishing because of the scientific uncertainty of data due to climate change, and the Arctic Management Area is closed to commercial fishing until such time in the future that sufficient information is available with which to initiate a planning process for commercial fishery development [19].

This principle/approach is also applicable to climate change when there is a reasonable, foreseeable threat of serious or irreversible damage, including serious or irreversible damage to states vulnerable to the impacts of climate change [15]. According to the UN-FCCC, "The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties" [20]. It is obvious that the precautionary approach applies to both climate change and fisheries so that there is no difficulty in incorporating it in a legal document for fishery management in coping with climate change.

### *2.2. Principle of Sustainable Development*

Sustainable development means development as meets the needs of the present without compromising the ability of future generations to meet their own needs [21]. The concept has been widely accepted by the entire world community, and has gradually been reflected in national and international laws and policies, such as the 1992 Rio Declaration [22], Agenda 21 [23], and the Johannesburg Declaration [24]. One of the major purposes of the concept of sustainable development is to coordinate the relationship between resource uses and environmental protection, such that are not contradictory, nor in conflict, but can interplay mutually. Environmental protection is necessary to achieve the goal of resource uses which are sustainable, and economic benefits deriving from resources can provide the conditions in which environmental protection can best be achieved.

In international jurisprudence, the International Court of Justice has recognized the importance of sustainable development. It has developed legal doctrines concerning sustainable development particularly in two particular cases. In the case concerning the Gabˇcíkovo–Nagymaros Project (Hungary/Slovakia) (1993–1997), the Court held that "in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. This need

to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development" [25].

In the case concerning Pulp Mills on the River Uruguay (Argentina vs. Uruguay) (2006–2010), the Court considered that "the attainment of optimum and rational utilization requires a balance between the Parties' rights and needs to use the river for economic and commercial activities on the one hand, and the obligation to protect it from any damage to the environment that may be caused by such activities, on the other" [26]. That balance is exactly a reflection of sustainable development. In the discussion on Article 27 of the Statute of the River Uruguay of 1975, the Court held that "Article 27 embodies this interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development" [26].

In a word, sustainability has penetrated into our daily life. Sustainable development is an indispensable requirement for ocean governance, including fishery management. In the context of the ever-deteriorating conditions of the environment we rely upon, global warming, and climate change, this application is even more important.

The climate system is a common natural resource for the benefit of present and future generations, and sustainable development requires states to balance economic and social development with the protection of the climate system, and supports the realization of the right of all human beings to an adequate living standard and equitable distribution of the benefits thereof [15]. The UNFCCC sets forth its objective as "to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner" [20]. In order to fulfil this objective, the Convention obliges states to "promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems" [20]. Likewise, the UN Convention on Biological Diversity, which is more relevant to fishery management, is also designed to protect the environment and promote sustainability, with the objective being to conserve biological diversity and use its components sustainably [27].

### *2.3. Ecosystem Approach*

As we know, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) endorsed the ecosystem approach to the management of the entire Southern Ocean. This approach is in contrast to other conventions on fisheries such as the IWC, Northwest Atlantic Fisheries Organization (NAFO), or International Commission for South East Atlantic Fisheries (ICSEAF), where the aim of the convention is a sustainable yield of the target species and the welfare of the industry dependent upon it [28,29]. CCAMLR is based upon the conviction and understanding that the waters surrounding the Antarctic continent form a distinct marine region. Thus, there was recognition from the outset that the requirements of ecosystem management would require coverage of an area larger than that of the Antarctic Treaty. As early as 1977, the ATCPs agreed that the agreement should apply not only to the area of the Antarctic Treaty, but also should "extend north of 60◦ South Latitude where that is necessary for the effective conservation of species of the Antarctic ecosystem" [30]. The application of the Convention extends up to the Antarctic convergence, or polar front, which is a complex transition zone lying between 45◦ and 60◦ south latitude, within which colder Antarctic waters sink beneath the warmer, sub-Antarctic waters to the north.

According to Article II of CCAMLR, the ecosystem approach contains three basic elements or conservation principles: the first, maximum net recruitment, requires harvesting and associated activities to prevent a decrease in the size of any harvested population to

levels below those which ensure the population's stable recruitment; the second, maintenance of ecological relationships, requires harvesting and associated activities to prevent changes or minimize the risk of changes in the marine ecosystem; and the third requires parties to the Convention to maintain the ecological relationships that exist between harvested, dependent, and related populations of Antarctic marine living resources, and to restore depleted populations to levels which ensure the greatest net annual increment. This provision provides authorization for designating selected protected areas of the sea where harvest would be prohibited unless it would restore the ecosystem to such a structure and function as it was before harvesting occurred. The establishment of such areas in the Southern Ocean would provide a hedge against uncertainty and the risk of inadvertent exploitation in harvesting elsewhere [30].

The ecosystem standard provided in CCAMLR was viewed as an important innovation in international arrangements for marine living resource management [31]. It is designed to protect the marine ecosystem as a whole, while conserving living species. However, due to the absence of an effective enforcement mechanism and comprehensive scientific data about the whole marine ecosystem, there are many difficulties in its implementation [32]. Secondly, the term "rational use" in the conservation principle of CCAMLR is yet to be unambiguously defined, i.e., how and to what extent the use is rational. Furthermore, since the entry into force of CCAMLR, the ecosystem standard has not been effectively enforced, with particular conservation measures coming into being so late that some species and areas have been over-exploited already [33]. In this context, for the purpose of the effective implementation of the ecosystem standard of CCAMLR, it is necessary to make it clear in furtherance of the concept of sustainable development to apply the precautionary principle: the catch of the species of which mankind has collected sufficient scientific data is permissible, but fishing must be sustainable and subject to the total allowed catch which must ensure the greatest net recruitment of the taken species. As for species for which there is lack of sufficient scientific data, the catch should be strictly controlled or forbidden while awaiting further scientific justification. In short, fishing activities shall be prohibited unless they are conducted in full compliance with the ecosystem standard.

The ecosystem principle/approach is generally incorporated into the international fisheries laws, but there is still room to discuss whether it is applicable to climate change. However, it has correctly pointed out that "efforts to develop an ecosystem based approach without taking into account climate change would lead to unfortunate results" [34]. On the other hand, "climate change is a key driver for developing an ecosystem based fishery management as it exerts a pervasive influence over the whole fished system" [34].

### *2.4. Principle of Common but Differentiated Responsibilities*

Article 4 of the UNFCCC specifies the treaty obligations for developed and developing countries in accordance with the principle of common but differentiated responsibilities. There is general agreement that the protection of the climate system is a common responsibility of all parties to the UNFCCC, and this common responsibility could be said to flow from the common concern occasioned by climate change and its adverse effects [15]. The common responsibility of all parties is to cooperate in developing the climate change regime, and to work to achieve the objective of the Convention by taking steps to protect the climate system for present and future generations [20].

As for the differentiated responsibilities, there is consensus that many, albeit not all, of the responsibilities of states under the climate change regime are subject to differentiation [20]. This differentiation is reflected in the distinctions between Annex I, non-Annex I, states with economies in transition, and least-developed states that are drawn in UNFCCC Article 4, as well as distinctions between Annex I and non-Annex countries in the Berlin Mandate and the Kyoto protocol, and between developed and developing countries in the Bali Action Plan [20].

