A Voice for the Fish?: Climate Change and Potential Actions under the UN Fish Stocks Agreement

Dr. Wil Burns, Santa Clara University School of LawSouthwestern Law School Canada Summer Abroad ProgramJune 6, 2008

ROADMAP Define “straddling stocks” and “highly

migratory species” and examples

Describe the potential impacts of climate change on straddling and highly migratory fish stocks;

Outline the history of the Fish Stocks Convention and provisions germane to a cause of action for climate change impacts;

Briefly discuss potential barriers to such an action.

Highly Migratory Species

Bluefin Tuna

Pomfret

Marlin

Mackerel

Saurie

Straddling Stocks

Pollock

Atlantic Cod

Atlantic Halibut

Hake

Pteropods

Article 5In order to conserve and manage straddling fish stocks and

highly migratory fish stocks, coastal States and States

fishing on the high seas shall, in giving effect to their duty

to cooperate in accordance with the Convention:

(a) adopt measures to ensure long-term sustainability of straddling fish stocks and highly migratory fish stocks and promote the objective of their optimum utilization

(d) assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks

(f) minimize pollution . . . [emphasis added]

(g) protect biodiversity in the marine environment

Conservation Provisions: UNFSA

UNCLOS, Article 287

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;

(b) the International Court of Justice;

(c) an arbitral tribunal constituted in accordance with Annex VII;

(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.

Responsibility/Liability - UNFSA

Article 35

States Parties are liable in accordance

with international law for damage or loss

attributable to them in regard to this

Agreement.

UNFCCC: Preamble

Recalling also that States have, in accordance

with the Charter of the United Nations and the

principles of international law . . . the

responsibility to ensure that activities within

their jurisdiction or control do not cause

damage to the environment of other States or of

areas beyond the limits of national jurisdiction.

(emphasis added)

UNCLOS, Annex VIII

Article 1

Subject to Part XV, any party to a dispute concerning the interpretation or application of the articles of this Convention relating to (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping, may submit the dispute to the special arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute . . . [emphasis added]

UNCLOS, Annex VIII

Article 2

1. A list of experts shall be established and maintained in respect of each of the fields of (1) fisheries, (2) protection and preservation of the marine environment . . .

2. The lists of experts shall be drawn up and maintained, in the field of fisheries by the Food and Agriculture Organization of the United Nations, in the field of protection and preservation of the marine environment by the United Nations Environment Programme . . .

“The Motion has been made and seconded that westick our heads in the sand.”