Save the Tuna: How Renegotiating Fishing Rights on the High Seas Could Benefit the Maldives

By: Megan Hall

Fishing on the high seas is one of the most important rights nations have under international law, but the lack of regulation has allowed humans to decimate fish populations. In 2015, the United Nations resolved to adopt a new treaty to regulate high seas fishing. The Republic of Maldives is a key stakeholder that will be affected by these new regulations.

High seas fishing is one of the most hotly contested rights on the ocean today.[1] Although the general treaty that manages the ocean (the United Nations Convention on the Law of the Sea, known as UNCLOS)[2] splits the ocean into different areas with different enforcement levels for each area, the high seas is an area of almost lawlessness. The high seas is an area of the ocean that is not under the direct control of a nation; instead, the vessels that sail on the high seas are subject to the jurisdiction of the country whose flag they sail under, subject to, of course, being found and detained.[3] Thus, fish in the high seas are particularly vulnerable to overfishing, which will decimate key populations.[4]

Overfishing is a huge problem facing the oceans today.[5] Overfishing is simply when humans take more fish from a population than can be restored.[6] One solution to overfishing is to set a maximum number of fish species that can be taken.[7] However, this solution faces the same challenge of enforcement as any international regulation.[8] A second solution is fish farms, where fish populations can be raised by humans and thus do not need to be removed from the ecosystem.[9] However, fish farms present numerous issues of their own, including the fact that some fish species cannot be successfully raised in fish farms.[10] Overfishing affects both the marine ecosystem and the nations that depend on that species for food and revenue.

Under UNCLOS, all nations have the right to fish on the high seas.[11] This right is subject to the nation’s obligations under treaties, the interests of coastal states, and the duty under UNCLOS to conserve the living species of the ocean.[12] Under UNCLOS, states are to determine the number they are allowed to catch and other conservation measures.[13] Importantly, in 2015, the United Nations has agreed to reopen negotiations on fishing on the high seas with a final report due in December 2017.[14]

Reopening negotiations on fishing will impact every nation that sails the seas. The Republic of Maldives, a small island nation in southeast Asia, will be affected as well. Fishing is integral to the Maldivian economy, providing both food and economic tourism. Fishing accounts for about 6% of its Gross Domestic Product (GDP) and around 98% of its physical exports.[15] Fishing attracts tourists as well, an industry that accounts for about 33% of its GDP.[16] This intersection of interests means that the Maldives is an important stakeholder in any development in the regulation of fishing. It is interested in both preserving marine biology and maximizing the economic exploitation of fishing through both fishing and tourism.

Currently, it faces difficulty in the regulation of fishing.[17] Under UNCLOS, the Maldives can regulate fishing within its Exclusive Economic Zone, an area of its exclusive jurisdiction that extends beyond its Coastal Zone.[18] In its Exclusive Economic Zone, it has to enforce its own laws, even when the vessels do not fly under their flag.[19] This has led to issues with suspected poaching[20] and actual poaching.[21] To combat this, the Maldives have begun using technology and regulation to combat overfishing and poaching.

The Maldives have implemented a GPS tracking system to monitor where vessels go and to help monitor how much they are catching, thus working to eliminate overfishing of a species and a single vessel going beyond its permit level.[22] Technology is helping, but not enough. Once the fish populations leave the Exclusive Economic Zone or the Coastal Zone of the Maldives, the vessels that fish them are only subject to the laws and regulations of their flag nation.[23] Thus, the Maldives is subject to the actions of nations and individuals beyond its control, as fishermen on the high seas could decimate the population of tuna that the Maldives depends on with no avenue of recourse for the Maldives.

Currently, the Maldives have created Marine Protected Areas, which are specific areas of the ocean within its Exclusive Economic Zone set aside with additional regulations often focused on protecting and preserving the marine ecosystem, especially the coral reefs.[24] The coral reefs face multiple pressures including sedimentation, pollution, and rising sea temperatures.[25] The Maldives has thirty-two protected areas, with the latest designated in 2009.[26] Reopening negotiations about high seas fishing will add an additional possible layer of protection beyond Marine Protected Areas. Instead of having a patchwork system with small areas of protection, the oceans can be managed through a worldwide, collective arrangement.

Furthermore, the Maldivian fishing economy depends mainly upon deep-sea tuna fishing.[27] These fish are only available in the Maldives’s Exclusive Economic Zone two to six months per year.[28] Otherwise, they migrate outside the reach of the Maldives, opening up to exploitation on the high seas. The renegotiations of fishing on the high seas would help the Maldives manage this vital resource even when it swims beyond its control. Instead of the small island nation being dependent on the fishing decisions by other states, it could, possibly, earn new negotiating power to protect its interests even beyond the arbitrary geographic limit placed on it originally through UNCLOS.

