guidelines serve to articulate collective understandings about marine resources that
were not made explicit in UNCLOS.
The guidelines provide specific guidance to States linking human needs with
ecological needs. In UNCLOS, Article 63 provides that where two States share a
stock between their exclusive economic zones, the States should either directly or
through an intergovernmental organization “agree upon the measures necessary to
coordinate and ensure the conservation and development of such stocks.” This
Article appears to focus primarily on the “needs” of the stock. The FAO guidelines
enhance Article 63 by reminding States that share fishery resources not just to
coordinate conservation but also “to ensure that the tenure rights of small-scale
fishing communities” are protected in transboundary contexts.
44
As with other terms found in the UNCLOS text such as “associated species”, the
Guidelines provides additional understandings of how States and other stakeholders
should interpret the treaty. Article 94 provides that flag states have a duty to “ensure
safety at sea” in relation to “labour conditions. . .taking into account the applicable
international instruments.” Principle 6.12 of the guidelines spells out expectations
for States. Specifically, that States should in order to protect human rights for smallscale fishers “address occupational health issues and unfair working conditions of all
small-scale fishers and fish workers” and ensure that systems do not have forced
labour. While the Guidelines are not binding, they may be relied upon by States in
developing their labour laws and other groups to put political pressure on States to
reform laws. For example, in Southeast Asia, a multi-stakeholder group funded by
International Fund for Agriculture and Development including fishing communities
and government representatives met in 2016 to develop a “Southeast Asian Regional
Approach” to implementing the FAO guidelines through a series of “action points”
all of which were specifically tied to the content of the FAO guidelines.
45 The
development of these guidelines offer States a normative tool to implement not just
UNCLOS obligations but also other international legal obligations including the
progressive realization of economic and social development rights.
3.4 Flag State Performance
While the issue of flag State responsibility for IUU fishing activities is not directly
addressed in UNCLOS, the International Tribunal for the Law of the Sea has
recognized that flag states have general obligations particularly under Article
44 Id. at Principle 5.19.
45 Regional Workshop on Securing Sustainable Small-Scale Fisheries in the Lower Mekong Region:
SSF Guidelines in Action (30 April–1 May, 2016), Thailand. Available at https://sites.google.com/
site/ssfguidelines/thailand/statement.
12 UN Food and Agriculture Organization: Exercising Legal Personality to Implement. . . 215
were not made explicit in UNCLOS.
The guidelines provide specific guidance to States linking human needs with
ecological needs. In UNCLOS, Article 63 provides that where two States share a
stock between their exclusive economic zones, the States should either directly or
through an intergovernmental organization “agree upon the measures necessary to
coordinate and ensure the conservation and development of such stocks.” This
Article appears to focus primarily on the “needs” of the stock. The FAO guidelines
enhance Article 63 by reminding States that share fishery resources not just to
coordinate conservation but also “to ensure that the tenure rights of small-scale
fishing communities” are protected in transboundary contexts.
44
As with other terms found in the UNCLOS text such as “associated species”, the
Guidelines provides additional understandings of how States and other stakeholders
should interpret the treaty. Article 94 provides that flag states have a duty to “ensure
safety at sea” in relation to “labour conditions. . .taking into account the applicable
international instruments.” Principle 6.12 of the guidelines spells out expectations
for States. Specifically, that States should in order to protect human rights for smallscale fishers “address occupational health issues and unfair working conditions of all
small-scale fishers and fish workers” and ensure that systems do not have forced
labour. While the Guidelines are not binding, they may be relied upon by States in
developing their labour laws and other groups to put political pressure on States to
reform laws. For example, in Southeast Asia, a multi-stakeholder group funded by
International Fund for Agriculture and Development including fishing communities
and government representatives met in 2016 to develop a “Southeast Asian Regional
Approach” to implementing the FAO guidelines through a series of “action points”
all of which were specifically tied to the content of the FAO guidelines.
45 The
development of these guidelines offer States a normative tool to implement not just
UNCLOS obligations but also other international legal obligations including the
progressive realization of economic and social development rights.
3.4 Flag State Performance
While the issue of flag State responsibility for IUU fishing activities is not directly
addressed in UNCLOS, the International Tribunal for the Law of the Sea has
recognized that flag states have general obligations particularly under Article
44 Id. at Principle 5.19.
45 Regional Workshop on Securing Sustainable Small-Scale Fisheries in the Lower Mekong Region:
SSF Guidelines in Action (30 April–1 May, 2016), Thailand. Available at https://sites.google.com/
site/ssfguidelines/thailand/statement.
12 UN Food and Agriculture Organization: Exercising Legal Personality to Implement. . . 215