RECENT DEVELOPMENTS IN OCEAN LAW AND POLICY

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RECENT DEVELOPMENTS IN OCEAN LAW AND POLICY

• ABA ANNUAL MEETING
• SAN FRANCISCO
• August 11, 2007
• INTERNATIONAL LAW OFFICES OF SAN DIEGO
• PETER H. FLOURNOY
• www.international-law-offices.com

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LANGUAGE

• FISHERIES ANADROMOUS, CATADROMOUS, PELAGIC,
  GROUNDFISH, COASTAL PELAGIC, HIGHLY MIGRATORY
  SPECIES, STRADDLING STOCKS, REEF FISH,
  INVERTEBRATES
• GEAR TYPES TRAWL, PURSE SEINE, LONG LINE, POLE
  AND LINE (HOOK AND LINE), TROLL, DRIFT NET, FISH
  TRAP, CYANIDE, DYNAMITE
• ORGANIZATIONS COUNCILS, RFMOs

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FISHERY MANAGEMENT COUNCILS

• Magnuson- Stevens Conservation and Management Act
  of 1976, as amended through December of 2006.
• 8 Fishery Management Councils
• New England, Mid-Atlantic, South Atlantic,
  Caribbean, Gulf, Pacific, North Pacific, Western
  Pacific
• Council Members Federal, State, Tribal, Public
• Advisory Panels often by species/gear type
• Scientific and Statistical Committee
• FMPs Fishery Management Plans

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FISHERY MANAGEMENT COUNCILS

• Types of Fisheries managed
• Anadromous Salmon bilateral and multilateral
• Coastal Pelagic Squid unilateral and access
  agreements GIFAs
• Shared or Straddling Stocks Pacific Whiting
  bilateral, Halibut -- multilateral
• Highly Migratory Species Tuna and Swordfish -
  multilateral

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CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT
REQUIREMENTS, AND RFMOs

• History of HMS Jurisdiction and Magnuson Act
  Requirements
• When MSAct passed in 1976 to set up the
  equivalent of EEZs U.S. did not recognize any
  countrys jurisdiction over HMS in their zones
• Provision for State Department slot on Councils
  was to advise on GIFAs
• 1992 Recognition of Other Countries Jurisdiction
  With Critical Caveat that HMS Must be Managed
  Multilaterally by RFMOs

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CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT
REQUIREMENTS, AND RFMOs

• Amendment to Sections 303(a) and 302(h) requiring
  Councils to Set annual catch limits for all
  species included in their FMPs including HMS
• NOAA-NMFS Guidance States Discards and all
  fishing mortality Including Rec and Sport must Be
  included Lack of Data

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CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT
REQUIREMENTS, AND RFMOs

• overfishing occurring
• overfished
• Prior Interpretation Council Had to Do an
  Amendment to the FMP 2 year process
• Current Interpretation After Amendment to Section
  304 by adding 304 (i) (or (j)) is develop
  recommendations for domestic regulations to
  address the relative impact of fishing vessels of
  the US on the stock

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REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS

• North Pacific Anadromous Fish Commission
• International Pacific Halibut Commission
• Antarctic Living Marine Resources
• Tuna (HMS) RFMOs

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TUNA (HMS) RFMOs

• IATTC -Inter-American Tropical Tuna Commission
• IOTC Indian Ocean Tuna Commission
• ICCAT International Commission for the
  Conservation of Atlantic Tunas
• WCPFC Western and Central Pacific Fisheries
  Commission
• CCSBT Commission for the Conservation of
  Southern Blue fin Tuna

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KOBE, JAPAN January 22-26,
2007

• Share and Co-ordinate Data And Stock Assessments
• Work Collectively to End IUU (Illegal,
  Unregulated, Unreported) Fishing
• Develop Procedures for Allocating Fishing
  Opportunities
• Capacity Controls
• Establish Decision Making Processes
• Promotion of  Compliance With RFMO Resolutions
• Development of Monitoring, Control, and
  Surveillance (MCS) Measures
• Monitor Catches from Vessels to Market
• RFMO Performance Review
• Ecosystem Approach to Fisheries Management
• Coordination of meetings

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1982 U.N. LAW OF THE SEA CONVENTION

• In Force Since November 16, 1994
• Ratified by 155 Countries
• Not Ratified By the United States
• Priority of Bush Administration Since The
  Beginning
• Passed Unanimously By Senate Foreign Relations
  Committee In 2006
• Better Chance With Absence of Amb. Kilpatrick
• and Senator Helms
• Prognosis Not Good

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U.N. HIGHLY MIGRATORY SPECIES AND STRADDLING FISH
STOCKS AGREEMENT

• In Force Since 11 December 2001
• Ratified by 67 Countries (UNCLOS 155)
• Ratified by United States
• Not Ratified by Japan, Korea, China
• July 2006 Review Conference

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WESTERN AND CENTRAL PACIFIC FISHERIES CONVENTION

• Enabling Legislation Part of MS Act Amendments
• Five U.S. Commissioners
• U.S. industry
• WPFMC
• PFMC
• Federal PIRO Director
• Public Interest ENGO?

