Changes in the Geographical Distribution of Shared Fish Stocks and the Mackerel War: Confronting the Cooperation Maze

Abstract

This paper examines the effects of changes in the geographical distribution (CGDs) of shared (transboundary and straddling) fish stocks on the legal duties of state to cooperate on the conservation and management of marine living resources. CGD can involve changes in the (1) nature of the stock, (2) the States involved in the fishery, or (3) the zonal attachment of the stock. The CGD phenomenon, while not completely novel, appears to have intensified in recent years, in large part due to the impact of climate change on the oceans. The paper explores what States must do in order to satisfy their obligation to cooperate in a CGD situation and the consequences should they fail to do so. The Mackerel War is used as a case study throughout the paper because it is a recent and comprehensive CGD dispute, which fittingly exemplifies a wide array of the legal issues that CGDs can raise. In its analysis of the duty of cooperation, the paper finds that states have a large amount of discretion in deciding how to deal with a CDG, including ignoring the CGD if they so agree. However, there is less discretion if the viability of a stock is threatened by the CGD and the conservation obligations of states under international law are triggered. In analysing the consequences of unsuccessful cooperation, the paper focuses on three issues – pre-CGD agreements, dispute settlement and self-help measures. The paper argues that CGDs can be a basis for the termination of international agreements. The paper also suggests that, while existing dispute settlement mechanisms may provide some answers for CGD-related issues, the sweeping jurisdictional limitations for fisheries cases can provoke retaliation and counter-measures instead of further cooperation. Overall, the paper concludes that States and scholars alike must be very attentive to CGDs in the future for the issues they can create.