The Southern Bluefin Tuna Arbitral Tribunal Did Get It Right: A Commentary and Reply to the Article by David A. Colson and Dr. Peggy Hoyle

This contribution is a reply to and a commentary on the article by David A. Colson and Dr. Peggy Hoyle, "Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?" 34(1) Ocean Development & International Law 59-82 (2003). Colson and Hoyle took the view that Southern Bluefin Tuna Tribunal did not reach the correct answer. The author's survey of the Southern Bluefin Tuna and the Mox Plant cases, in light of the doctrine of procedural and substantive parallelism between the umbrella UN Law of the Sea Convention and its numerous implementing special treaties covered by Articles 281-282, leads her to conclude that the Southern Bluefin Tuna Arbitral Tribunal did get it right.­     

Fisheries in the Southern Ocean: an ecosystem approach

The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) is bound by its Article II, 3 to follow an ecosystem approach to management. This approach has been extended to the application of a precautionary approach in the late 1980s. In our review, we deal primarily with the science-related aspects of CCAMLR and its development towards an ecosystem approach to the management of the living resources of the Southern Ocean. To assist the Commission in meeting its objectives, as set out in Article II, 3, the Scientific Committee established the CCAMLR Ecosystem Monitoring Programme to detect possible effects of krill fishing on the performance of top-level predators, such as albatrosses, penguins, petrels and fur seals. Fisheries in the Southern Ocean followed the fate of other fisheries worldwide in which target species were depleted to low level one after the other. Currently, two types of fisheries are open: the longline fisheries on Patagonian toothfish (Dissostichus eleginoides) and Antarctic toothfish (Dissostichus mawsoni) and the trawl fisheries on mackerel icefish (Champsocephalus gunnari). Both fisheries are managed in a single-species context, however, with conservation measures in place to protect by-catch species, such as rattails (Macrouridae) and skates and rays (Rajidae). Two major problems still exist in fisheries in the Southern Ocean: the by-catch of birds in longline fisheries primarily in the Indian Ocean and the high level of IUU fishing again in the Indian Ocean. Both, the by-catch of birds and high IUU catches undermine the credibility of CCAMLR to safeguard the marine living resources in the Southern Ocean.     

Delimitation of the maritime boundary in the gulf of Maine area

The compulsory dispute settlement regime included in the 1982 Law of the Sea Convention is recognized as one of the most comprehensive in a modern international convention. Yet, in the recent application of this regime, the question has arisen as to whether the procedural prerequisites associated with the LOS Convention's compulsory dispute settlement mechanism are so arduous as to avoid binding and compulsory jurisdiction in most instances. This article addresses that question by examining, in particular, the reasoning of the Southern Bluefin Tuna arbitration tribunal, which found Article 281 of Section 1 of the LOS Convention to bar jurisdiction to the compulsory dispute settlement mechanism prescribed by the Convention, and offers suggestions as to how states might distinguish or overcome the barriers imposed by the Southern Bluefin Tuna tribunal in future cases.     

A possible explanation for the population size discrepancy in tuna (genus Thunnus) estimated from mitochondrial DNA and microsatellite data

A recent study using both mitochondrial DNA (mtDNA) and microsatellite data reported on a population size discrepancy in the eastern tiger salamander where the effective population size (N_e) estimate of the former exceeded that of the latter. That study suggested, among other hypotheses, that homoplasy of microsatellite alleles is responsible for the discrepancy. In this investigation, we report 10 new cases of a similar discrepancy in five species of tuna. These cases derive from our Bayesian inferences using data from Pacific Bluefin Tuna (Thunnus orientalis) and Yellowfin Tuna (Thunnus albacares), as well as from published estimates of genetic diversity for additional populations of Yellowfin Tuna and three other tuna species. Phylogenetic character analyses of inferred genealogies of Pacific Bluefin and Yellowfin Tuna reveal similar reduced levels of mtDNA and microsatellite homoplasy. Thus, the discrepancy between inferred population sizes from mtDNA and microsatellite data in tuna is most likely not an artifact of the chosen mutation models used in the microsatellite analyses, but may reflect behavioral differences between the sexes such as female-biased philopatry and male-biased dispersal. This explanation now warrants critical testing with more local populations of tuna and with other animal and plant groups that have different life histories.     

