12.1 Introduction
Climate change is altering the ocean through warming, acidification, deoxygenation and other stressors. Taking the troubling state of global fish stocksFootnote 1 and the decline in global biodiversity levelsFootnote 2 into account, this paints an alarming picture.Footnote 3 A pervasive yet overlooked issue is the impact of climate change on the distribution of fish stocks and other marine species (marine living resources or MLRs), which causes governance issues and threatens the rule of law for the oceans. For example, when fish move across static jurisdictional and management boundaries, they may become unregulated and risk being overexploited.Footnote 4 Shifting fish stocks threaten the certainty, predictability and stability of the international fisheries legal framework. They also undermine conservation and management measures (CMMs) by coastal States and regional fisheries management organisations or arrangements (RFMO/As), impeding sustainable exploitation and conservation of global fish stocks.Footnote 5
To address these challenges, the legal framework applicable to fisheries and marine biodiversity must be flexible and adaptive in response to redistribution of fish stocks across scales, or risk undermining the rule of law. Since this framework does not directly account for species shifts, it has been argued to constitute a ‘governance gap’ requiring urgent attention.Footnote 6
This chapter assesses whether and to what extent the international legal framework adequately places an obligation on States to adapt to the complexities caused by MLRs shifting their location, in order to ensure legal certainty, stability and predictability and maintain the rule of law. First, it outlines the main issues caused by fisheries redistribution (Section 12.2). Second, it assesses whether the key principles and obligations within the international legal framework are fit for purpose to address these issues (Section 12.3). A systemic interpretation of relevant provisions from the United Nations Convention on the Law of the Sea (UNCLOS),Footnote 7 the Fish Stocks Agreement (UNFSA),Footnote 8 the Convention on Biological Diversity (CBD),Footnote 9 the Convention on Migratory Species (CMS),Footnote 10 as well as the international climate law regime,Footnote 11 indicate a general obligation on States, either individually or through RFMO/As to adapt management and conservation of MLRs to the effects of climate change. Section 12.4 explores potential solutions that might strengthen adaptive responses to fisheries redistribution within this framework, thereby helping to maintain the rule of law.
12.2 Fisheries Redistribution under Climate Change
This section provides a brief overview of the ever-growing body of scientific literature on marine species redistribution under climate change, followed by the jurisdictional and managerial challenges this causes, which constitute the so-called governance gap that the international legal framework must address to maintain the rule of law in response to environmental change.
12.2.1 Causes and Consequences
The ocean has been warming faster than previously estimated,Footnote 12 and has become more acidic, particularly at higher latitudes.Footnote 13 Extreme marine temperature events are also increasing in frequency and duration,Footnote 14 as are warming ‘“hotspots’ in different regions of the ocean.Footnote 15
Generally, the response of marine species to changes in temperature is to shift location poleward, or into deeper waters, towards their preferred environmental conditions.Footnote 16 This results in the redistribution of species from their historical locations and across maritime boundaries, causing complications for conservation, management and exploitation of MLRs.Footnote 17 Species shifting poleward due to temperature changes may encounter unsuitable acidity and/or oxygen levels, leaving them squeezed between extremes, causing local extinctions or decreases in abundance.Footnote 18 Latest estimates suggest that on average, fish and other marine species have shifted into new areas at a rate of 70 kilometres per decade.Footnote 19 It has been predicted that 892 MLRs of commercial importance are expected to shift their distribution in the future.Footnote 20
Complications from these changes in distribution and abundance are numerous. They include species leaving designated conservation areas and thus limiting the efficacy of marine protected areas (MPAs).Footnote 21 Inter- and intra-State conflicts can occur over quota allocations as they move across management jurisdictionsFootnote 22 and into deeper waters.Footnote 23 Problems also arise when the distribution of a fish stock becomes less predictable, and ‘are compounded when States act unilaterally to exploit the resultant windfall’.Footnote 24 Conflicts and breakdowns in cooperation can lead to overexploitation of MLRs and environmental damage, undermining the legal objectives of conservation and sustainable use.Footnote 25
