Not many fish in the sea

By Margaret Young

Associate Professor Margaret Young was recently awarded the Junior Scholarship by the International Union for Conservation of Nature (IUCN) Academy of Environmental Law for her book, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge University Press, 2011). We asked Associate Professor Young about international law and fisheries and what motivated her to write the book.

Margaret Young 

Australians were recently reminded about the threat of over-exploitation of fisheries when the Dutch-owned "super trawler", the M V Margiris, arrived in our waters. Concerns were raised about the size and capacity of the vessel, the way in which its quota had been allocated, and the impact of its fishing techniques on non-targeted marine species like seals and dolphins. Such concerns are familiar to international lawyers, and an interest in environmental sustainability was one of my two motivations in writing Trading Fish, Saving Fish. The other was an abiding interest in the theoretical and normative underpinnings of public international law.

Fish stocks around the world face over-exploitation. Indeed, some scientists have projected the collapse of seafood-producing species stocks by 2048. Meanwhile, the international trade in fish and fish products is increasing rapidly, and fish is one of the most highly traded food  and feed commodities. This trade is distorted by perverse incentives for vessel production, which see billions of dollars of state support for the building of more and  bigger boats. The sheer size, concentration and technological capacity of the global fishing fleet, combined with the growing consumption and over-exploitation of fisheries presents risks for food security, livelihoods, culture and ecological  sustainability.

There are a large number of treaties and other international law instruments to address these concerns, but there is a problem in understanding how, and whether, they cohere. World Trade Organisation (WTO) rules on subsidies and other trade measures sit alongside species-protection orders under the Convention on the International Trade in Endangered Species (CITES), fisheries management guidelines issued by the Food and Agriculture Organisation (FAO) and the demarcation of coastal and high seas jurisdiction in the United Nations Convention on the Law of the Sea (UNCLOS). The obligations contained in these legal 'regimes' – assumed by different groups of states at different times – can sometimes even conflict. This is part of a wider phenomenon of the fragmentation of international law, which has seen massive normative development within separate regimes of human rights law, investment law, trade law, environmental law and  so on. In a domestic legal order, problems of conflicting norms are fairly readily resolved by appellate courts and the consitutional system itself, but international law has a radically different structure, with scant notions of hierachy.

… some scientists have projected the collapse of seafood-producing species stocks by 2048.

My research therefore had two aims: to improve international law's response to the growing crisis in fisheries, and to provide practical and theoretical understanding of ways of addressing international law's fragmentation. My methodology was based on empirical work (conducted within the international secretariats of organisations such as the WTO and the FAO), doctrinal work in assessing case law and legal instruments and a theoretical engagement with constitutionalist, philosopical, economic and critical perspectives. I sought to demonstrate how regimes can, and should, interact on issues of fisheries governance.

An important finding was that norms from disparate regimes do influence one another even without the consent of states parties. "Regime interaction" occurs though the activities of diverse actors – including non governmental organisations – and relies on a theoretical model of international law that is more pluralistic than traditional sovereignty-led accounts. There are a range of implications for theories of representation, accountability and legitimacy. Resolving these issues is essential to the ongoing challenge of addressing global problems like fisheries depletion within the open system of international law.

Associate Professor Young's edited collection, Regime Interaction in International Law: Facing Fragmentation
(Cambridge University Press, 2012) was also published earlier this year.

Image: Margaret Young

This article originally appeared in MLS News, Issue 8, October 2012.