Electronic tagging of Bluefin Tunas from the Maltese spawning ground suggests size-dependent migration dynamics

Environmental Biology of Fishes - The purse seine fishery in the Mediterranean represents about 60% of the international catch for Atlantic Bluefin Tuna (Thunnus thynnus). Yet, tagging operations...     

Foraging movements of the Shy Albatross Diomedea cauta breeding in Australia; implications for interactions with longline fisheries

Satellite telemetry was used to identify the foraging zones of Shy Albatrosses Diomedea cauta breeding at two sites off Tasmania, Australia (Albatross Island in western Bass Strait and Pedra Branca to the south) to assess their level of interaction with longline fisheries. Adult birds from both colonies fed locally both in and outside the breeding season. Breeding birds from Albatross Island foraged over the Australian continental shelf or slope waters off northwest Tasmania, while those from Pedra Branca foraged between the colony and the southeastern edge of the continental shelf. The distances travelled by the birds and the duration of their foraging trips varied during the breeding cycle and tended to decrease as eggs approached hatching. Adults which were tracked near the end of the breeding season (March-April, n = 7 birds) deserted their chicks prematurely, and while dispersing further than incubating or brooding birds, they remained over the continental shelf and slope waters off southeast Australia. Home range analyses indicated 41% overlap between foraging zones of birds during successive breeding stages. Dispersal during the postbreeding period extended the foraging zones with less overlap between individuals (10% for Albatross Island and 19% for Pedra Branca). The recent contraction of the Japanese Southern Bluefin Tuna longline fishery to the south and east coasts of Tasmania has resulted in extensive overlap with adult Shy Albatrosses from Pedra Branca, but appears to pose a minimal threat to adult birds from Albatross Island. Coupled with the concomitant increase in the Australian domestic tuna longlining industry, adult Shy Albatrosses from southern Tasmania (Pedra Branca and the Mewstone) are vulnerable to incidental capture through out their annual cycle.     

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

This article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.     

Whales sustain fisheries: Blue whales stimulate primary production in the Southern Ocean

It has previously been asserted that baleen whales compete with fisheries by consuming potentially harvestable marine resources. The regularly applied “surplus‐yield model” suggests that whale prey becomes available to fisheries if whales are removed, and has been presented as a justification for whaling. However, recent findings indicate that whales enhance ecosystem productivity by defecating iron that stimulates primary productivity in iron‐limited waters. While juvenile whales and whales that are pregnant or lactating retain iron for growth and milk production, nonbreeding adult whales defecate most of the iron they consume. Here, we modify the surplus‐yield model to incorporate iron defecation. After modeling a simplistic trajectory of blue whale recovery to historical abundances, the traditional surplus‐yield model predicts that 10¹¹ kg of carbon yr^?1 would become unavailable to fisheries. However, this ignores the nutrient recycling role of whales. Our model suggests the population of blue whales would defecate 3 × 10⁶ kg of iron yr^?1, which would stimulate primary production equivalent to that required to support prey consumption by the blue whale population. Thus, modifying the surplus‐yield model to include iron defecation indicates that blue whales do not render marine resources unavailable to fisheries. By defecating iron‐rich feces, blue whales promote Southern Ocean productivity, rather than reducing fishery yields.     

Composition of the Aboriginal harvest of fisheries resources in coastal New South Wales,Australia

A key aspect of equitable management of the world’s fishery resources is the provision of traditional fishing access for Indigenous peoples. In Australia, increased recognition of the importance of fisheries to Indigenous culture and livelihoods over recent years has created a need for information on the species targeted to support policy and management. In the State of New South Wales (NSW), research on Indigenous fisheries catch composition is limited to two major studies. Here, we compare and combine data on Indigenous catch composition from these two studies to produce a comprehensive synthesis of current knowledge of Indigenous fisheries in NSW. The species harvested include more than 150 species of finfish and invertebrates, over 90 % of which are also harvested by commercial and recreational fishers. Our findings provide an empirical basis for future development of policy and management initiatives to meet the needs of Indigenous fishers and other stakeholders, as well as the principles of sustainable fisheries harvest.     