Large developing countries such as China and India frequently used this principle for any climate change negotiation. For example, China presented its working paper on addressing aviation emissions based on the principle "common but differentiated responsibilities"' to the International Civil Aviation Organization (ICAO) in September 2007 [35] and, jointly with India, the application of the principle "common but differentiated responsibilities" to the reduction of greenhouse gas emissions from international shipping to the International Maritime Organization (IMO) in August 2008 [36]. It is opined that a treaty with limited differential treatment in favor of developing countries and considerable flexibility for all would be held up as the gold standard for the negotiation of the 2015 climate agreement [37]. According to the Paris Agreement adopted in December 2015, its implementation should reflect equity and the principle of common but differentiated responsibilities and respective capabilities in light of different national circumstances [38].

While the principle of common but differentiated responsibilities constitutes a pivotal norm in the overall legal framework for climate change, it may not directly apply to fisheries management. Though financial assistance and/or technology transfer is sometimes reflected in fishery agreements, there is no express mention of the differentiation between developing and developed countries in fisheries agreements. It would be interesting to see whether it would be applicable to fishery management in future.

Besides the above legal principles, other principles used for climate change can be used for fisheries management, such as best management practices and ecosystem-based management. The general principle of cooperation applies to both sectors. To examine the applicability of these principles in the context of climate change, a case study is observed in the following section.

### **3. Existing Fisheries Agreements**

The case study is focused on the fishery agreement between China and Japan, a bilateral agreement in international law. As we know, both China and Japan border the East China Sea, where fishermen from both countries have operated since ancient times. Before the establishment of official diplomatic ties between the two countries, non-governmental fishery agreements were signed in 1955, 1963, and 1965.

Following the establishment of diplomatic ties, the two countries started their consultations on a governmental fishery agreement. The fishery agreement between the Government of the People's Republic of China and the Government of Japan was finally signed on 15 August 1975, and came into force on 23 December 1975 [39]. The 1975 Agreement was revised twice, in 1978 and in 1985 [19]. Although the 1975 agreement introduced more rigid protective measures than the non-governmental agreements, it was largely the same as the non-governmental ones.

The entry into force of the LOSC in 1994 ushered in a new era of fishery relations between China and Japan. Both countries established their EEZs based on the relevant provisions of the LOSC, as well as on their respective domestic legislations. Since the broadest width of the East China Sea is less than 400 nm, the whole sea area became EEZs that were shared by China, Japan and Korea. The fishery relationship between the two sides inevitably needed a new adjustment. After several rounds of negotiation, the two sides finally reached agreement in September 1997 regarding fishery management in the East China Sea [40]. The new agreement came into force on 1 June 2000.

The agreement contains some significant provisions in response to the changed situation. (a) the agreement contains as one of its purposes the establishment of a new fishery order in accordance with the LOSC, conserving and utilizing rationally marine living resources of common concern, and maintaining the normal operation order at sea. Both sides agreed to cooperate to conduct scientific research in fishery and to conserve marine living resources [39]. Each should adopt necessary measures to ensure compliance by their nationals and fishing boats with the provisions of the fishery agreement and the conservation measures and other conditions provided for in the relevant laws and regulations of the other party when they are engaged in fishery activities in the other's EEZ, and should inform each other of such conservation measures and other conditions provided for in its relevant laws and regulations [39]. (b) providing reciprocal fishing rights: the agreement

applies to the EEZs of both countries. However, this does not include all the EEZs, as the agreement excludes the EEZ area south of 27 ◦N, and west of 125◦300 E in the East China Sea, where Taiwan and the disputed Diaoyu/Senkaku Islands are located. Within the EEZ, China and Japan give each other's nationals and fishing boats the right to fish in each other's EEZs, pursuant to the principle of reciprocity, the fishery agreement and their relevant domestic laws and regulations. The competent authorities of each party issue fishing permits to nationals and fishing boats of the other party, and may levy appropriate fees on the issuance of such permits. (c) Establishing the provisional measures zone (PMZ). For the conservation and quantity of fishery resources in the PMZ, both sides should adopt, based on decisions made by the Sino-Japanese Fishery Joint Committee, appropriate management measures in order to protect marine living resources from the harm of being overexploited. Each party should take administrative and other necessary measures for its nationals and fishing boats fishing in the PMZ, and should not impose administrative and other measures on nationals and fishing boats of the other party in this water area. The establishment of a common fishery zone is a typical form of fishery cooperation for shared waters between any two countries. Though there are many examples in the world, what is new is that the PMZ was the first such zone between China and Japan. It indicates that the fishery cooperation between these two countries had entered into a new era. (d) In order to implement the fishery agreement as well as to coordinate respective fishery management procedures, both sides decided to establish the Joint Fishery Committee which consists of four members, two of whom are appointed by each party. The decision-making mechanism is based on the unanimous consent of the committee members [39].

From the above, we can see that the latest fishery agreement between China and Japan is a positive response to the LOSC without considering any factor of climate change, and although some conservation measures provided for in the agreement are indirectly related to the climate change regime/law. A similar legal phenomenon also exists in domestic legislation in fisheries management. For example, the 1976 Magnuson–Stevens Fishery Conservation and Management Act (MSA) was amended in 1996 and 2006 with an increased conservation focus that strengthened the role that science should play in decision-making, but "no explicit mention of climate change or particular level of scientific certainty is required by the legislation" [19].

The Arctic experienced major melts in 2007 and 2012, and has seen a general trend of decline in ice thickness and extent. In 2017, Arctic ice hit a record winter low for the third year in a row. Ice-free waters, combined with the general warming trend, have brought new species to Arctic waters, e. g. the snow crab moving into Svalbard's waters [8]. The increased presence and availability of commercial species may encourage a new competitive race to fish in Arctic waters. Acknowledging the Arctic ocean systems have been changed "due to climate change and other phenomena, and that the effects of these changes are not well understood" [41], five bordering countries (Canada, Denmark [Greenland], Norway, the Russia Federation, and the United States of America) and other possible fishing countries (China, Iceland, Japan, the Republic of Korea, and the European Union) concluded the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, agreeing to a fishing ban for the next 16 years to give scientists time to understand the region's marine ecology and the potential impacts of climate change before fishing becomes widespread [13]. The climate change factors have been considered in the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean maybe a positive start, but there is no specific provision directly related to climate change in this agreement.

Therefore, it is worth examining some of the latest fishery agreements to see whether the climate factor has been considered. In addition to bilateral fisheries agreements, climate change could be a necessary element in the future making of fisheries law at international, regional (North Pacific), bilateral, or even domestic levels. Towards that direction, future fishery agreements should not only apply the legal principles mentioned above, but also introduce more specific measures in response to climate change, such as reduction of

emissions from fishing vessels; improvement of fuel efficiency; and reduction of yields and increase of yield variability.

### **4. Regional and National Efforts for Climate Resilience in Fisheries**

Regional Fisheries Management Organizations (RFMOs) are international organizations that serve as fora for the establishment, implementation, and enforcement of legally binding management and conservation measures for fishing. Many RFMOs are established under international conventions and have the authority to adopt legally binding provisions with regard to the conservation and management of fish stocks. Recognizing climate change and its impacts on the environment and fishery resources, several RFMOs and many states take efforts for climate resilience in fisheries.