12.2.2 The Case for Adaptation
Marine species shifts and their consequences will persist at current rates or accelerate, depending on levels of future warming.Footnote 26 The social and ecological benefits of keeping climate warming to a minimum have been outlined extensively.Footnote 27 Implementation of the 2°C temperature goal in Article 2 of the Paris Agreement (PA) would benefit 75 per cent of coastal States through stabilised or increased catch of MLRs, ~90 per cent of which would occur in developing countries.Footnote 28 Even if current climate warming targets are met, however, some level of environmental change is guaranteed.Footnote 29 Adverse changes cannot be prevented by emission reductions alone, and further warming and acidification of the ocean is unavoidable, making adaptation a necessity.Footnote 30
This considered, the need for international law relating to fisheries and the marine environment to facilitate adaptation to environmental change is necessary to promote resilience to climate change impacts on the oceans and their biodiversity. Though present in the international climate legal regime from the outset, climate adaptation is enshrined in the global goal on adaptation in the PA.Footnote 31 Climate adaptation in anthropogenic systems is considered as ‘the process of adjustment to actual climate and its effects, in order to moderate harm or exploit beneficial opportunities’.Footnote 32 Fisheries are anthropogenic, social-ecological systems, where management decisions and fishing activities undertaken by humans impact marine ecosystems.Footnote 33 Several forms of climate adaptation can take place, that is, ‘planned adaptation’ defined as ‘[a]daptation that is the result of a deliberate policy decision, based on an awareness that conditions have changed or are about to change and that action is required to return to, maintain, or achieve a desired state’.Footnote 34 This is the definition of adaptation used throughout the rest of the chapter.
Several complications face the conservation, management and exploitation of MLRs, complications that result from shifts in distribution due to climate change. Since the applicable international legal framework does not directly account for these, this has been argued as constituting a gap in law and governance,Footnote 35 which undermines legal certainty. Climate change causes uncertainty, instability and change in marine social-ecological systems, that is, fisheries, making adaptation a necessity. Conventional legal and governance frameworks aim to provide certainty and stability, and fisheries redistribution challenges this. Climate change pressurises these frameworks by requiring them to adapt to climate impacts (normative adaptation) so that adaptive action can be taken (practical adaptation). The role of law here is to facilitate action to increase resilience and adaptive capacity of social-ecological systems to climate change, in order to maintain stability and the rule of law.Footnote 36 The next section assesses whether the international legal framework is adequate to facilitate an adaptive response by States to the complexities caused by marine species shifting their location.
12.3 The International Legal Framework: Fit for Purpose?
Several international legal instruments constitute the framework governing States’ rights and obligations with respect to the use of oceans and their resources, including fisheries and protection of the marine environment. Regional agreements and their commissions, including RFMO/As, play a similar role in regional seas or in areas beyond national jurisdiction (ABNJ), providing finer detail for cooperative management needs specific to a certain region. However, the fact that ‘the current legal framework for the international regulation of fisheries does not directly account for fluctuating or changing distributions’Footnote 37 has been argued to constitute a gap in the law and governance regime applicable to MLRs, risking conflict and overexploitation of species and undermining the rule of the law for the oceans.
Working with the legal instruments already at hand in response to such pressing issues is vital, considering the urgent need to adapt. In assessing whether the international legal framework is fit for purpose, this section outlines its relevant features that could facilitate effective adaptation to marine species redistribution. The framework is presented as key obligations and principles within several multilateral instruments. This is done to stress the importance of systemic and evolutive interpretation of the international legal framework to address new challenges to the marine environment, maximise efficiency of existing fragmented legal rules and address and avoid governance gaps, thereby strengthening the rule of law.