Spatio-temporal overlap between the at-sea distribution of Southern Giant Petrels and fisheries at the Patagonian Shelf

The interactions between seabirds and fisheries pose significant threats for the seabird species such as incidental capture. In contrast, several species of seabirds meet part of their energetic requirements through the use of fisheries discards. Knowledge about the relationship between at-sea distribution of Procellariiformes and fisheries is a key tool in marine ecosystem management. We analysed the spatio-temporal relationship between the areas used by 16 satellite-tracked breeding adults of the Southern Giant Petrel and fisheries distribution and catch at the Patagonian Shelf. We also determined the time spent by adults in different marine jurisdictions. Results indicated a marked spatio-temporal association between birds and fisheries, mainly trawlers. The Southern Giant Petrels concentrated their foraging effort over Argentinean waters. The use of an abundant and predictable food source provided by the fisheries discards may be one of the factors affecting the dynamics of the Southern Giant Petrel populations in Patagonia, Argentina.     

Trade-Based Estimation of Bluefin Tuna Catches in the Eastern Atlantic and Mediterranean, 2005–2011

The Eastern Atlantic and Mediterranean stock of Bluefin tuna Thunnus thynnus (BFTE) has long been considered overfished and at risk of collapse. Although ICCAT quotas for this stock have decreased considerably over the past years, uncertainty exists about the degree of catch beyond this quota. The extent of such catch is an important piece of information in stock assessment models as well as being an indicator of the effectiveness of fisheries management. We present a model using Bluefin tuna trade data to infer actual catches. Basing our calculations on 25 countries involved in BFTE trade, we estimate that between 2005 and 2011, allowable quotas were exceeded by 44 percent. This gap between catch and quotas has slightly increased over past years, leading to estimated excess catches of 57 percent for the period between 2008 and 2011. To improve assessments, preparation and design of BFTE management, we suggest that the estimated total removals reported in this paper be included in stock assessment models for BFTE. An implication of our findings is that ICCAT member states should take stronger measures to monitor and enforce compliance with quotas.     

The Status of the Marine Fisheries of West Bengal Coast of the Northern Bay of Bengal and Its Management Options: A Review

Marine fishery is one of the most important sectors for both economic and social development of the country. The whole coast of West Bengal was surveyed from July 2010 to August 2012 for acquiring data on marine fishing. The secondary data were also collected from various government departments and non-government organizations. After compiling all the data a clear picture of marine fisheries in the coastal region of West Bengal was emerged. Arius spp. has the height percentage (15.16) and Yellow Fin Tuna has the lowest percentage (0.06) of landing in West Bengal coast during 2006–2012. Bombay duck and Hairtail Ribbon fish landing shows a decreasing tendency in these 7 years. As the number of mechanically powered boats are increasing in recent years, the total marine fish landing from West Bengal coast is remained more or less static. Therefore, the catch per unit effort has declined significantly in recent years (r = 0.77). So, immediate remedial measures should be taken to manage sustainably, the marine fishery sector of West Bengal.     

Developing a management procedure robust to uncertainty for southern bluefin tuna: a somewhat frustrating struggle to bridge the gap between ideals and reality

Fisheries management is conducted to achieve sustainable use of fishery resources, mainly through regulation of fishing activities. For almost a decade, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) struggled to reach agreement on a total allowable catch (TAC) for southern bluefin tuna (SBT) because of stock assessment uncertainties. To address this, in 2002 the CCSBT commenced development of a management procedure (MP), a pre-agreed set of rules to determine how the TAC will be adjusted as new monitoring data become available. The CCSBT Scientific Committee tested various candidate MPs using operating models which simulate fish population and fishery dynamics as well as incorporate process, observation, and model uncertainties. Candidate MPs were evaluated using performance measures related to the following management objectives: maximize catches, avoid stock collapse, and minimize interannual catch variation. Of the MPs explored, some relied solely on empirical data [i.e., adjusted TAC based on catch per unit effort (CPUE) trends], whereas others were more complicated, based on population models. In 2005, the CCSBT adopted a model-based MP that realized a moderate catch with low variability and avoided stock collapse. This MP struck a compromise between the risk-prone and risk-averse standpoints of the different stakeholders. However, despite this concerted scientific effort, the MP was not implemented because, shortly after its adoption, it became evident that historical catches may have been substantially underreported. This complication necessitates returning to near the beginning of the development process. MP approaches have various advantages and challenges to be explored further. However, it is essential to lessen human-introduced uncertainty (such as catch misreporting) by enhanced enforcement, and to increase management robustness to biological uncertainties by implementing MPs.     