Environmental changes driven by climate change are further compounded by local habitat changes in salmon freshwater ecosystems. The Big Bar landslide on the Fraser river is particularly concerning, as it has blocked upstream access to critical sockeye, chinook, and coho spawning areas since 2019, and the changing ocean conditions may be further influenced by increases in salmon numbers rearing in the North Pacific [42]. The Working Group on Salmon Marking (WGSM) of the North Pacific Anadromous Fish Commission (NPAFC) developed a high-seas otolith mark recovery database that would complement the existing mark release database and provide researchers with data that could be used to assess returns across each species range, validate genetic stock identifications, establish migration patterns, infer impacts of climate change and carrying capacity, and make inferences about inter- and intra-species population dynamics [42]. Meanwhile, the member states also take action to deal with climate change in their fishery management. For example, the Korean 2020 research plan involves investigations of mortality and climate change effects on salmon to reveal the mechanisms of mass mortality of chum salmon during their early life in rivers and coastal areas in conjunction with return rate fluctuations [42]. Russia plans to conduct surveys in the northwestern Pacific Ocean, Okhotsk, and Bering Seas, and the information from surveys will be used to improve the understanding of how climate change will affect Pacific salmon production and ecosystems of the far eastern seas and adjacent Pacific waters [42].

States in the Asia-Pacific Fishery Commission (APFIC) region have made wide-ranging efforts with respect to climate change adaptation and mitigation, include climate-smart fisheries for sustainable food security, climate resistant fisheries products, climate-smart management practices. For example, Bangladesh has climate change-resilient fisheries in its development plan. Several countries, including Cambodia, Malaysia, Nepal, and the Philippines, are working to establish community-targeted early-warning and notification systems regarding climate changes [43].

It is also to note that cooperation among states is important to deal with the impact of climate change on fisheries, such as sharing data and information. In this regard, the South East Atlantic Fisheries Organization (SEAFO) has taken steps to enter into co-operation agreements with other RFMOs, such as CCAMLR, on collecting data and information that could be used to study the impact of climate change on the marine ecosystems [44].

### **5. Remaining Issues**

Due to the complexity of international governance for fishery management and climate change, there are considerable pending issues to be sorted out. First is the impact of carbon storage on fisheries and how we should regulate it. Certain climate mitigation and adaptation measures may have significant impacts on the marine environment. For instance, carbon capture and storage (CCS), touted as a mitigation technology that could lead to deep emission reductions, could also if the technology is mishandled and/or mismanaged lead to significant leakage of stored CO<sup>2</sup> occurs to the ocean [15]. Climate geo-engineering is a problem of a similar nature.

The Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter adopted in 1996 created, in a 2007 amendment, a new category

in the Annex 1 list of wastes and other matter that may be considered for dumping, thereby allowing for the storage of CO<sup>2</sup> in sub-seabed geological formations [15]. The parties to the 1996 Protocol adopted a "Risk Assessment and Management Framework for CO<sup>2</sup> Sequestration in Sub-Seabed Geological Structures (CS-SSGS)" as well as "specific guidelines for assessment of carbon dioxide streams for disposal into sub-seabed geological formations." The 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) adopted a similar amendment to allow carbon storage in geological formations under the seabed, complemented by guidelines adopted by the OSPAR Commission [15]. It remains unknown whether these regulations are adequate, particularly in the context of the conservation of marine biological resources including fisheries, and whether the lawmakers considered the impact of such activities on fisheries.

Second, but not last, is the linkage of livelihood of the coastal communities and fisheries management in the context of climate change. It is advocated to increase the use of marine protected areas as a climate change adaptation strategy in threatened marine ecosystems [45]. This is no doubt a positive call, but such more establishments may affect fishing communities and their livelihoods. The case registered with the Permanent Court of Arbitration concerning the Matter of the Chagos Marine Protected Area between Mauritius and the United Kingdom (2010–2015) is illustrative. In the case, Mauritius challenges the United Kingdom's establishment of a Marine Protected Area (MPA) around the Chagos archipelago, which extends to a distance of 200 nautical miles from the baselines of this archipelago and covers an area of more than half a million square kilometers [46]. One of the legal challenges from Mauritius is that "the MPA is fundamentally incompatible with the rights and obligations provided for by the Convention, including the fishing rights of Mauritius in regard to the Chagos Archipelago and its surrounding waters" [46]. The above dispute shows that it is necessary to consider the needs and interests of local fishing communities while any environmental protection measure is put in place.

### **6. Conclusions**

The International Bar Association, in 2014, released a detailed report on the role of international law in addressing climate change and advocates the concept of climate justice [47]. Climate justice implies the recognition that climate change is a matter of human rights and development, and also that the victims of global warming are not responsible for it [48]. Climate justice also means sharing responsibility [48]. As Mary Robinson states, "the only solution to climate change are fair solutions that protect human rights and uphold the rule of law" [48]. In terms of fishery management and the fishery legal regime, it is certainly the time for policy/law makers to accommodate the climate change considerations into the process of fishery policies and fishery laws, whether international, regional, or domestic. This paper has argued that, first, some fundamental principles of international law should be applicable to future fisheries regulation, no matter whether it is multilateral, regional, bilateral, or national; and second, that climate change factors should be seriously considered in the concluding of future fishery agreements. With this in mind, human mankind may realize climate justice for present and future generations.

**Funding:** It is acknowledged that this paper is part of a research project funded by China's National Social Sciences Foundation (18VHQ002).

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** The data presented in this study are openly available in website, reference number.

**Acknowledgments:** The author expresses his gratitude to Lei Zhang for her assistance during the revising process of the paper.

**Conflicts of Interest:** The author declares no conflict of interest.

### **References**


### *Article* **Global Fisheries Management and Community Interest**

**Lei Zhang**

Department of Law, Shandong University of Science and Technology, Qingdao 266590, China; skd996063@sdust.edu.cn; Tel.: +86-156-2116-0628

**Abstract:** The conservation of fishery resources is a common interest of the international community. In the 1990s, the global fisheries management system was formed based on the 1982 United Nations Convention on the Law of the Sea (LOSC). In order to achieve sustainable fisheries management, the international community also adopted a series of legally binding and non-binding policy instruments for the implementation of the global fisheries regime. The regional institutional framework was strengthened and expanded to offer broad coverage worldwide. Based on the analysis of the global fisheries management system, the article concludes that the current legal and policy instruments collectively provide a comprehensive framework for global fisheries management, but there still exist limits in addressing the challenges of fishery resources today. More effective implementation of the current legal system through better cooperation among States, as well as efficient coordination within and between national, regional and global institutions, is required.

**Keywords:** fishery resources; community interest; sustainable development; international cooperation

**Citation:** Zhang, L. Global Fisheries Management and Community Interest. *Sustainability* **2021**, *13*, 8586. https://doi.org/10.3390/su13158586

Academic Editors: Keyuan Zou and Yen-Chiang Chang

Received: 29 June 2021 Accepted: 27 July 2021 Published: 31 July 2021

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2021 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

### **1. Introduction**

For centuries, the international legal order had been developed with a relatively stable set of rules, mainly ensuring the respect of state sovereignty, but in the past few decades, there has been a shift in the focus of certain social relations between States [1] (p. 268). This has led to changes in international law, which has a number of new concepts to indicate the common interest in upholding human values or protecting common goods. For example, the Convention on Biological Diversity (CBD) affirms that "the conservation of biological diversity is a common concern of humankind" [2] (para. 3 of Preamble); the United Nations Framework Convention on Climate Change (UNFCCC) acknowledges that "the change in the Earth's climate and its adverse effects are a common concern of humankind" [3] (para. 1 of Preamble); the WTO law protects the community interest of promoting an essentially rule-based and fair world market, and the law of state responsibility reacts to serious breaches of common interests in human rights and humanitarian assistance.