12.3.1 Protection and Preservation of the Marine Environment
Part XII of UNCLOS obliges States to protect and preserve the marine environment. This is a general obligation of conduct, of ‘due diligence’ applying to all maritime areas regardless of jurisdiction.Footnote 38 This obligation is erga omnes, and jurisprudential developments over the past twenty years support a progressive, evolutionary interpretation with the provisions covering, inter alia, MLRs.Footnote 39 UNCLOS places responsibility for the conservation and management of fish stocks on coastal States within their exclusive economic zones (EEZs),Footnote 40 and adopting CMMs for all MLRs within their EEZ is mandatory and an ‘integral element’ in the protection and preservation of the marine environment.Footnote 41 States have an obligation to ensure that MLRs within their jurisdiction are not overexploited.Footnote 42 Through this obligation, there is the possibility that national regulations could contribute to far-sighted sustainable management of fish stocks that move into, or straddle, waters in an adjacent State’s jurisdiction due to climate change.Footnote 43 Should new fish stocks appear in a coastal State’s EEZ, that State is under a positive obligation to introduce CMMs for those stocks, cooperating with any neighbouring States whose waters that stock may also inhabit. This can include designation of transboundary or regional MPAs. Cooperation is discussed in greater detail later in Section 3.3.
The CBD is a crucial interpretive tool in this context. Parties must read CBD provisions consistently with UNCLOS,Footnote 44 and these provisions inform and strengthen the marine environmental protection obligations in Part XII.Footnote 45 Parties have adopted commitments to increase MPA coverage by 10 per cent by 2020 as one of the Aichi Biodiversity Targets,Footnote 46 as well as other effective area-based conservation measures.Footnote 47 However, while quantitative progress has been made in meeting the 10 per cent target of MPAs, the qualitative aspect, that is, MPAs that are ecologically representative, well connected and equitably managed, has not received adequate attention.Footnote 48 Moving forward, the first draft of the Post-2020 Global Biodiversity Framework proposes to increase protection to 30 per cent and contribute to climate change mitigation and adaptation through ecosystem-based solutions.Footnote 49
Obligations under the CBD relating to conservation and sustainable use of biological diversity apply to fisheries, fishing activities and conservation of marine biodiversity. Parties have indicated the necessity for further implementation and improvement of the ecosystem approach to fisheries (EAF).Footnote 50 Parties have also committed to achieving Aichi Target 6,Footnote 51 which outlines that by 2020 all fish and invertebrate stocks are managed and harvested legally and sustainably, applying ecosystem-based approaches, so that overfishing is avoided, recovery plans and measures are in place for all depleted species, fisheries have no significant adverse impacts on stocks and species and ecosystems are within safe ecological limits.Footnote 52
With this commitment, parties are expected to engage in sustainable management practices framed by the EAF.Footnote 53 Logically, this should include adaptive management to species redistribution.
Aichi Target 10 commits to minimising additional multiple anthropogenic pressures on vulnerable marine ecosystems already impacted by climate change to maintain their function and integrity.Footnote 54 Implementation of this target can include reduction of overexploitation and harvesting;Footnote 55 for example, in response to arrival of new species, fisheries managers in Tasmania introduced ‘proactive management policies to limit catch of several new species through the introduction of bag limits for recreational fishers, to allow new fish populations to become established’.Footnote 56 While these are helpful components of international legal tools to adapt marine conservation and management to climate change, there are some issues.