Fisheries tenure in an African floodplain village and the implications for management

Floodplain fisheries make an important contribution to the total freshwater catch of Africa. Rules and institutions controlling access to these fisheries have received little attention in the literature. This paper explores property regimes operating in the Hadejia-Jama'are floodplain fishery, Nigeria, with a focus on a case-study village. Private, communal property, and open-access tenure regimes exist. The physical characteristics of the resources under each of these categories are differentiated. The economic cost of making resources more exclusive appears to be a key factor affecting tenure. However, the social benefits of communal access are also extremely important. In a risky environment that is characterized by spatial and temporal variation in the distribution of resources, maintaining rights of access to a wide geographical portfolio of resources is an important consideration. This is especially true considering recent environmental changes in the floodplain caused by dams and drought. This suggests that recommendations to improve productivity of the fishery by making access more exclusive may not maximize overall benefits from the fishery, since gains in productivity may be outweighed by losses in social benefits.     

The law of the sea and regional fisheries policy

Abstract

The consequences of the inevitable acceptance of extended jurisdiction and its impact on fisheries policy in the South Pacific are considered within the framework of the principles outlined at the Third Session of the United Nations Law of the Sea Conference. It is pointed out that the fisheries resources of the region considered are dominated by highly migratory species, particularly tunas, and that the management of the fisheries on these species and the conservation of the species themselves will require comprehensive regional cooperation. Considering the common interests of the developing countries of the region and their comparative lack of experience in fisheries management and in surveillance and enforcement capabilities, it is argued that a regional fisheries agency is required. A wide range of possible functions for such a body is discussed and a three‐phase approach to the development of the agency is proposed.     

Sharing the water column: physiological mechanisms underlying species-specific habitat use in tunas

Tuna species support some of the world’s largest commercial and recreational fisheries. Their extensive migratory patterns expose them to multiple national and international fisheries and fishery management regimes. Several prized species have become the focus of global conservation efforts and there is a growing worldwide interest in establishing optimal strategies for sustainable tuna fisheries. Although this task has proven to be very challenging, it has taken on a new sense of urgency in the face of the potential effects of global climate change. A better understanding of the interactions between environmental conditions and tuna physiology and how they affect tuna behavior will offer population and stock assessment modelers and fisheries biologists a more mechanistic understanding of tuna distribution patterns and may help predict changes in both geographic and depth-related movement patterns. Indeed, physiological data comprise a growing component of multi-trait analysis approaches to species conservation. Our review aims to summarize what is known about differences among tuna species in distribution patterns, tolerances to environmental conditions, and physiological characteristics that correlate with the capacity to inhabit cooler (deeper, higher latitude) and even hypoxic waters. To achieve this goal, we discuss how these physiological traits are associated with habitat partitioning within the three-dimensional oceanic environment and with niche expansion into cooler and hypoxic waters. We also point out areas where additional research is needed to predict more accurately how future changes in oceanographic conditions will affect the distributions and movement patterns of tunas and their availability to fisheries.     

Estimating Fish Exploitation and Aquatic Habitat Loss across Diffuse Inland Recreational Fisheries

The current state of many freshwater fish stocks worldwide is largely unknown but suspected to be vulnerable to exploitation from recreational fisheries and habitat degradation. Both these factors, combined with complex ecological dynamics and the diffuse nature of inland fisheries could lead to an invisible collapse: the drastic decline in fish stocks without great public or management awareness. In this study we provide a method to address the pervasive knowledge gaps in regional rates of exploitation and habitat degradation, and demonstrate its use in one of North America’s largest and most diffuse recreational freshwater fisheries (Ontario, Canada). We estimated that 1) fish stocks were highly exploited and in apparent danger of collapse in management zones close to large population centres, and 2) fish habitat was under a low but constant threat of degradation at rates comparable to deforestation in Ontario and throughout Canada. These findings confirm some commonly held, but difficult to quantify, beliefs in inland fisheries management but also provide some further insights including 1) large anthropogenic projects greater than one hectare could contribute much more to fish habitat loss on an area basis than the cumulative effect of smaller projects within one year, 2) hooking mortality from catch-and-release fisheries is likely a greater source of mortality than the harvest itself, and 3) in most northern management zones over 50% of the fisheries resources are not yet accessible to anglers. While this model primarily provides a framework to prioritize management decisions and further targeted stock assessments, we note that our regional estimates of fisheries productivity and exploitation were similar to broadscale monitoring efforts by the Province of Ontario. We discuss the policy implications from our results and extending the model to other jurisdictions and countries.     