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WCPFC

• Advisory Committee
• Guam, American Samoa, Northern Marianas
• Payment of out of pocket expenses
• Attendance at U.S. Commissioners Meetings
• Attendance at Government to Government Meetings
  (?)
• Administrative Procedures Act does not apply

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ANTIGUA CONVENTION (Update of IATTC)

• Ratified by U.S.
• Ratified by 8 Countries
• Belize, Korea, El Salvador, France, Mexico,
  Nicaragua, Panama, E.U.
• Entry Into Force Likely by 2008
• Implementing Legislation Languishes
• Current Members of IATTC
• Costa Rica, France, Ecuador, El Salvador,
  Guatemala, Japan, Korea, Mexico, Nicaragua,
  Panama, Peru, Spain, U.S., Venezuela, Vanuatu

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NEW AMENDMENT TO PUNISH IUU FISHING

• Definition by NMFS overly broad
• NMFS Guidance check out the web-sites
• NMFS Presentation
• Recent Actions (Bud Walsh covered)

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INTERNATIONAL AGREEMENTS CONCERNING LIVING
MARINERESOURCES OF INTEREST TO NOAA FISHERIES

• ATLANTIC OCEAN
• International Convention for the Conservation of
  Atlantic Tunas (Basic Instrument for the
  International
• Commission for the Conservation of Atlantic Tunas
  -- ICCAT)
• Convention for the Conservation of Salmon in the
  North Atlantic Ocean (Basic Instrument for the
  North
• Atlantic Salmon Conservation Organization --
  NASCO)
• Convention on Future Multilateral Cooperation in
  the Northwest Atlantic Fisheries (Basic
  Instrument for
• the Northwest Atlantic Fisheries Organization --
  NAFO)

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Cont.

• PACIFIC OCEAN
• Agreement on the International Dolphin
  Conservation Program (AIDCP)
• Convention for the Establishment of an
  Inter-American Tropical Tuna Commission (IATTC)
• Convention for the Preservation of the Halibut
  Fishery of the Northern Pacific Ocean and Bering
  Sea (Basic
• Instrument for the International Pacific Halibut
  Commission -- IPHC)
• Convention for the Conservation of Anadromous
  Stocks in the North Pacific Ocean (Basic
  Instrument for
• the North Pacific Anadromous Fish Commission
  NPAFC)
• Treaty Between the Government of the United
  States of America and the Government of Canada
• Concerning Pacific Salmon (Basic Instrument for
  the Pacific Salmon Commission PSC)

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PACIFIC (CONT.)

• Convention on the Conservation and Management of
  Pollock Resources in the Central Bering Sea
• Treaty Between the Government of the United
  States of America and the Government of Canada on
  Pacific
• Coast Albacore Tuna Vessels and Port Privileges
• Treaty on Fisheries Between the Governments of
  Certain Pacific Island States and the Government
  of the
• United States of America (South Pacific Tuna
  Treaty -- SPTT)
• Multilateral High-level Conference on the
  Conservation and Management of Highly Migratory
  Fish Stocks
• in the Western and Central Pacific (Western and
  Central Pacific Fisheries Convention-WCPFC)

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SOUTHERN OCEAN

• Convention for the Conservation of Antarctic
  Marine Living Resources (Basic Instrument for the
• Commission for the Conservation of Antarctic
  Marine Living Resources CCAMLR)
• Convention for the Conservation of Antarctic
  Seals (CCAS)

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AND

• WESTERN HEMISPHERE
• Inter-American Convention (IAC) for the
  Protection and Conservation of Sea Turtles
• GREAT LAKES
• Convention on Great Lakes Fisheries Between the
  United States and Canada (Basic Instrument for
  the
• Great Lakes Fishery Commission GLFC)
• GLOBAL
• Agreement on the Conservation of Albatrosses and
  Petrels (ACAP)
• Convention on Biological Diversity (CBD)
• Convention on International Trade in Endangered
  Species of Wild Fauna and Flora (CITES)
• International Whaling Commission (IWC)

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USEFUL WEBSITES

• U.S. Mission to the U.N.
  http//www.usunnewyork.usmission.gov/index.htm
• National Marine Fisheries Service
• http//www.nmfs.noaa.gov/
• State Department Telephone Directory
  http//www.foia.state.gov/alphalisting
• NOAA-NMFS Magnuson Act Amendments
  http//wwwnmfs.noaa.gov/msa2007/
• U.S. Commission on Ocean Policy
  http//www.oceancommission.gov/
• NOAA Office of International Affairs
  http//www.nmfs.noaa.gov/ia/index.htm

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QUESTIONS ?

• What happened to 90 of the big fish?
• Are we, or sharks, at the top of the food chain?
• Why is NMFS worse than the IRS?
• Where have all the sea turtles gone?