The CBD places considerable weight on return to historical conditions and in situ conservation, which could potentially be a barrier to successful adaptive management in response to marine species redistribution. Though inexplicit, the CBD definition of in situFootnote 57 reflects the ecosystem approach (EA),Footnote 58 which parties have committed to applying.Footnote 59 Article 8 provides an exhaustive ‘toolkit of measures to be applied case-by-case to achieve conservation in situ, including inter alia establishing protected areas, rehabilitation of degraded ecosystems and legislation for protection of threatened species.Footnote 60 The definition of in situ has yet to be addressed by CBD parties, and it is recommended that a shift in objective is needed to account for climate change consequences in the environment.Footnote 61 With this in mind, could ‘time-bound’, ‘temporary’ or ‘flexible MPAs be an adaptive response? CBD Article 10 on sustainable use of components of biological diversity supports the notion that MPAs with this characteristic could maintain resilient protection of marine species as they shift location. Since in situ reflects the EA, which, depending on local, regional, national or global conditions, integrates differing legal and management strategies,Footnote 62 it is by nature an adaptive and anticipatory approach.Footnote 63 This considered, MPAs could either be adaptive in the sense that they are not geographically fixed, and can move in response to shifts in distribution, spread across an interconnected ‘patchwork’ or simply be large enough and spread across management jurisdictions that they can accommodate shifts in marine species.
Like the CBD, another interpretative tool of UNCLOS Part XII is the CMS. The CBD has recognised the CMS as a lead partner in the conservation and sustainable use of migratory species over their entire range.Footnote 64 CMS parties are obliged to take necessary steps to conserve migratory species and their habitats.Footnote 65 Article III(4) of the CMS arguably covers climate adaptation and mitigation measures through the obligation to ‘prevent, reduce or control factors that are endangering or are likely to further endanger’Footnote 66 species listed in Appendix I, which includes several species of shark and ray.Footnote 67 This obligation has been elaborated,Footnote 68 including through Resolution 12.21, obliging parties to ‘take into account potential social and environmental impacts on migratory species when developing and implementing relevant climate change mitigation and adaptation action’.Footnote 69 Parties are invited to interpret Article I(1)(c)(4) on ‘favourable conservation status’ in light of climate change ‘particularly with a view to climate-induced range shifts’ and ‘action beyond the historic range of species is compatible with, and maybe be required’ to meet CMS obligations.Footnote 70 This furthers the argument that States have a positive obligation to adapt management and conservation of shifting marine biodiversity. For context, Trouwborst and Blackmore have argued that this is enough to facilitate the necessary climate adaptation measures for large terrestrial carnivores, that is, protected areas, connectivity and dealing with non-climate threats can be achieved through implementation of this obligation.Footnote 71 The same can be argued with regard to international legal obligations to adapt conservation and management of marine species in response to climate change.
12.3.2 UNCLOS Part XII and International Climate Law
The UN Framework Convention on Climate Change and its subsequent instruments constitute the body of international climate law.Footnote 72 UNCLOS obligations for the protection and preservation of the marine environment include atmospheric pollution.Footnote 73 Part XII is informed by other applicable rules of international law,Footnote 74 and any breaches of ‘generally accepted international regulations’ are a breach of Part XII.Footnote 75 Article 212 on pollution of the ocean from or through the atmosphere, for example, brings the PA ‘within the scope of Part XII’.Footnote 76 The supportive interpretation of the two regimes has focused primarily on climate mitigation. The connection with adaption provisions in the climate regime and UNCLOS is not as clear-cut.Footnote 77 As before, there is no direct obligation to adapt to changes in the marine environment due to climate change under UNCLOS; however, adaptation is included as a key response in the international climate change regime.Footnote 78 While it can be argued that these adaptation provisions do inform the obligations of UNCLOS Part XII, they are, unlike climate mitigation provisions, not target-based in nature.
Article 7 of the PA establishes the global goal on adaptation, enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, and parties have recognised that there is significant need for adaptation.Footnote 79 Understandably, the goal is general and does not point to specific targets, or how much or how little adaptation a party should undertake. Parties are obliged to strengthen their cooperation on adaptation enhancement through the Cancún Adaptation Framework, with sharing of information and practices, institutional arrangements, scientific knowledge, assisting developing countries in identifying adaptation practices and improving the effectiveness and durability of adaptation action.Footnote 80 Regional cooperation on adaptation is also specified in Article 7(7) of the PA.