The term "community interest" is not particularly clear and the great variation in its meaning, across regimes and even within each of them, can affect their identification in international law [4] (p. 38). However, there are two basic dimensions. Firstly, community interests are "common". These interests always correspond to the category of "public good" as defined in economics and are characterized by the fact of being "non-excludable". Any attack on the public good will necessarily affect the enjoyment of its benefits by all members of the community [4] (p. 39). The commonality of these common interests usually translates into the collective identity of their holders and/or bearers—that is, a "community", and, when the latter is universal, the "international community" [4] (p. 39). With the second dimension, the "community interest" leads to the consequence that all members of the international community as a whole have an interest in the protection of the common interests [5] (p. 332). The need to safeguard community interests triggered the generation of the concept of sustainability, which has been a feature in international legal relations for a long time [6].

Fishery resources are of great importance for food security and nutrition, economic growth through fish production and trade, as well as poverty alleviation and the creation of employment opportunities in the international community. According to a report published by the Food and Agriculture Organization (FAO), fish accounted for approximately 17% of animal protein consumed by the global population and provided approximately 3.3 billion people with almost 20% of their average per capita intake of animal protein in 2017 [7] (p. 67). In 2016, approximately 39 million people were engaged in the primary sector of capture fisheries [7] (p. 7). In the past, there were grounds for believing that fishery resources were limitless and could be exploited without loss to anyone else. However, biological, environmental, anthropological and many other factors have caused the situation to change. For example, overfishing and illegal, unreported and unregulated fishing (IUU fishing) are the main human factors and the adverse impact of climate change is difficult to underestimate.

In order to achieve the sustainability of fishery resources, it is important to pursue proper conservation policies towards the prevention of the exhaustion of these resources. The international response to the growing depletion of the world's fish stocks and the degradation of their habitats has been through the elaboration and adoption of three types of instruments. First, global fisheries treaties were adopted to address the conservation and management of fish stocks. Second, international voluntary instruments were adopted to promote a framework of principles and standards for responsible fisheries. Third, the regional institutional framework for the management of fishery resources was strengthened and expanded in coverage.

### **2. Main Threats to Global Fisheries**

IUU fishing [8] as well as the environmental impact of climate change and marine pollution are major challenges to the sustainable development of fishery resources today. According to the annual report of the FAO, global capture fisheries production was 96.4 million tons in 2018, and fisheries in the ocean provided 87.5% of the global total [7] (p. 6).

Overfishing and destructive fishing practices are recognized as the main threat to marine biodiversity in the areas within and beyond national jurisdiction (ABNJ) [9]. The adverse effects of fishing activities on the marine ecosystem mainly come from the overutilization of marine biological resources. When the degree of utilization of a certain biological population exceeds its maximum sustainable yield, it will cause the decline or even exhaustion of the targeted stocks and bycatch species, especially some species that are more susceptible to fisheries, such as marine mammals, sharks, turtles and seabirds, etc. [10] (p. 66). Overfishing not only has negative ecological consequences, but also reduces fish production in the long term, which subsequently has negative social and economic consequences. The world's marine fisheries had 34.2% of stocks classified as overfished in 2017 [7] (p. 54). It is estimated that rebuilding overfished stocks could increase fishery production by 16.5 million tons, which would certainly increase the contribution of marine fisheries to the food security and wellbeing of coastal communities [11] (p. 174).

The international community also recognizes IUU fishing as a major threat to the sustainability of fishery resources, to the livelihoods of the people that depend on them and to food security and marine ecosystems [8] (para. 1). It is well known that IUU fishing has escalated in the past 20 years, and it is found in all types and dimensions of fisheries, representing 20% of total catches per year, and undermines national and regional efforts to manage fisheries sustainably [12] (p. 12). Addressing IUU fishing and its impacts continues to be an essential part of fisheries governance. This issue is especially critical in developing countries, which lack the capacity and resources for effective monitoring, control and surveillance [13] (p. 82). Strong political will and concerted action by flag States, port States, coastal States and market States are required [13] (p. 82).

The ocean has absorbed 93% of the extra heat arising from the enhanced greenhouse effect [14] (p. 1). Given the essential role that the temperature plays in the biology and ecol-

ogy of marine organisms, the speed of isotherm migration ultimately determines the speed at which populations must move, adapt or acclimate to changed sea temperatures [15] (p. 1667). Shifts in the distribution and abundance of large pelagic fish stocks will have the potential to create "winners" and "losers" among island States as catches of the transboundary fish stocks change among and within their exclusive economic zones (EEZs) [15] (p. 1702). For example, there has been an increase in fish stocks of warmer-water species near the Taiwan Strait, which were historically distributed throughout the South China Sea, partly as a result of warming conditions [15] (p. 1686). This is very likely to continue, although some fish stocks will eventually decline [15] (p. 1660). The ocean has also absorbed approximately 30% of atmospheric CO<sup>2</sup> from human activities, which results in decreased ocean pH and carbonated ion concentrations and increased bicarbonate ion concentrations—that is, ocean acidification [15] (p. 1673). These two changes may exacerbate the existing overfishing and IUU fishing indirectly and challenge the sustainability of capture fisheries and aquaculture development.

The threats to fishery resources represent a potentially irreversible threat to human communities and thus require the widest possible cooperation by all States and their participation in an effective and appropriate response. To avert some of the worst impacts of fishery degradation and to realize sustainable development, the international community has taken actions, i.e., cooperation through global or regional agreements, as well as resolutions and declarations, on sustainable fisheries and marine ecological environment protection.

## **3. Protection of Community Interests in the Global Fisheries Management System**

*3.1. Basic Legal Framework of Fisheries Management: The 1982 LOSC*

The LOSC provides a general legal framework for all kinds of activities in the seas and oceans. The preamble of the LOSC explicitly recognizes its aim of promoting the conservation of marine living resources, including fishery resources [16] (para. 4 of Preamble), and it established a basic framework for international cooperation in this field. There are two approaches applied for the conservation of the fishery resources in the LOSC, namely the zonal management approach and the species-specific approach.

### 3.1.1. Zonal Management Approach

Based on the LOSC, the ocean is divided into different zones within national jurisdiction, e.g., internal waters, territorial seas, exclusive economic zones and continental shelves, and areas beyond national jurisdiction, such as high seas. The LOSC governs human activities in the ocean according to the legal category of marine spaces, which is referred to as the "zonal management approach" [17] (p. 295). Under this approach, different rules apply to the conservation of marine living resources according to different jurisdictional zones.

In the areas within national jurisdiction, marine living resources are the important food supplies and mainstay of economy for coastal States. The coastal States not only enjoy the rights of exploring and exploiting the marine living resources, but also shoulder the responsibility of conserving and managing these resources [16] (Art. 61). It is estimated that approximately 90% of all commercially exploitable fish stocks are caught within 200 miles of the coast [18] (p. 162). For the conservation of living resources, the coastal States are required to ensure, through proper conservation and management measures, that the maintenance of living resources in the EEZ is not endangered by over-exploitation [16] (Art. 61). According to the LOSC, a coastal State shall determine the allowable catch of the living resources in its EEZ [16] (Art. 61) and determine its capacity to harvest the living resources of the EEZ; where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements, give other States access to the surplus of the allowable catch [16] (Art. 62). The second obligation, i.e., optimum utilization, reflects the 1970s' concern of distant water fishing States that coastal States would drastically limit utilization of the fishery resources newly enclosed

in their fisheries zones [19] (p. 6). Therefore, these States argued that it was necessary to establish an international obligation for the coastal States to ensure their utilization. Consequently, the coastal States are required to determine their capacity to harvest the living resources of the EEZ. However, the mechanism on the basis of the allowable catch presents considerable difficulties. For example, reliable scientific data are a prerequisite for allowable catch determination, while the data collection and analysis are complicated and costly; sometimes, it is difficult for developing countries to fulfill this obligation properly [18] (p. 283).

