Fisheries Law The University of British Columbia LAW 396 January 2016 April 2016! Contact Information: Adam Soliman Phone: (778) 838 5505 Email: adam@fishlaw.org and solimana@mail.ubc.ca Time & Location: Tuesday (2:00 pm 5:00 pm) at Room 112 (Allard)! Schedule: Seminar 1 (January 5): Introduction to topic Seminar 2 (January 12): International Law: treaties & agreements Seminar 3 (January 19): Illegal, Unreported & Unregulated fisheries Seminar 4 (January 26): Fisheries Management Seminar 5 (February 2): Fisheries Management (cntd.) and Marine Protected Areas Seminar 6 (February 9): International Trade Law and fisheries Reading Week Seminar 7 (February 23): Human Rights and Fisheries, Aboriginal, Customary, Small- Scale fishers rights Seminar 8 (March 1): Seafood Fraud, traceability, advertisement & labeling Seminar 9 (March 8): Fisheries Prosecutions and defences (Caldwell)** Seminar 10 (March 15): Inspection & licensing (Keevile)** Seminar 11 (March 22): Coastal state sovereignty and the Surplus Principle (Munro)** Seminar 12 (March 29): Aquaculture & fish feed regulations Seminar 13 (April 5): The Local seafood movement: Community Supported Fisheries (CSFs), Slow Fish & alternative marketing** * Indicates available slots for student presentations **Indicates possibility of guest speakers. Description: This seminar will introduce participants to the laws and regulations governing fisheries laws internationally and within Canada as well as with in several other countries. This seminar is designed to be both informative and analytical. Participants will have the opportunity to examine and analyze the legislative actions taken by nations around the world as it relates to fisheries management in general. In addition to fisheries management, this seminar will also cover seafood and aquaculture laws and regulations.! 1
Course Materials: Many of the required readings for this course are available in publicly accessible electronic databases, or in databases that are available to all UBC students through the library system. Required readings will be discussed in class. Field Trip: The possibility of a field trip will be discussed and organized if students are interested. Evaluation: Evaluation is based primarily upon preparation of a research paper of 7000 words (80% of the final grade). A paper proposal will be due partway through the term. The paper itself will be due at the end of the examination period (No later than 4:00 pm on April 29, 2015). Students may submit their final papers to the Faculty of Law reception desk. Students interested in presenting their research may present their work and obtain feedback (this will need to be organized with the instructor for scheduling). In addition, class participation will account for 20% of the final grade. General participation in class discussion is expected. However, it is understood that many students will be engaged in various moots during the first few weeks of the second semester and hence a portion of the class participation grade could be devoted to preparation for and publishing of blog posts on external fisheries blogs. At the end of the term each student will provide the instructor with a recommendation for his or her class participation grade and a short explanation of why that grade is appropriate. SEMINAR 1: Introduction to Fisheries Law At the beginning of this Seminar the instructor will introduce himself to the participants and give the class a brief introduction to how he got involved in Fisheries Law. Following the instructor s biography, each student will introduce themselves to the class and recount why they are interested in Fisheries Law. After this initial introduction, this Seminar will introduce the class to general issues discussed in fisheries law, including international agreements, fisheries management regimes, and domestic legislation from the US, Canada, the European Union, Australia, Hong Kong and China. This Seminar is designed to provide a brief overview and introduce the topics discussed more in-depth in subsequent classes. Any questions about the topics or course structure will be entertained at this time. Furthermore, this Seminar will discuss the concept of tragedy of the commons, FAO s Ecosystem approach to fisheries, as well as FAO s draft guidelines to Sustainable Small-Scale Fisheries.! 2