Progress and problems in U.S. marine fisheries rebuilding plans

The United States is somewhat unique among major fishing nations in mandating the rebuilding of overfished stocks within a specified period of time, a requirement first enacted in 1996. This study is based primarily on a review of trends in the 2000–2010 period in fishing mortality and biomass levels of stocks in rebuilding programs, supplemented by recent U.S. and international scientific literature. The major objectives of this study are, first, to assess progress achieved to date in these rebuilding plans, and, second, to identify the most significant obstacles to successful rebuilding. Sufficient data exists to monitor trends in fishing mortality and biomass levels number for just 35 stocks, out of a total 59 stocks that are currently rebuilding or have recently completed the rebuilding process. Most stocks in rebuilding plans are finfish, and the majority of are managed in relatively few fishery management plans governing fisheries in the Atlantic, Gulf of Mexico and northwest Pacific portions of the U.S. 200-mile exclusive economic zone. Therefore, the findings of this report are tentative and do not necessarily reflect broader trends in U.S. federally managed fisheries. This report shows substantial progress in about two-thirds of the 35 rebuilding stocks included in this report. Progress is defined in two ways: either the rebuilding plan has reduced fishing mortality to an acceptably low level, or it has brought about stock recovery to a mandated target. Most significantly, the assessment of rebuilding plan case studies indicates that reductions in fishing mortality, especially when implemented early in the programs and maintained as long as necessary, lead to significant increases in stock abundance in roughly four of five stocks. At the same time, the case studies also show that, in about one-third of the rebuilding plans, recovery measures have not yet produced the desired outcomes. The two most common problems are failure to adequately control fishing mortality and low resilience (high susceptibility to fishing pressure) of certain categories of overfished stocks.     

Interactions between Cetacean and Fisheries in the Southern Ocean

Soon after longlining on Patagonian toothfish (Dissostichus eleginoides) started in the Southern Ocean in the second half of the 1980s, interactions of cetaceans with these fisheries became apparent. The two species primarily involved were orcas (killer whales) (Orcinus orca) and male sperm whales (Physeter macrocephalus). Both species took substantial number of fish from the line primarily during day light hours. Catch rates of longliners declined to less than 50% when orcas occurred close to longline vessels while the loss to sperm whales was much less obvious. They were seen diving close to the line down to 400 m where they apparently took fish. Their impact on catch rates was much less notable. Sperm whales became frequently entangled in the line and part of the line was lost in a number of cases. Other cetaceans were rarely seen in the vicinity of longline vessels. They became entangled in the line only occasionally and one whale (presumably a minke whale) died.     

Re-Examining Mortality Sources and Population Trends in a Declining Seabird: Using Bayesian Methods to Incorporate Existing Information and New Data

The population of flesh-footed shearwaters (Puffinus carneipes) breeding on Lord Howe Island was shown to be declining from the 1970''s to the early 2000''s. This was attributed to destruction of breeding habitat and fisheries mortality in the Australian Eastern Tuna and Billfish Fishery. Recent evidence suggests these impacts have ceased; presumably leading to population recovery. We used Bayesian statistical methods to combine data from the literature with more recent, but incomplete, field data to estimate population parameters and trends. This approach easily accounts for sources of variation and uncertainty while formally incorporating data and variation from different sources into the estimate. There is a 70% probability that the flesh-footed shearwater population on Lord Howe continued to decline during 2003–2009, and a number of possible reasons for this are suggested. During the breeding season, road-based mortality of adults on Lord Howe Island is likely to result in reduced adult survival and there is evidence that breeding success is negatively impacted by marine debris. Interactions with fisheries on flesh-footed shearwater winter grounds should be further investigated.