Environmental law, Publications, Uncategorized

Richard Caddell’s new book: Strengthening International Fisheries Law in an Era of Changing Oceans

Our very own Richard Caddell sat down with us to talk about his new book, (with co-editor Erik Molenaar) Strengthening International Fisheries Law in an Era of Changing Oceans, with Hart Publishing. Comprising 18 chapters and running to almost 500 pages, it is a very substantial work, with a strong socio-eco-legal orientation (there are contributors from many different disciplines).

Ben Pontin asks Richard some questions about the thinking behind the book, and its main contributions, and about what inspired interest in the marine environment. 

When did you become interested in marine environmental issues and why?

Growing up in the landlocked south Wales valleys is perhaps not the most obvious place to foster an interest in the sea, but marine issues have been important to me since a very early age. One of my earliest memories was watching transfixed as the raising of the Mary Rose became the televisual event of 1982 and being allowed to stay home from primary school to see the first bits of timber nudge above the waves in the wreck’s iconic yellow cage. Some twenty years later I would write my LLM dissertation at Cardiff on the legal regulation of historical wrecks, based on that enduring fascination with sunken vessels.

Sea life has always fascinated me. As a young boy I once surreptitiously brought back a crab in my plastic bucket after one trip to the seaside. I don’t remember my Dad being entirely thrilled at discovering the stowaway, but “Crabby” lived in a tank in the shed and lived to a ripe old age of 5 on a diet of fishfingers. I’d hasten to add that I’ve not removed any marine ecosystem components since… Despite this longstanding interest in marine conservation, I hadn’t expected to have been able to pursue this as a professional interest once I had opted to study law. Then, serendipitously, the night before the module choices for my final year options were due to be submitted, I caught a brief segment on Newsnight about tankers navigating through the Turkish straits – or, more to the point, that the tankers were getting progressively bigger while the straits themselves were keeping to their original geographical dimensions, raising fears over an impending marine calamity. I saw that there was an option to study Maritime Law, took it and loved it. Suddenly, from being a rather less-than-enthusiastic law student, I found exactly what I wanted to do.

My maritime law studies led to a PhD on the regulation of cetaceans (whales, dolphins and porpoises) and I’ve been working on marine conservation issues ever since. It has led to some fascinating projects – from addressing the legal status of stranded an rehabilitated dolphins, to looking at regenerating marine ecosystems and assessing the limits of protest rights at sea, and more recently to spending a number of years wrestling with the regulation of fisheries (which has become particularly timely in the current Brexit context).

The title of your edited collection contains the phrase ‘Era of Changing Oceans’. What main changes are you thinking of and is there a distinction to be drawn between changes that are ‘natural’ and human-led?

The book project grew out of a postdoctoral fellowship that I undertook between 2014 and 2017 at the Netherlands Institute for the Law of the Sea at Utrecht University, funded under the Nereus Program of the Nippon Foundation. It is a pioneering programme bringing together scientists, ecologists, environmental modellers, policy experts – and the occasional stray lawyer – to consider what the most pressing threats will be to the ocean environment in the future and how we might start to better prepare for them in advance. The emphasis of the Nereus Program has been on fisheries and the threats facing stocks, ecosystems and societies through climate change.

We are already seeing dramatic changes to fish distributions, phenology and other important life cycle events, which have significant legal, political and even security issues (both in terms of food security and the scope for actual conflict over the equitable distribution of resources). While coastal communities have always reported natural changes in catches, these have tended to have balanced out over time. Human-led changes are far more dramatic and are starting to generate enormous distributional changes. Indeed, with 5 other Nereus Program colleagues, last year we published the first projections of shifting fish distributions in Science, revealing that 892 different commercially-significant stocks are likely to shift within the course of the present century, moving into different zones of national (and international) jurisdiction and raising the prospect of significant management challenges that present legal and political frameworks are ill-suited to meet at present.

You single out Australia and the United States are countries which have been successful in rebuilding fish stocks through law and its implementation. This is interesting because these are not countries that one would consider leaders in some other environmental fields (eg climate change). What is it about fish conservation that has inspired these countries to take a lead? Are there countries which have a particularly poor record of respect for the law and its enforcement?

I think there is an array of factors at work here in both jurisdictions. Firstly, fisheries are of immense strategic and economic importance to both Australia and the US, so there is of course a significant element of self-interest at stake, as there is for any other country. I think it’s also important to separate the political leaders from the exceptional array of conservation specialists in both countries – it’s possible to exercise scientific leadership in spite of the anti-environment mentalities of the current administrations. Another interesting factor at work is that both states – although arguably the US rather more than Australia – have framed environmental laws with a significant degree of extra-territorial application, and broad standing to bring legal actions. This also has the effect of by-passing an unfriendly political incumbent. For example, NGOs and other actors have used the threat of trade sanctions inherent in particular legislation to force successive US Presidents to bring other countries into line on the use of driftnets – particularly Italy, which has a chequered record on these types of netting. The US Lacey Act has also been helpful as a deterrent towards those who see (low level) fines as being the cost of doing business in particular jurisdictions, and both countries have been very active in trying to address the problems posed regionally and globally by illegal fishing. Illegal fishing does unfortunately remain an enormous problem. This is less an issue of particular states operating rogue fleets that fish indiscriminately and with no regard for the law, and more a failure of governance in certain countries, which create the type of conditions that allow illegal operators to flourish.