Assignment & Participants shall prepare their short introductions that answer the following questions: o! Why have you chosen to attend this Fisheries Law class? o! What are your expectations of this course? o! Are there any topics not listed on this syllabus that you would like to discuss? Massachusetts Institute of Technology, Mission 2011: Saving the Oceans, available at http://web.mit.edu/12.000/www/m2011/finalwebsite/problem/present/fisheries.sht ml Browse the United Nations Fisheries and Aquaculture Department website, available at http://www.fao.org/fishery/en Garrett W. Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968). Berkes, Fikret. "Fishermen and the tragedy of the commons." Environmental conservation 12.03 (1985): 199-206. Sutinen, Jon G., and Peder Andersen. "The economics of fisheries law enforcement." Land Economics 61.4 (1985): 387-397. Joyner, Christopher C. "Compliance and Enforcement in New International Fisheries Law." Temp. Int'l & Comp. LJ 12 (1998): 271. SEMINAR 2: Fisheries Law International Treaties and Agreements This Seminar will introduce and discuss the international community s progress toward sustainable and efficient fisheries management. This Seminar is designed to prepare the participants to discuss specific efforts made by the international community including the UN Convention on the Law of the Sea (UNCLOS), the UN Fish Stock Agreement (UNFSA) and the UN FAO Committee of Fisheries (COFI). The most important of these is the UNCLOS which lays down a comprehensive regime of law and order in the world s oceans and seas establishing rules governing all uses of the oceans and their resources. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole. Understanding these international agreements is fundamental to understanding fisheries law as a whole. In addition to the UN agreements and treaties, the International Maritime Organization has developed a number of international conventions. These conventions include: Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972); International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969); International Convention for the Prevention of Pollution from Ships (1973; modified in 1978); International Convention on Oil Pollution Preparedness, Response and Cooperation (1990); and Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances (2000).! 3
Following this Seminar, participants should be able to: Discuss the importance of international agreements and organizations Demonstrate an understanding of the UN Convention on the Law of the Sea Discuss the United Nations Fish Stock Agreement Discuss the International Maritime Organization s Conventions United Nations Convention on the Law of the Sea, available at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf United Nations Fish Stock Agreement, available at http://www.nmfs.noaa.gov/ia/agreements/global_agreements/unfsa.pdf United Nations Food and Agriculture Organization, UN FAO Committee of Fisheries, available at http://www.nmfs.noaa.gov/ia/agreements/global_agreements/cofi.pdf NOAA, Regional Agreements, available at http://www.nmfs.noaa.gov/ia/agreements/regional_agreements/intlagree.html International Convention for the Prevention of Pollution from Ships, available at http://www.imo.org/about/conventions/listofconventions/pages/internationalconvention-for-the-prevention-of-pollution-from-ships-(marpol).aspx Guruswamy, Lakshman. "Promise of the United Nations Convention on the Law of the Sea (UNCLOS): Justice in Trade and Environment Disputes, The."Ecology LQ 25 (1998): 189. Juda, Lawrence. "UNCLOS III and the new international economic order."ocean Development & International Law 7.3-4 (1979): 221-255. SEMINAR 3: Illegal, Unregulated, and Unreported fishing: Measures Taken & Challenges to Enforcement This Seminar will introduce and discuss the international community s progress toward unified action against illegal fishing. The class will begin with a discussion about the required reading that was assigned to be completed prior to class. This Seminar is designed to prepare the participants to discuss specific efforts made by the international community in combating illegal fishing practices. Port State Measures (PSM) are requirements established or interventions undertaken by port states which a foreign fishing vessel must comply with or is subjected to as a condition for use of the ports within the port state. The requirements typically include: prior notification of port entry, use of designated ports, restrictions on port entry and landing/transshipment of fish, restrictions on supplies and services, and documentation requirements and port inspections. Many of these measures have been recently promoted for inclusion into international treaties and agreements. Illegal, Unreported and unregulated Fishing (IUUs) is a deep concern in the fisheries community because of its detrimental effect on fish stocks, marine ecosystems and the! 4