While the high seas are open to all States, every State enjoys the freedom of fishing [16] (Art. 87). At the same time, every State needs to adopt with respect to its national measures as well as cooperate with other States for the conservation of the living resources on the high seas [16] (Arts. 117, 118). Fishing on the high seas, to some degree, should rather be regarded as a privilege predicated on adherence to certain rules, not an absolute freedom [20] (p. 231). Increasing restrictions for the freedom of fishing on the high seas is a tendency, particularly in the LOSC, the United Nations Agreement for the Implementation of the Provisions of the 1982 LOSC relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement) and regional fisheries management agreements.

The conservation of fishery resources involves both national interests and international community interests at the same time [5] (p. 364). Cooperation among States is one of the essential elements in the legal regime of high seas fisheries under the LOSC, and Article 117 requires "all States" to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas. Article 118 imposes upon States to cooperate with each other in the "conservation and management" of living resources in the areas of the high seas, and further requires States to cooperate as appropriate to establish sub-regional or regional fisheries organizations to this end.

### 3.1.2. Species-Specific Approach

The LOSC also adopts the species-specific approach to the conservation of marine living resources, under which conservation measures are to be determined according to specific categories of marine species such as shared fish stocks, straddling fish stocks, highly migratory species, marine mammals, anadromous stocks, catadromous species and sedentary species [16] (Arts. 63–68, 120). In order to implement the LOSC provisions, the Fish Stocks Agreement was adopted to provide a framework for cooperation in the conservation and management of straddling and highly migratory species [21]. The objective of the Fish Stocks Agreement is to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the LOSC [22] (Art. 2). This objective is achieved through the incorporation of a number of key State obligations, such as assessment of the impacts of fishing, other human activities and environmental factors on target stocks and ecologically related species or dependent or associated stocks; implementation and enforcement of conservation and management measures through effective monitoring, control and surveillance; and application of the ecosystem approach and precautionary approach [22].

The Fish Stocks Agreement reinforced States to cooperate with other States directly or through appropriate regional fisheries management organizations (RFMOs) or arrangements for the conservation and management of straddling fish stocks and highly migratory fish stocks, including cooperation for the establishment of new RFMOs where none exist in a particular region or sub-region [22] (Art. 8). States having a real interest in the fisheries concerned are encouraged by the Fish Stocks Agreement to become members of such RFMOs. It also provides that only States that are members of an RFMO, or those that agree to apply the conservation and management measures established by such an organization or arrangement, shall have access to the fishery resources to which the measures apply [22] (Art. 8).

In general, the LOSC provides a basis for fisheries cooperation and legal certainty. As the most comprehensive codification of the international law of the sea so far, the LOSC has become the foundation of the international governance system for the conservation of fishery resources, with the strong support of the United Nations system. In general, the LOSC provides a basis for fisheries cooperation and legal certainty. As the most comprehensive codification of the international law of the sea so far, the LOSC has become the foundation of the international governance system for the conservation of fishery resources, with the strong support of the United Nations system.

none exist in a particular region or sub-region [22] (Art. 8). States having a real interest in the fisheries concerned are encouraged by the Fish Stocks Agreement to become members of such RFMOs. It also provides that only States that are members of an RFMO, or those that agree to apply the conservation and management measures established by such an organization or arrangement, shall have access to the fishery resources to which

#### *3.2. FAO's Efforts in the Global Fisheries Management 3.2. FAO's Efforts in the Global Fisheries Management*

the measures apply [22] (Art. 8).

*Sustainability* **2021**, *13*, 8586 5 of 17

As the primary management agency for marine fisheries, the FAO attaches great importance to the construction of sustainable fisheries. It has formulated and issued many fishery regulations, such as the Code of Conduct for Responsible Fisheries, Agreement on Port State Measures to Prevent, Deter and Eliminate IUU Fishing (PSMA) and a series of International Plan of Action (IPOAs) with regard to fishing issues, e.g., the International Plan of Action for the Management of Fishing Capacity and the International Plan of Action to Prevent, Deter and Eliminate IUU Fishing (IPOA-IUU). These instruments have played a key role in the conservation of marine fishery resources. As the primary management agency for marine fisheries, the FAO attaches great importance to the construction of sustainable fisheries. It has formulated and issued many fishery regulations, such as the Code of Conduct for Responsible Fisheries, Agreement on Port State Measures to Prevent, Deter and Eliminate IUU Fishing (PSMA) and a series of International Plan of Action (IPOAs) with regard to fishing issues, e.g., the International Plan of Action for the Management of Fishing Capacity and the International Plan of Action to Prevent, Deter and Eliminate IUU Fishing (IPOA-IUU). These instruments have played a key role in the conservation of marine fishery resources.

#### 3.2.1. Code of Conduct for Responsible Fisheries (FAO Code) 3.2.1. Code of Conduct for Responsible Fisheries (FAO Code)

In March 1991, the FAO Committee on Fisheries called for the development of new concepts for responsible, sustained fisheries. The FAO Code was drafted, negotiated and adopted by FAO member States to serve this purpose. It served as the basis for the development of the ecosystem approach to fisheries. This approach provides a framework for considering not only the ecological but also the social and economic aspects of sustainability and the governance context in which the fisheries sector operates [7] (p. 142). According to the data from the questionnaire on the implementation of the FAO Code sent every two years to all FAO member States, the percentage of States adopting an ecosystem approach to fisheries or a similar approach increased from 69% in 2011 to 79% in 2015 [13] (p. 82). However, the level of adoption varies among regions (see Figure 1). In March 1991, the FAO Committee on Fisheries called for the development of new concepts for responsible, sustained fisheries. The FAO Code was drafted, negotiated and adopted by FAO member States to serve this purpose. It served as the basis for the development of the ecosystem approach to fisheries. This approach provides a framework for considering not only the ecological but also the social and economic aspects of sustainability and the governance context in which the fisheries sector operates [7] (p. 142). According to the data from the questionnaire on the implementation of the FAO Code sent every two years to all FAO member States, the percentage of States adopting an ecosystem approach to fisheries or a similar approach increased from 69% in 2011 to 79% in 2015 [13] (p. 82). However, the level of adoption varies among regions (see Figure 1).

**Figure 1.** Percentage of States adopting ecosystem approach to fisheries/similar ecosystem approaches at the regional level. Source: FAO questionnaire on the implementation of the Code of Conduct for Responsible Fisheries, 2015 data. **Figure 1.** Percentage of States adopting ecosystem approach to fisheries/similar ecosystem approaches at the regional level. Source: FAO questionnaire on the implementation of the Code of Conduct for Responsible Fisheries, 2015 data.

A key problem of the FAO Code is its non-binding nature, which impedes its effectiveness due to the lack of legal force. However, it was incorporated into several important legally binding agreements, such as the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Compliance Agreement) [23] (Art. 1.1). Recognizing the vulnerability inherent in such a management scheme, the FAO Compliance Agreement demands that A key problem of the FAO Code is its non-binding nature, which impedes its effectiveness due to the lack of legal force. However, it was incorporated into several important legally binding agreements, such as the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Compliance Agreement) [23] (Art. 1.1). Recognizing the vulnerability inherent in such a management scheme, the FAO Compliance Agreement demands that party States "cooperate in a manner consistent with this Agreement and with international law" to prevent non-party States from undermining the FAO Compliance Agreement [24] (Art. 8).

