Cross regime UNCLOS and UNFCCC cooperation to address loss and damage from climate-shifted transboundary fisheries

Abstract

After 40 years of implementation, the UNCLOS regime faces new challenges particularly in regard to transboundary fisheries management. As designed, UNCLOS created legal responsibilities for States to formally cooperate through regional fisheries management organizations (RFMOs), regional fisheries management arrangements (RFMAs) or other formal relationships to conserve and manage transboundary fisheries. The UN Fish Stocks Agreement was later concluded to provide for better coordination among member States for transboundary fisheries management. UNCLOS and Fish Stocks Agreement do not provide actionable guidance about how to manage transboundary fisheries stocks migrating in response to climate change beyond seeking cooperation and coordination. RFMOs should be filling this gap with equitable management measures. As oceanic conditions continue to change under climate change, however, there is a clear need for cooperation across international regimes to address the physical, economic, and cultural losses of States that are de minimis contributors to climate change, including Pacific Ocean and Caribbean island states. Noting the slow response of RFMOs to addressing loss and damage associated with shifting fisheries, this paper examines the possibility of triggering the UNFCCC Warsaw Implementation Mechanism (WIM) to link the interests of UNCLOS parties for sustainable use of fisheries resources with the interests of UNFCCC parties to accelerate climate change adaptation by remedying losses and damages associated with climate impacts. This paper calls for the WIM to assist in facilitating transboundary agreements between States and between RFMOs and States for loss and damage associated with shifting fisheries.