livelihood of legitimate fishers. Recognizing the issues related to IUUs is important in the overall understanding of how and why fisheries management tools are implemented globally. Following this Seminar, participants should be able to: Demonstrate an understanding of Port State Measures Demonstrate an understanding of IUU issues and policies Judith Swan, Port State Measures to Combat IUU Fishing: International and Regional Developments, 7 Sustainable Dev. L. & Pol y 38 Ashley Lillian Erickson, Out of Stock: Strengthening International Fishery Regulations to Achieve a Healthier Ocean, 34 N.C. J. Int l L. & Com. Reg. 281 Katherine Weber, Can You Eat Your Fish & Save it Too? Improving the Protection of Pirated Marine Species Through International Trade Measures, 25 J. Land Use & Envtl. L. 265 Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing, available at http://www.fao.org/fileadmin/user_upload/legal/docs/1_037t-e.pdf Gallic, Bertrand Le, and Anthony Cox. "An economic analysis of illegal, unreported and unregulated (IUU) fishing: Key drivers and possible solutions."marine Policy 30.6 (2006): 689-695. Erceg, Diane. "Deterring IUU fishing through state control over nationals."marine Policy 30.2 (2006): 173-179. SEMINAR 4 & 5: Introduction to Fisheries Management Regimes Global marine fish resources have suffered from serious overfishing since 1950, and many marine resources are highly threatened. Various management regimes, including but not limited to Catch Shares including individual transferable quotas (ITQs), Territorial Use Rights in Fisheries (TURFs), Open Access, and Limited Entry schemes have been implemented worldwide to regulate fisheries. Special emphasis will be given to ITQs, which are believed to have improved fishery management and restored declining fisheries to sustainability. Despite its partial success, ITQs have socio-economic consequences that led to many criticisms. This Seminar will address these criticisms and analyze ways to overcome some of these socio-economic concerns. Furthermore, this Seminar will cover community based fisheries management schemes and their implementation in several parts of the world. Following this Seminar, participants should be able to: Demonstrate a general understanding of various fisheries management regimes Demonstrate an understanding of community based fisheries management regimes! 5
Discuss how domestic fisheries management schemes interplay with international conventions and treaties Demonstrate an understanding of different approaches to fisheries governance including hierarchal, co-management and self management governance Dietmar Grimm et al., Assessing Catch Shares Effects: Evidence from Federal United States and Associated British Columbian Fisheries, 36 MARINE POLICY 654-657 (2012). Cindy Chu, Thirty Years Later: The Global Growth of ITQs and Their Influence on Stock Status in Marine Fisheries, 10 Fish & Fish. 217 (2008). Christopher Costello et al., Can Catch Shares Prevent Fisheries Collapse?, 321 SCIENCE 1678, 1679 (2008). Christopher J. Carr, Harry N. Scheiber, Dealing with A Resource Crisis: Regulatory Regimes for Managing the World's Marine Fisheries, 21 STAN. ENVTL. L.J. 45, 58-59 (2002) Jonathan H. Adler, Legal Obstacles to Private Ordering in Marine Fisheries, 8 Roger Williams U. L. Rev. 9 Seth Macinko and Daniel W. Bromley, Property and Fisheries for the Twenty- First Century: Seeking Coherence From Legal and Economic Doctrine, 28 Vt. L. Rev. 623 Adam Soliman, Achieving Sustainability through Community Based Fisheries Management Schemes: Legal and Constitutional Analysis, Georgetown International Environmental Law Review, Vol. XXVI, 2014 Adam Soliman, Do private property rights promote sustainability? Examining Individual Transferable Quotas in Fisheries, Seattle Journal of Environmental Law, Volume 4, May 2014 Adam Soliman, Duty of Stewardship and Fisheries Governance: A Proposed Framework, Maritime Studies, 2014 13:11. Adam Soliman, Using Individual Transferable Quotas (ITQs) To Achieve Social Policy Objectives: A Proposed Intervention, Marine Policy 45C (2014), pp. 76-81 Adam Soliman, Individual Transferable Quotas in World Fisheries: Addressing Legal and Rights-Based Issues, Ocean and Coastal Management Journal, Volume 87, January 2014, Pages 102 113 SEMINAR 6: International Trade Law and fisheries This Seminar will cover International Trade Law specifically the GATT agreement. The focus will be on the Core Principle of the WTO: Most Favored Nation and National Treatment as well as on Article XX and the exceptions to it. In this Seminar, participant will have an over view of leading WTO cases such as: Treatment of Germany of imports of Sardines Korea Measures Affecting Imports of fresh, Chilled and Frozen Beef! 6
United States Import Prohibition of Certain Shrimp and Shrimp Products; and others Following this Seminar, participants should be able to: Demonstrate a general understanding of International Trade Law Demonstrate a general understanding of how exceptions can be utilized to restrict trade in fish caught by destructive gear and practices Chapter 3 and Chapter 9, International Trade Law, Problems, Cases and Materials, by Daniel C. K. Chow, Thomas J. Schoenbaum, 2008! 7