Since the PA is universal in scope and applies to the ocean, parties can include adaptation to the effects of the marine environment within their national determined contributions (NDCs) – a set of national targets to inter alia reduce emissions and adapt to the effects of climate change. Some parties have already done this; however, only 33 per cent of NDC adaptation components submitted in early 2021 referred to the ocean, while 39 per cent mentioned fisheries as a specific adaptation sector or priority.Footnote 81 This suggests greater effort is needed by States in including marine issues into climate adaptation, let alone species redistribution.
With regard to international fisheries management, recent analysis has shown that decisions by some RFMO/As do consider climate change legal developments, which has increased over time since 2002.Footnote 82 However, the majority of these decisions have been focused on learning climate issues, rather than active management decisions in response to climate change.Footnote 83 It is clear that adaptive action to climate change is necessary to adequately fulfil the obligation to protect and preserve the marine environment; however, this obligation must be informed at national level by States in their interpretation and application of the adaption provisions of the climate legal regime.
12.3.3 Cooperation with Relevant States
International cooperation is vital for effective governance of marine species redistribution. Adaptation-based management must be achieved through increasing international and inter-State cooperation to either maintain or create transboundary agreements on conservation and exploitation of MLRs that may appear in new jurisdictions due to climate change.Footnote 84 Cooperation is considered fundamental in fulfilling the obligations of Part XII,Footnote 85 and enshrined in terms of conservation and exploitation of MLRs on a global or regional basis, considering regional features and protection of the marine environment in UNCLOS Article 197. Where a coastal State borders an enclosed or semi-enclosed sea, Article 197 is achieved through cooperation directly or through a regional organisation.Footnote 86 An example of fulfilling this duty would be through joining and participating in a regional marine environment body such as the Convention for the Protection of the Marine Environment in the North-East Atlantic, which facilitates international cooperation on environmental protection in that area.Footnote 87 CBD Article 5 outlines obligations to cooperate for the conservation and sustainable use of biological diversity.Footnote 88 Article 10(e) encourages cooperation between government authorities and the private sector in developing methods for sustainable use of biodiversity.Footnote 89 Parties to the CMS are obliged to cooperate in the conservation of species and habitat of migratory species.Footnote 90 As previously, these obligations should be read to support UNCLOS Part XII.
States bear ‘both an individual and collective duty to cooperate’Footnote 91 in the conservation of MLRs,Footnote 92 and in the management, conservation and exploitation of transboundary fish stocks existing in the EEZs of two or more coastal States,Footnote 93 and on the High Seas.Footnote 94 Importantly, the biological unity of transboundary stocks is considered in their management, requiring cooperation across international and regional scales. Article 8 UNFSA elaborates and institutionalises this duty through establishment or joining of RFMO/As.Footnote 95 States are also required to cooperate within these organisations to improve their effectiveness in establishing and implementing CMMs for straddling and HM fish stocks.Footnote 96 Some RFMO/As conventions uphold the duty to cooperate,Footnote 97 and some have made a conscious effort to cooperate between organisations in response to species redistribution, though active improvement is necessary.Footnote 98
12.3.4 Use of the Best Available Science
Scientific research is central to developing and maintaining knowledge and understanding of the marine environment. This is necessary for informing natural resource managers’ decisions and solutions. States are obliged under UNCLOS and the UNFSA to use the best science available in managing fish stocks within their jurisdiction,Footnote 99 and for transboundary stocks.Footnote 100 Molenaar argues that ‘a qualified obligation on climate-change adaptation can be derived’ from this obligation.Footnote 101 In addition, to implement the precautionary principle and the EA, States are obliged to improve the decision-making process for MLR conservation and management by obtaining and sharing the best available scientific information, as well as improving and implementing techniques dealing with risks and uncertainty.Footnote 102 States must also determine stock-specific reference points based on the best science available and action to be taken when exceeded.Footnote 103 Emergency measures too must be based on the best available science.Footnote 104 UNFSA and RFMO/A conventions contain obligations to promote cooperation in utilisation of the best science.Footnote 105 The CMS also obliges States to use the best scientific evidence available to indicate that a migratory species is endangered.Footnote 106
12.3.5 Interim Conclusions
This section sought to outline the relevant international legal obligations to address the question of whether the international legal framework is fit for purpose in fostering adaptation by States to the complexities caused by fish and other marine species shifting their location across management jurisdictions. The author is inclined to answer in the affirmative, considering that there are no barriers on States in the framework that prevent or discourage adaptation in this context. However, the lengths that States go to in implementing adaptation measures is dependent on their interpretation and application of the relevant provisions in international climate law, and how these are applied to the marine environment. Adaptation measures must be informed by use of the best scientific evidence available, and of course cooperation between relevant States as MLRs shift across management boundaries. As such, the framework is adequate, but the efficacy of the framework to facilitate adaptation, and maintain the rule of law, depends on implementation of the obligations outlined in this section. The final section explores solutions that may aid in this.
