The Precautionary Principle in Marine Environmental Law by Sage-Fuller Bénédicte;Sage-Fuller Bénédicte;

Author:Sage-Fuller, Bénédicte;Sage-Fuller, Bénédicte; [Sage-Fuller, Bénédicte]
Language: eng
Format: epub
Publisher: Taylor & Francis Group
Published: 2013-08-15T00:00:00+00:00

4.1.1.2.2 Applications of the Precautionary Principle by Fisheries Bodies

The question is therefore what role does the precautionary principle play, or is it meant to play, in the relationship between fisheries scientists and decision-makers against the background of inherent scientific uncertainty? Practically speaking, it is difficult to determine the elements of the dialogue between fishery scientists and management bodies, and even more so to extract the legal guidelines for the assessment of the decisions made in light of scientific information.54 The 1995 Agreement places responsibility on regional fisheries organisations to take conservation and management measures. This constitutes the background institutional framework within which the precautionary principle is applied. To entrust regional bodies with the conservation and management of the seas is regarded as effective. UNCLOS itself calls on States bordering enclosed and semi-enclosed seas to cooperate, directly or through an appropriate regional organisation, to coordinate the management of living resources thereof.55 Even before UNCLOS, the Regional Seas Programme of the United Nations Environmental Programme had initiated this move towards regionalisation.56 While the regional management of fisheries is not a new phenomenon, the 1995 Agreement has made compulsory its application by regional fishery bodies. This emphasis on the importance of regional bodies (Regional Fisheries Management Organisations or Arrangements – RFMOs) appears in Part III of the 1995 Agreement, and is the way chosen to ensure cooperation between coastal States and fishing States. In particular, both types of States are required to pursue cooperation to ensure effective conservation and management of fish stocks, either directly or through a regional organisation.57 Moreover, where a regional organisation already exists, States fishing in the area of competence of the organisation must become members, and only those who are members shall have access to the fishing resources concerned.58 Where no such regional body exists, States shall create one.59 In effect, this provision means that the 1995 Agreement requires that every area of the high seas which is used for fishing must be regulated by a regional body for the conservation and management of straddling fish stocks and highly migratory fish stocks. The 1995 Agreement outlines in some details the functions of regional fisheries bodies, or RFMOs as referred to in the text of the Agreement.60 This emphasis by the 1995 Agreement on the role of regional fisheries bodies to take conservation and management measures means that it is at this level that the precautionary principle, as defined in the Agreement, should be applied. It is argued that this creates favourable conditions for the refinement of the meaning of the precautionary principle at regional level.

54 There is a plethora of specialised articles on the subject of the adequate role of science in the management of fisheries. A few examples include: Grafton, R. Quentin and Kompas, T., ‘Uncertainty and the Active Adaptive Management of Marine Reserves’ (2005) 29 Marine Policy 471; Jentoft, S., ‘Beyond Fisheries Management: the Phronetic Dimension’ (2006) 30 Marine Policy 671; Grafton, R. Quentin, Kompas, T., McLoughlin, R. and Rayns, N., ‘Benchmarking for Fisheries Governance’ (2007) 31 Marine Policy 470; Schrank, W.

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