trainings in good fisheries management. Based on its derivative powers, FAO also
has an independent responsibility to contribute to the conservation of marine natural
resources. This responsibility exists outside of any responsibilities of individual
FAO member States to achieve UNCLOS obligations.
13 While the FAO is not a
party to UNCLOS, it has responsibilities under the treaty related to its delegated
powers including an obligation to ensure that “the maintenance of the living
resources in the exclusive economic zone is not endangered by over-exploitation”
due to poor management by coastal States.
14
In exercising its responsibilities to conserve natural resources, the FAO has
limited options. Whatever derivative powers it has, the FAO does not have the
right to infringe upon a coastal State’s sovereign interests to manage its overexploited exclusive economic zone even if other States might approve of this
intervention. To meet its own responsibilities to achieve conservation of natural
resources as an organization, the FAO also has duties independent of its members’
agendas to initiate meetings with State representatives wherever there is a known
ongoing over-exploitation of living resources. The FAO would not initiate these
diplomatic meetings as a proxy for other States but based on its own legal personality
and capacity to enter into relationships with other international persons.
Under the same theory, the FAO may also have a duty as an international
organization not just to wait for members States to submit information related to
fish stocks but to compile independent fisheries statistics.
15 While the FAO is
currently collecting and analysing large amounts of catch data including fishing
effort data, it is interesting to think about whether the FAO also might have a duty
based on its derivative powers to undertake FAO-led marine scientific research and
data collection activities in currently data-poor fisheries including EEZ based
fisheries.
The combination of delegated and derivative powers forming an organization’s
legal personality explains in part how the FAO has been a relatively innovative actor
in the field of fisheries governance. Where many States have taken only minimal
domestic or bilateral steps to reform fisheries governance, the FAO has offered
several novel reform approaches for States to manage their fisheries and their fishing
industries more effectively. FAO has taken a role of leadership where it might
otherwise have waited for interested States among its membership to take the lead.
The following section highlights a few examples of influential FAO initiatives
contributing to improved UNCLOS implementation.
13 This conclusion is based on analogizing with the ICJ’s analysis of the United Nations as an
intergovernmental organization. See Reparation of or Injuries Suffered in the Service of the United
Nations I.C.J. Reports 1949, p. 177 (“It must be acknowledged that its Members, by entrusting
certain function to it, with the attendant duties and responsibilities, have clothed it with the
competence required to enable those functions to be effectively discharged”).
14 Art. 61(2), UNCLOS.
15 UNCLOS, Art. 61(5) and Art. 119 (“Available scientific information, catch and fishing effort
statistics, and other data relevant to the conservation of fish stocks shall be contributed and
exchanged on a regular basis through competent international organizations”).
206
A. Telesetsky
has an independent responsibility to contribute to the conservation of marine natural
resources. This responsibility exists outside of any responsibilities of individual
FAO member States to achieve UNCLOS obligations.
13 While the FAO is not a
party to UNCLOS, it has responsibilities under the treaty related to its delegated
powers including an obligation to ensure that “the maintenance of the living
resources in the exclusive economic zone is not endangered by over-exploitation”
due to poor management by coastal States.
14
In exercising its responsibilities to conserve natural resources, the FAO has
limited options. Whatever derivative powers it has, the FAO does not have the
right to infringe upon a coastal State’s sovereign interests to manage its overexploited exclusive economic zone even if other States might approve of this
intervention. To meet its own responsibilities to achieve conservation of natural
resources as an organization, the FAO also has duties independent of its members’
agendas to initiate meetings with State representatives wherever there is a known
ongoing over-exploitation of living resources. The FAO would not initiate these
diplomatic meetings as a proxy for other States but based on its own legal personality
and capacity to enter into relationships with other international persons.
Under the same theory, the FAO may also have a duty as an international
organization not just to wait for members States to submit information related to
fish stocks but to compile independent fisheries statistics.
15 While the FAO is
currently collecting and analysing large amounts of catch data including fishing
effort data, it is interesting to think about whether the FAO also might have a duty
based on its derivative powers to undertake FAO-led marine scientific research and
data collection activities in currently data-poor fisheries including EEZ based
fisheries.
The combination of delegated and derivative powers forming an organization’s
legal personality explains in part how the FAO has been a relatively innovative actor
in the field of fisheries governance. Where many States have taken only minimal
domestic or bilateral steps to reform fisheries governance, the FAO has offered
several novel reform approaches for States to manage their fisheries and their fishing
industries more effectively. FAO has taken a role of leadership where it might
otherwise have waited for interested States among its membership to take the lead.
The following section highlights a few examples of influential FAO initiatives
contributing to improved UNCLOS implementation.
13 This conclusion is based on analogizing with the ICJ’s analysis of the United Nations as an
intergovernmental organization. See Reparation of or Injuries Suffered in the Service of the United
Nations I.C.J. Reports 1949, p. 177 (“It must be acknowledged that its Members, by entrusting
certain function to it, with the attendant duties and responsibilities, have clothed it with the
competence required to enable those functions to be effectively discharged”).
14 Art. 61(2), UNCLOS.
15 UNCLOS, Art. 61(5) and Art. 119 (“Available scientific information, catch and fishing effort
statistics, and other data relevant to the conservation of fish stocks shall be contributed and
exchanged on a regular basis through competent international organizations”).
206
A. Telesetsky