in areas under national jurisdiction, on the high seas or as part of the competent
regional fisheries management organizations.
The FAO Agreement to Promote Compliance with International Conservation
and Management Measures by Fishing Vessels on the High Seas
5 also raises
interesting issues regarding a possible ‘tension’ between international measures
and measures adopted at national level. In fact, on the one hand, the Agreement
recognizes the interests of all States in developing their fishing sectors in accordance
with their national policies,
6 whilst on the other hand stipulating that each party shall
take the necessary measures to ensure that fishing vessels do not engage in any
activity that undermines the effectiveness of international conservation and management measures.
7 Since the Agreement gives prominence to the conservation and
management measures adopted at international level,
8 whilst not providing a clear
definition, it follows that a ‘necessary’ compatibility must be achieved between
national measures and those adopted at supranational level, thus obliging State
practice to produce norms in conformity with the established body of international
rules.
9
The FAO Code of Conduct for Responsible Fisheries
10 is also a relevant instrument here. A doctrinal controversy persists as to the nature of the instruments of ‘soft
law’ (its non-binding nature; production of a specific kind of ‘norms’; instruments
designed to influence State practice or real rules). The Code is clearly a ‘soft law’
instrument designed to be voluntarily applicable on a global basis. Following the
approval of the Code, an effort was made for guidelines to be adopted which, in our
view, constitute a mix of concepts of a technical nature and guidance intended to be
taken into consideration by the national administrations. In the latter case, one could
refer to the recommendations on management processes for the institutional role
played by the various actors in the sector. The general framework provided by the
Code has to find an adequate, but permanent, response in the legal system of the
States for its requirements to be met, namely regarding the instruments for control of
catches, which are of the utmost importance in any conservation policy. This is of
relevance in spaces under national jurisdiction as well as in areas beyond national
5 Approved on 24 November 1993 by Resolution 15/93 of the Twenty-Seventh Session of the FAO
Conference. Entered into force on 24 April 2003.
6 Cf. the Preamble of the Agreement.
7 Cf., inter alia, Art. III, 1 (a) and Art. V, 1 and 2 of the Agreement.
8 The definition provided by Art. I (b) of the Agreement is the following: “‘international conservation and management measures’ means measures to conserve and manage one or more species
of living marine resources that are adopted and applied in accordance with the relevant rules of
international law as reflected in the 1982 United Nations Convention on the Law of the Sea (. . .).”
9 Another important instrument, in this context, is the Agreement on Port State Measures to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated Fishing (approved by the FAO Conference at its Thirty-sixth Session in 2009. Entered into force on 5 June 2016). For the aspects related
with the national space, Cf. Tsamenyi and Hanich (2013), pp. 109–119.
10 Adopted through Resolution 4/95 by the FAO Conference on 31 October 1995. For a general
analysis, Cf. Cardoso (2000), pp. 227–240; Courtil (2009), pp. 87–97; Treves (2014), pp. 301–307.
6 Considerations on Some Global Institutional Challenges Within the Context of. . .
113
regional fisheries management organizations.
The FAO Agreement to Promote Compliance with International Conservation
and Management Measures by Fishing Vessels on the High Seas
5 also raises
interesting issues regarding a possible ‘tension’ between international measures
and measures adopted at national level. In fact, on the one hand, the Agreement
recognizes the interests of all States in developing their fishing sectors in accordance
with their national policies,
6 whilst on the other hand stipulating that each party shall
take the necessary measures to ensure that fishing vessels do not engage in any
activity that undermines the effectiveness of international conservation and management measures.
7 Since the Agreement gives prominence to the conservation and
management measures adopted at international level,
8 whilst not providing a clear
definition, it follows that a ‘necessary’ compatibility must be achieved between
national measures and those adopted at supranational level, thus obliging State
practice to produce norms in conformity with the established body of international
rules.
9
The FAO Code of Conduct for Responsible Fisheries
10 is also a relevant instrument here. A doctrinal controversy persists as to the nature of the instruments of ‘soft
law’ (its non-binding nature; production of a specific kind of ‘norms’; instruments
designed to influence State practice or real rules). The Code is clearly a ‘soft law’
instrument designed to be voluntarily applicable on a global basis. Following the
approval of the Code, an effort was made for guidelines to be adopted which, in our
view, constitute a mix of concepts of a technical nature and guidance intended to be
taken into consideration by the national administrations. In the latter case, one could
refer to the recommendations on management processes for the institutional role
played by the various actors in the sector. The general framework provided by the
Code has to find an adequate, but permanent, response in the legal system of the
States for its requirements to be met, namely regarding the instruments for control of
catches, which are of the utmost importance in any conservation policy. This is of
relevance in spaces under national jurisdiction as well as in areas beyond national
5 Approved on 24 November 1993 by Resolution 15/93 of the Twenty-Seventh Session of the FAO
Conference. Entered into force on 24 April 2003.
6 Cf. the Preamble of the Agreement.
7 Cf., inter alia, Art. III, 1 (a) and Art. V, 1 and 2 of the Agreement.
8 The definition provided by Art. I (b) of the Agreement is the following: “‘international conservation and management measures’ means measures to conserve and manage one or more species
of living marine resources that are adopted and applied in accordance with the relevant rules of
international law as reflected in the 1982 United Nations Convention on the Law of the Sea (. . .).”
9 Another important instrument, in this context, is the Agreement on Port State Measures to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated Fishing (approved by the FAO Conference at its Thirty-sixth Session in 2009. Entered into force on 5 June 2016). For the aspects related
with the national space, Cf. Tsamenyi and Hanich (2013), pp. 109–119.
10 Adopted through Resolution 4/95 by the FAO Conference on 31 October 1995. For a general
analysis, Cf. Cardoso (2000), pp. 227–240; Courtil (2009), pp. 87–97; Treves (2014), pp. 301–307.
6 Considerations on Some Global Institutional Challenges Within the Context of. . .
113