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The University of Southampton
Southampton Law School

SMMI professor publishes book on international fisheries law

Published: 8 April 2016 Origin:  Southampton Marine and Maritime Institute
Professor Andrew Serdy

A fishery on the high seas beyond the limits of any nation’s jurisdiction has traditionally been considered an open resource in international law, meaning anyone could legally fish there. But as a result of overfishing and declining fish stocks, most regions of the ocean are now regulated by specific treaties, binding the participants to limits on fishing activity. In his new book, University of Southampton Professor Andrew Serdy analyses these legal instruments and how they are being misused in illegitimately preventing other states from fishing in those areas.

In the open ocean beyond its territorial sea, a coastal state has a sovereign right to exploit marine resources up to 200 nautical miles from its baseline. In international law, the resources beyond this zone (known as the exclusive economic zone) are common property, available to anyone. But with no control over fishing in these areas, each state typically operates to satisfy its own interests, leading to overfishing and depleted fish stocks – an economic phenomenon known as ‘the tragedy of the commons’.

Professor Serdy, who is a member of the University’s Southampton Marine & Maritime Institute, explains: “Within and landward of a country’s exclusive economic zone, how a fishery is managed is dictated by that one state, making things much simpler. If a species is overfished, it’s fairly easy to point the finger at who or what is to blame and take steps to fix it.

“By contrast, on the high seas, precisely because it’s an area where no state has jurisdiction, the tragedy of the commons makes it rational to do the wrong thing, to deplete the fishery. The only way around that is to reach international agreements.”

The management of international fisheries is underpinned by the 1982 UN Convention on the Law of the Sea (UNCLOS) and the 1995 UN Fish Stocks Agreement, which provides that the management of fisheries should be based on the precautionary approach and scientific evidence. However particular areas of the ocean or in some cases particular species have additional treaties. While decisions made under these treaties set fishing limits for their parties, they are not binding on any other nation wishing to exploit the fishery.

The issue addressed by Professor Serdy in his book is that in practice the commissions created by such treaties tend not to welcome newcomers. He argues that illegal, unreported and unregulated (IUU) fishing, which has attracted much political attention in recent years, should be regarded and dealt with as three separate issues, as states are using the conception of it as a single problem as a means to exclude new entrants to a fishery.

“If you treat unregulated fishing the same as illegal fishing, then yes, that is one way in which the tragedy of the commons can be combatted,” he says. “But it does it in a fundamentally illegitimate way, because it’s barring as newcomers to the fishery the very states that did nothing to contribute to the problem. Meanwhile it’s the states that caused the problem who are now going to benefit from the solution.”

The book provides an analysis of the legal framework, as well as the biological and economic factors at play. Professor Serdy proposes that while it remains necessary to prevent the tragedy of the commons, there needs to be a new legal approach to address the new entrants problem. His book presents some practical solutions to these issues.

The book, entitled The New Entrants Problem in International Fisheries Law, was published in March 2016 by Cambridge University Press.

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