### 3.2.2. IPOA-IUU

The IPOA-IUU was adopted by consensus at the 24th Session of the FAO Committee on Fisheries on 2 March 2001, and it was the first global instrument to introduce the

expression of IUU fishing [8] (para. 3). Like the FAO Code, the IPOA-IUU is also a non-binding instrument. It was conceived as a comprehensive toolbox, which is a full range of tools that are available for use in a number of different situations to combat IUU fishing [25]. The commitments that FAO members have made under the IPOA-IUU, e.g., to enact national legislation to address all aspects of IUU fishing; to implement flag States' responsibility [26]; to implement monitoring, control and surveillance (MCS) measures; cooperative investigation of IUU fishing, expertise and technology exchange; harmonization of national measures and co-operation of MCS efforts; and to develop National Plans of Action (NPOAs) as soon as possible but no later than three years after the approval of the IPOA-IUU to achieve the objectives of the IPOA-IUU to full effect [24] (p. 14).

While the "hold all" terms of IUU fishing are stipulated in the IPOA-IUU, the range of measures available to non-flag States has been controversial [25]. In addition, there are ambiguities in the scope of unregulated fishing against which States can take action, such that certain unregulated fishing is not considered to be in violation of applicable international law and does not require the application of the measures envisaged under the IPOA-IUU [8] (para. 3.4). Faced with ambiguities in the scope of unregulated fishing, States other than the flag State might hesitate in taking necessary measures allowed under the IPOA-IUU.

### 3.2.3. PSMA

A major achievement in the global effort to combat IUU fishing, the binding FAO Agreement on PSMA, entered into force on 5 June 2016. The agreement provides an opportunity for States to collaborate and exchange information on fishing vessels and their activities, which can also be done through and with RFMOs. It creates a network that supports port States in combating IUU fishing, flag States in the control of their vessels, coastal States in protecting their fishery resources and market States in ensuring that products derived from IUU fishing do not enter their markets [27].

The PSMA sets conditions for the entry and use of ports by foreign fishing vessels [27]. It defines minimum international standards to be applied by port States in reviewing information prior to the vessels' entry into port; conducting inspections in their designated ports; taking measures against vessels found to have engaged in IUU fishing; and exchanging information with concerned States and international entities [27]. Inspection and compliance records of fishing vessels compiled through the information exchange mechanism under the PSMA could serve as a reliable resource for inclusion in national risk assessments and could help States to take appropriate action in cases of non-compliance with national, regional or international laws and regulations, including the prohibition or freezing of subsidies by the flag States concerned [13] (p. 98).

The global implementation of the PSMA would effectively establish "compliance checkpoints" at ports around the world for a large number of fishing vessels, especially those that operate in waters outside the jurisdiction of the flag State and seek entry into ports of other States. It is remarkable that the recognition of the requirements of developing States (developing States constitute the majority of parties and the majority of coastal States globally) is crucial, and parties of the PSMA emphasized the development of a framework to support developing States in their implementation of the agreement. A dedicated working group is tasked with addressing the requirements of developing States' parties, including the administration of required funding to support capacity development efforts [28].

After the PSMA entered into force, some notable achievements have already been made. At the national level, a number of States made efforts, such as updating relevant legislation and increasing port inspection capacity, to implement the PSMA. At the regional level, the number of RFMOs that have adopted conservation and management measures regarding IUU fishing, and more specifically regarding port State measures, has continued to increase. Achievements in combating IUU are expected to grow with the increased uptake and implementation of the PSMA and as the global commitment to combat IUU fishing continues to build.

### *3.3. New Developments of Regional Institutional Approach for Fisheries Management on the High Seas*

RFMOs are international organizations that serve as fora for the establishment, implementation and enforcement of legally binding management and conservation measures for fishing. RFMOs are currently the only legally mandated fisheries management bodies on the high seas, and States' commercial fishing fleets must abide by RFMOs' regulations in order to fish in these areas [29]. Many RFMOs are established under international conventions and have the authority to adopt legally binding provisions with regard to the conservation and management of fish stocks, and almost all of the high seas on Earth are now covered by at least one RFMO (see Appendix A) [30] (p. 1036).

The functions of RFMOs include the collection, analysis and dissemination of fisheries information, statistics and data; the establishment, implementation and regulation of conservation and management measures to ensure the long-term sustainability of fish stocks; the adoption of decision-making procedures; the establishment of monitoring, control, surveillance and enforcement measures and the adoption and establishment of participatory rights, etc. [22] (Art. 10). Like any international organizations, RFMOs' success in managing and conserving the resources under their jurisdiction depends on the political will of their member States [31] (p. 17).

The LOSC does not provide any information as to the role and mandate of RFMOs, while the Fish Stocks Agreement empowers RFMOs by giving them the mandate to fully conserve and manage highly migratory and straddling fish stocks under their area of competence and by imposing more stringent obligations on States. Under the Fish Stocks Agreement, only member States of these RFMOs are entitled to access the fishery resources under the organization's management [22] (Arts. 8, 17), but non-parties to the Fish Stocks Agreement have access to them under the freedom of fishing that is applicable on the high seas as they cannot be bound by a treaty to which they have not agreed to be bound. RFMOs have attempted to control activities by non-party vessels by giving incentives for cooperation, such as drawing the attention of non-parties to the activities of their vessels in the regulatory area of RFMOs [22] (Art. 17).

Current progress at the regional level has shown that in order to realize the conservation and sustainable use of biodiversity on the high seas, regional cross-institutional cooperation through coordinated efforts is necessary. The need for States and institutional cooperation both at the international and regional levels has been further highlighted in the UNGA Resolutions on Oceans and the Law of the Sea and in the Ad Hoc Open-Ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction (BBNJ Working Group) reports [32]. In this respect, cooperation and coordination between RFMOs and regional seas organizations in regional ocean governance is a new trend. The Collective Arrangement between the Protection of the Marine Environment in the North-East Atlantic (OSPAR) Commission and the North-East Atlantic Fisheries (NEAFC) Commission is a good example of such inter-institutional collaboration. The contracting parties adopted a stepped approach, starting with opening dialogues and mutual exchanges to learn about each other's mandates and activities through the cooperation ladder (Figure 2) [33].

eration ladder (Figure 2) [33].

mutual exchanges to learn about each other's mandates and activities through the coop-

**Figure 2.** The cooperation ladder of OSPAR Commission and NEAFC Commission. Source: UNEP. Realizing Integrated Regional Oceans Governance—Summary of Case Studies on Regional Cross-Sectoral Institutional Cooperation and Policy Coherence. Regional Seas Reports and Studies **Figure 2.** The cooperation ladder of OSPAR Commission and NEAFC Commission. Source: UNEP. Realizing Integrated Regional Oceans Governance—Summary of Case Studies on Regional Cross-Sectoral Institutional Cooperation and Policy Coherence. Regional Seas Reports and Studies No. 199.