Many countries simply lack the capacity to inspect vessels properly, have endemic corruption, see fisheries problems as something of a victimless crime and have been unable to enforce the law effectively. This is also usually the tip of the iceberg of criminal enterprise, however – the fishing industry in particular areas of the world is sadly synonymous with human trafficking and labour rights violations, while fishing vessels are also used to traffic drugs, weapons, human beings and other illicit cargos. The UN is trying to address so-called “fisheries crime”, but as we highlight in the book, one of the problems is that “fisheries crime” and “illegal fishing” are two distinct concepts and we have not yet had the joined-up thinking necessary to attack those criminal enterprises for which fisheries is merely one element of a wider portfolio of clandestine activity.

Your chapter ‘International Fisheries Law and Interactions with Global Regimes and Processes’ argues that the United Nations General Assembly plays an ‘understated, yet vitally important role’ alongside more specialist institutions and laws. What example would you choose as best illustrating this role?

The most significant recent example of this for me would be the development through the UN General Assembly (UNGA) of the concept of “Vulnerable Marine Ecosystems” (VMEs), which first started appearing in UNGA Resolutions in 2004 and has since become an ubiquitous addition to the lexicon of ocean governance. VMEs are sensitive areas of the seabed, usually involving submarine structures such as thermal vents, around which deep-sea species tend to aggregate. Unfortunately, for decades deep-water trawling has been chronically under-regulated and heavy trawl nets would be dragged across the ocean floor, destroying these vital ecosystems in the process (as well as catching species that are ill-suited to large-scale commercial exploitation). Since 2004, the regulatory impetus provided by the UNGA on this issue has prompted states acting through Regional Fisheries Management Organisations (RFMOs) and, in some instances, on their own initiative to introduce a series of restrictions on fishing around VMEs. This hasn’t solved all the problems of deep-water fishing by any stretch of the imagination, but it has had a dramatic effect on state practice and the ecological aspirations of RFMOs. This echoes the pioneering restrictions that the UNGA introduced in the early 1990s on the use of large-scale driftnets, which were another serious environmental concern. In this way, the UNGA has proved to be a convenient regulatory avenue to promote greater accountability and sustainability in particular commercial fisheries. It doesn’t have all of the answers, but it is capable of promoting changes to certain behaviours. It also provides an annual forum to consider how fisheries management can be improved on a global scale and its annual Sustainable Fisheries Resolution represents something of a “state of the nation” on what needs to be done.

What did you hope to achieved by putting together this collection and are you happy with the result?

One of our main aspirations with this collection was to bring together current thinking on fisheries regulation. Although there had been a flurry of regulatory activity in the mid-1990s with the introduction of a series of highly significant new treaties (with a concomitant volume of academic work), fisheries had since rather faded into the background again and we felt that it was a timely opportunity to consider what had been achieved by these legal instruments. There had also been a considerable number of new developments – notably a host of new RFMOs had been established, important judicial pronouncements had been made on fishing and trade – and we had a sense that a lot of intriguing practice was also bubbling away under the surface. Moreover, we also suspected that fisheries law was largely persisting with the same solutions to problems and had not made a great deal of headway on particular issues (such as illegal fishing) and we wanted to explore other elements of the regulatory toolkit, while also considering emerging practices in fields specific to fisheries, such as by-catch, area closures and environmental assessment possibilities. Erik and I also felt strongly that although the book should be legalistic at heart, other disciplines were also a vital part of the conversation, so we also invited natural scientists, fisheries economists, political scientists and international relations specialists to contribute. We’re delighted with the result and feel that we have brought together a very rounded picture of the current regulatory system, highlighting both its strengths and weaknesses, in a manner that is accessible to all those with a professional interest in international fisheries governance.

Have you had any feedback on your book?

The book has only been published fairly recently, but we’ve had some great feedback from the community of fisheries lawyers and other marine specialists. I have had the opportunity to present some of the work that I had contributed to the book in a number of forums around the world, and the ideas on using different legal regimes such as criminal, labour and human rights law to drive improvements in fisheries management have had some traction there. I also had the wonderful opportunity to present the main messages from the book at the second session of the Intergovernmental Conference on the development of a new agreement on the conservation of marine biodiversity beyond national jurisdiction at the UN in New York in March 2019, which was also very well received.

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