12.4 Adaptive Responses to Fisheries Redistribution: Strengthening Solutions
Having attested to the adequacy of the international legal framework to facilitate adaptation to fisheries shifting distribution under climate change, this section briefly outlines two potential solutions that reflect the urgency of the need to adapt, and could help further strengthen the rule of law in this area.
The first involves exploiting the potential of the precautionary principle and EAF in implementing the obligations outlined earlier. The precautionary principle in combination with the obligation to cooperate could help in pushing States to agree pre-emptively to ensuring bi- or multi-lateral fisheries agreements for a stock that may become transboundary. This could prevent conflicts arising when a fish stock shifts primarily into the jurisdiction of one State, which might be inclined to exploit that stock unilaterally.Footnote 107 Considering the EAF, which is widely accepted and called for in various international instruments,Footnote 108 aims to apply a holistic approach and account for ecosystem structure and function, and considers transboundary species and ecosystems,Footnote 109 is an important feature in addressing the problem of climate driven shifts. However, since depletion of some and arrival of new species due to climate change creates novel ecosystems, this complicates application of the EAF. In order to address this, guidelines on the application and implementation of the EAF should be revisited in light of climate change.Footnote 110
The second taps into the role of the Food and Agriculture Organization of the United Nations (FAO) and its role in developing the international legal framework for fisheries and the marine environment. The FAO has developed a plethora of scientific and technical documents on the impacts of climate change and fisheries,Footnote 111 as well as on the EAF,Footnote 112 and also provides technical assistance to RFMO/As. The FAO Committee on Fisheries (COFI) recommended its members to strengthen efforts to assess change in distribution of fish species in response to climate change.Footnote 113 The FAO has adopted many legally binding and non-legally binding instruments that aid various fisheries and marine environmental obligations. COFI has requested development of guidelines that focus on climate change impacts on fisheries in recent years.Footnote 114 These could perhaps aid in developing the EAF vis-à-vis climate change, facilitate cooperative management both bilaterally and within an RFMO/A context, and as such would be incredibly valuable in assisting States in implementing their obligations to adapt fisheries management in response to climate change.
To conclude, the international legal framework can facilitate adaptation to marine species redistribution under climate change, and can be described as adequate at best, and not a barrier at worst. There is a greater need for States and legal researchers to engage with the jurisdictional and managerial problems created by the redistribution of fisheries and other marine species. In terms of state practice, a regional approach and cooperation through appropriate regional bodies such as RFMO/As and FAO is vital for effective adaptive management. Further, these regional bodies must enable adaptive management through inter-institutional cooperation, and engagement with research. In terms of research, the need is for greater multi- or cross-disciplinary research exploring the role of dynamic management of marine biodiversity while ensuring the law applicable to it is still robust enough to provide safeguards for marine species conservation facing climate impacts.
Open access