No. 199. As mentioned above, the need for cooperation between RFMOs and organizations that deal with the management of human activities in other sectors rises rapidly. Global guidance is available to ensure that area-based management tools, including the marine protected areas (MPAs), is integrated within broader fisheries management frameworks As mentioned above, the need for cooperation between RFMOs and organizations that deal with the management of human activities in other sectors rises rapidly. Global guidance is available to ensure that area-based management tools, including the marine protected areas (MPAs), is integrated within broader fisheries management frameworks and follows good practices with regard to participatory approaches [13] (p. 80).

and follows good practices with regard to participatory approaches [13] (p. 80). MPAs are vital to the sustainable development of oceans. They safeguard vulnerable species and ecosystems, conserve biodiversity and avert potential conflicts among users by delineating specific allowed activities [34]. A number of international policy instruments have recently been established in support of MPAs. For example, Aichi Target 11 [35] and Sustainable Development Goals (SDG) Target 14.5 [36], in particular, aimed for the designation of 10% of coastal and marine waters as protected areas by 2020. According to the 2020 SDG Report, over 17% (or 24 million square kilometers) of waters within national jurisdiction were covered by protected areas by the end of 2019 [37] (p. 60). The global mean percentage of each marine key biodiversity area covered MPAs are vital to the sustainable development of oceans. They safeguard vulnerable species and ecosystems, conserve biodiversity and avert potential conflicts among users by delineating specific allowed activities [34]. A number of international policy instruments have recently been established in support of MPAs. For example, Aichi Target 11 [35] and Sustainable Development Goals (SDG) Target 14.5 [36], in particular, aimed for the designation of 10% of coastal and marine waters as protected areas by 2020. According to the 2020 SDG Report, over 17% (or 24 million square kilometers) of waters within national jurisdiction were covered by protected areas by the end of 2019 [37] (p. 60). The global mean percentage of each marine key biodiversity area covered by protected areas increased from 30.5% in 2000 to 46.0% in 2019, but the majority of these sites still have incomplete or no MPA coverage [38].

by protected areas increased from 30.5% in 2000 to 46.0% in 2019, but the majority of these sites still have incomplete or no MPA coverage [38]. The protection and conservation measures taken in MPAs include prohibition of, or restrictions on, navigation, dumping, fishing activities, seabed exploration, landbased pollution and access for tourism. In so-called "no take" zones, all forms of exploitation are prohibited. For example, in the South Orkney Islands Southern Shelf MPA, all types of fishing activities shall be prohibited within the defined area, with the exception of scientific fishing research activities agreed by the Commission for monitoring or other purposes on advice from the Scientific Committee [39] (Art. 2). The benefits of setting "no take" zones include maintenance of or an increase in fisheries productivity, maintenance of biodiversity and stock structure and protection of habitats [40] (p. 52). However, it is important to recognize that while MPAs have positive effects on biodiversity inside "no-take" zones, efforts to secure the sustainability of fishery resources must build on a wider range of natural resource management interventions. Implemented in isolation, MPAs can result in the shifting of fishing pressure to areas that lack such management measures, or may have significant impacts on the livelihoods and food security of fisheries dependent communities [13] (p. 102). To avoid the negative consequences, MPAs should be combined with other management measures that control fishing effort outside the protected areas. Hence, MPAs must be an integral part of overall fisheries management plans and should not be viewed as a stand-alone fisheries management The protection and conservation measures taken in MPAs include prohibition of, or restrictions on, navigation, dumping, fishing activities, seabed exploration, land-based pollution and access for tourism. In so-called "no take" zones, all forms of exploitation are prohibited. For example, in the South Orkney Islands Southern Shelf MPA, all types of fishing activities shall be prohibited within the defined area, with the exception of scientific fishing research activities agreed by the Commission for monitoring or other purposes on advice from the Scientific Committee [39] (Art. 2). The benefits of setting "no take" zones include maintenance of or an increase in fisheries productivity, maintenance of biodiversity and stock structure and protection of habitats [40] (p. 52). However, it is important to recognize that while MPAs have positive effects on biodiversity inside "notake" zones, efforts to secure the sustainability of fishery resources must build on a wider range of natural resource management interventions. Implemented in isolation, MPAs can result in the shifting of fishing pressure to areas that lack such management measures, or may have significant impacts on the livelihoods and food security of fisheries dependent communities [13] (p. 102). To avoid the negative consequences, MPAs should be combined with other management measures that control fishing effort outside the protected areas. Hence, MPAs must be an integral part of overall fisheries management plans and should not be viewed as a stand-alone fisheries management tool, unless they are the only viable option, such as in situations where the capacity to implement other forms of management is lacking [40] (p. 150).

#### tool, unless they are the only viable option, such as in situations where the capacity to implement other forms of management is lacking [40] (p. 150). **4. Achievements of Global Fisheries Management System**

Whereas the human causes for the threats to global fisheries vary, to a large extent, from the fundamental characteristics of fish, they are a common property and renewable natural resource that is incapable of being spatially confined [41] (p. 457). Today, however, it is widely acknowledged that fishery resources are finite and a common interest for human beings. How to realize the sustainable development of fishery resources becomes an important issue of international concern.

In addition to providing comprehensive multilateral rules to regulate the use of the seas, one of the most fundamental contributions of the LOSC has been acting as a new international law of global fisheries management [19] (p. 4). The fundamental redistribution of fishery resources between States has been laid down in the LOSC: the establishment of EEZ, which has ended the freedom of fishing within 200 nm along the coast with the richest fishery resources, is a typical example [42] (p. 41). Part V of the LOSC sets out the EEZ concept, under which the coastal States have "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living", as well as "the jurisdiction of protection and preservation of the marine environment" [16] (Art. 56). The EEZ has been described as an inheritance by the coastal States from the rest of the world: "Under the new regime of the seas, the world community has willed to the coastal States the bulk of living resources in waters off their shores." [43] (p. 1358). This is because the EEZ essentially brings under national jurisdiction large tracts of ocean space that previously belonged to the regime of the high seas. For this reason, the LOSC regulates that the coastal States not only enjoy the sovereign rights over the natural resources in EEZ, but fulfill two important obligations, namely conservation and optimum utilization [16] (Arts. 61, 62).

The traditional legal framework for fisheries management was based on the principle of free access to the living resources. The doctrine associated with this approach was the freedom of the high seas, which was the single operating principle under general international law for a long time [19] (p. 4). However, in the 1958 Geneva Conventions, freedom of high seas fishing is restrained by the requirement of due regard, the duty of cooperation and the duty of conservation [44]. By following the Geneva Conventions, the LOSC sets out more restrictions on high seas fishing, which altered the situation of utilization aspect dominated the concept of conservation. Furthermore, according to the traditional international law theory, a treaty is only legally binding on its contracting parties, but fisheries management rules have broken this limit. For example, the Fish Stocks Agreement does not only restrict the behavior of the contracting parties, but is also applicable to non-party States. Article 17 (1) provides:

"A State which is not a member of a sub-regional or regional fisheries management organization . . . . . . and which does not otherwise agree to apply the conservation and management measures established by such organization or arrangement, is not discharged from the obligation to cooperate, in accordance with the Convention and this Agreement, in the conservation and management of the relevant straddling fish stocks and highly migratory fish stocks."

Moreover, the non-member State shall not authorize vessels flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks that are subject to the conservation and management measures established by such organization or arrangement [22] (Art. 17). In other words, the era of freedom of fishing on the high seas is ended, which makes fishing on the high seas completely under the joint management of the international community [45] (p. 276).

Based on the LOSC, other international instruments set out more specific rules especially for cooperation between States on high seas fishing: the IPOA-IUU covers flag, port, coastal and market State responsibilities, and envisages broad participation and coordination among States, as well as representatives from industry, fishing communities and NGOs, and the use of a comprehensive and integrated approach, so as to address all impacts of IUU fishing [25]; the Code of Conduct provides principles and standards applicable to the conservation, management and development of all aspects of fisheries, i.e., the capture, processing and trade of fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management [23] (Art. 1.3). The international voluntary fisheries instruments have played a role supplementary to the LOSC, providing guidelines for the sustainable utilization of fishery resources.

Apart from fishery management measures on combating IUU fishing taken by the FAO and RFMOs, other instruments and international organizations of conserving marine living resources also assist in ensuring the sustainability of fishery resources and they include the IUCN, UNEP, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on the Conservation of Migratory Species of Wild Animals (CMS) and the Ramsar Convention (wetlands). These international institutions have a strategic interest in both conservation and sustainable use, and have been increasingly working with the FAO to strengthen actions on addressing biodiversity considerations in fisheries, and to some extent, to give due recognition to fisheries' interests (and sustainable use) across their institutions [46] (p. 215).

In addition to the legal system of fisheries management, the formation of the intergovernmental mechanism for the management can be seen as another achievement. As the nature of global commons, the management of fishery resources requires cooperation between appropriate international and regional institutions to ensure multi-sectoral and integrated management [47] (p. 278). At the international level, the United Nations has convened several conferences on the subject of fisheries, and the FAO also included fisheries issues in the Agriculture (Fisheries) Ministerial Conference. Meanwhile, the RFMOs have been established globally, which represents the regional-level institutional model. As highlighted by Oude Elferink, much progress in the governance of high seas activities could be made at the sectoral and regional levels, incorporating both voluntary and binding approaches [48] (p. 254). Global ocean governance has gradually formed two paths in the process of practice, namely regionalism and globalism. They are both competing with each other and gradually integrating and complementing each other [49] (p. 6). On the one hand, the regional approach itself is inspired and promoted by the LOSC and other global ocean governance norms, rules and systems, and at the same time, it is an integral part of the international ocean governance framework to deal with issues such as marine environmental protection and fishery resources conservation; on the other hand, regional practices have formed a regional governance framework according to their own characteristics [49]. The regional approach has also been shown to engender a better legal commitment and policy convergence on behalf of States in the region, to be more cost-effective and more efficient in dealing with large-scale changes [50] (pp. 71, 79). However, it should be noted that the regional approach faces the interference of the competing influences of major powers and is more vulnerable to disputes or differences in interest claims among States within the region [49].

### **5. Limits of the Global Fisheries Management System**

The fisheries management system has made positive contributions to the promotion of the sustainable development of fisheries. However, there still exist several essential limitations, which caused the trend of declining fishery resources.

The first essential limitation is in regard to the gaps between the management approaches and the characteristics of the marine ecosystem. The zonal management approach established by the LOSC is on the basis of distance from the coast, but ignores the fact that the ocean space and the natural resources within it are closely interrelated and need to be considered as a whole [20] (p. 223). The spatial scope of "man-made jurisdictional zones" does not always correspond to "ecologically defined space", which comprises the area where marine ecosystems extend [51] (p. 20). Moreover, the divergence between the law and nature raises considerable difficulty with regard to the conservation of straddling and highly migratory fish species. Due to their nature, these species do not respect manmade maritime boundaries. Hence, a clear-cut distinction between marine spaces under the coastal State's jurisdiction and marine spaces beyond such a jurisdiction is not always suitable for the conservation of these species [52] (p. 131).

The LOSC imposed sovereign control over large sea areas that had traditionally been part of the international commons. In doing so, the LOSC attempted to balance the interests of the fishing States, derived from the freedom of high seas, with the interests of the world community in conserving and sustainably exploiting fisheries [53] (p. 226). However, the LOSC did not solve the problem of how to manage and conserve fish stocks that straddle a State's EEZ and either a neighbor State's EEZ or the high seas, nor disputed EEZs. This triggered an issue that the coastal State attached importance to the utilization of fishery resources rather than conservation, and the conservation measures of the coastal State are essentially characterized by its own economic and social interests in the EEZ [5] (p. 367).

Although the species-specific approach adopted by the LOSC and the Fish Stocks Agreement has played a supplementary function, it seems that the situation was not improved very much as the relevant provisions are too general to apply, which represents the second limitation of the fisheries management system [17] (p. 296). For example, according to the LOSC, States shoulder the obligation to cooperate on the conservation of fishery resources on the high seas, but the relevant provisions leave some ambiguities with regard to the content of the duty of cooperation [54] (p. 57). These provisions do not provide specific guidance describing how cooperation should be performed, nor do they explicitly state how to judge whether or not such obligation of cooperation was breached [55] (p. 26). In practice, cooperation may take various forms and need not necessarily to be pursued in a single form at any given time. The International Court of Justice (ICJ) in the Fisheries Jurisdiction cases required some forms of cooperation, such as a joint examination of conservation measures and entering into negotiations in giving effect to the duty of due regard [56] (pp. 31, 32, 201). Nevertheless, the obligations of contributing and exchanging available scientific information, fishing effort statistics and other data relevant to the conservation of fish stocks are treated as the most basic content. For example, parties to the PSMA have recognized the importance of swift and efficient information exchange; they have shared relevant information of foreign vessels seeking entry into, and using, their designated ports almost in real time to allow swift detection of IUU fishing. In order to operate effectively, the parties tasked the FAO with developing a global information exchange system (GIES) to facilitate the sharing of information relevant to the PSMA, and established an informal working group to provide guidance on the elaboration of the system [57]. The FAO has developed pilot PSMA applications for States to upload their designated ports and national contact points. As of February 2020, 49 States had uploaded their national contact points, and 39 States had uploaded information on their designated ports [7] (p. 110).

The third limitation relates to the issues of binding force and the implementation of relevant international instruments. The voluntary instruments adopted by the FAO, such as the FAO Code and the IPOAs, do make great efforts in the global fisheries management, but their non-binding nature does significantly impede their effectiveness due to the lack of legal force. Thus far, efforts to achieve a fine balance between encouraging widespread international participation and the effective implementation of the guidelines and measures outlined in these voluntary instruments have largely failed [19] (p. 17). As mentioned above, the FAO Code has been incorporated into the FAO Compliance Agreement with mixed results. This approach might be an example to solve the problem of the vulnerability inherent in such voluntary instruments, and strike a traditional balance between *mare liberum* and environmental stewardship [53] (p. 235).

### **6. Conclusions**

The conservation and management of fishery resources is an indispensable component of the protection of community interests in international law, as well as involving the interests of the survival and development of human beings, which is not only for the present but also for future generations. The legal framework governing the conservation of fishery resources in the LOSC relies essentially on the zonal management approach and the species-specific approach, though these two approaches comprise limitations. For

filling the regulatory gaps, the international community has endeavored to negotiate more specific fishery agreements and non-binding policy instruments, as well as to apply management tools, i.e., MPAs, which jointly compose the governance regime for the sustainable development of fisheries. At present, it can no longer deny that the survival of mankind as a whole should be closely aligned with the protection of community interests, and the existing management system makes great efforts to achieve it. One of the outstanding achievements is that the era of freedom of fishing on the high seas is ended, which makes fishing on the high seas completely under the management of the international community.

The international community endeavored to build a governance regime for the global commons on the paradigm of consensus. However, this assumes that all players are negotiating in good faith towards a common goal, rather than protecting their short-term national interests. "Free-riders" outside the system or progress-blocking within the system will be inconsistent with the fundamental duty to cooperate, and make the governance regime less effective. The traditional fisheries management system is State-centered. No matter the General Assembly' resolutions or the rules adopted by FAO, or the directives of RFMOs, are based on the State's sovereignty commitments. However, it proves that it is not effectively working. The quest for effective mechanisms for the global fisheries management will continue to be an important topic in international law. In order to protect the community interest of human beings, a multi-governing model is needed, i.e., the participation of stakeholders, such as the government organizations, NGOs, companies and individuals, in addition to nation States.

**Funding:** This research was funded by China's National Social Sciences Foundation (18VHQ002).

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Acknowledgments:** The author is grateful to Keyuan Zou for his insightful comments and suggestions towards improving this manuscript.

**Conflicts of Interest:** The author declares no conflict of interest.