This renegotiation will also, most importantly, help the threatened populations of marine animals who live in the high seas. They are currently subject to loose or no control. This includes the Sargasso Sea, a large, floating island of seaweed in the Atlantic Ocean that is the home of many endangered animals.[29] It is also the breeding ground or an important food source for populations such as the Atlantic Swordfish, an extremely popular fish to catch.[30] Thus, reopening negotiations will directly impact the marine populations, the island nations dependent on fishing for their economy, and all nations who catch an animal that traverses, breeds in, or feeds on the high seas. It could even possibly work to end the controversy of current whale catching enterprises.[31] It could protect threatened ocean fish populations that migrate and thus move beyond the ability of a state to protect them, such as bluefin tuna.[32] If nothing else, it will open a dialogue for states to discuss the balance once again between conservation and exploitation of the oceans.

[1] James Greiff, Overfishing, Bloomberg.com (Aug. 11, 2017), https://www.bloomberg.com/quicktake/overfishing

[2] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter “UNCLOS”].  

[3] Id. at art. 93.

[4] Greiff, supra note 1. For example, overfishing pushed the bluefin tuna almost to extinction. Recently, the Western and Central Pacific Fisheries Commission and the Inter-American Tropical Tuna Commission agreed to try to rebuild the bluefin tuna population. Clare Leschin-Hoar, Countries Pledge to Recover Dwindling Pacific Bluefin Tuna Population, NPR.org (Sept. 1, 2017), http://www.npr.org/sections/thesalt/2017/09/01/547903557/countries-pledge-to-recover-dwindling-pacific-bluefin-tuna-population. The Maldives is not a member of either group.

[5] National Geographic, Overfishing, Nationalgeographic.com (Apr. 27, 2017), http://www.nationalgeographic.com/environment/oceans/critical-issues-overfishing.html.

[6] Id.

[7] This is exactly the kind of regulation that is contemplated for the bluefin tuna population. See Leschin-Hoar, supra note 4.  

[8] Id.  

[9] See Amelia Urry, Everything You Always Wanted to Know About Fish Farming but Were Afraid to Ask, grist.org (July 31, 2015), http://grist.org/food/everything-you-always-wanted-to-know-about-fish-farming-but-were-afraid-to-ask/.  

[10] For example, bluefin tuna cannot be raised from eggs – if they are farmed, they must be caught in the wild and then transferred to, essentially, a feeding pen. David Biello, Tuna from a Farm? A Q&A with Richard Ellis, ScientificAmerican.com (June 24, 2008), https://www.scientificamerican.com/article/tuna-from-a-farm/.  

[11] UNCLOS, supra note 2, at art. 116.

[12] Id. at art. 118.

[13] Id. at art. 119(1)

[14] G.A. Res. 69/292, at 2 (June 19, 2015).  

[15] Food & Agric. Org. of the United Nations, National Fishery Sector Overview: Maldives 2, 5 (2009).

[16] Ministry of Home Affairs, House & Env’t, Republic of Maldives, First National Communication of the Republic of Maldives to the United Nations Framework Convention on Climate Change 30 (2001).

[17] Ann Powers, Sea-Level Rise and Its Impact on Vulnerable States: Four Examples, 73 La. L. Rev. 151, 158-160 (2012).  

[18] UNCLOS, supra note 2, at art. 55.

[19] Id. at art. 56.

[20] For example, the U.S. prohibits fishing of Atlantic Striped Bass. Coast Guard News, Coast Guard to Intensify Efforts to Stop Offshore Poaching of Atlantic Striped Bass, coastguardnews.com (Nov. 29, 2013), http://coastguardnews.com/coast-guard-to-intensify-efforts-to-stop-offshore-poaching-of-atlantic-striped-bass-2/2013/11/29/.

[21] For example, Japan is exploring whether Chinese fishermen are illegally poaching coral in Japan’s Exclusive Economic Zone, but also caught one Chinese ship with coral. The Star, Japan Launches Study Into Suspected Chinese Coral Poaching, thestar.com (Aug. 16, 2017), http://www.thestar.com.my/news/environment/2017/08/16/japan-launches-study-into-suspected-chinese-coral-poaching/.

[22] Powers, supra note 17, at 160.  

[23] UNCLOS, supra note 2, at art. 93. One issue that has arisen out of this regulatory scheme is the concept of “flags of convenience” where vessels choose to sail under the flag of a nation with laxer regulations. For a critique of this issue, see Jessica K. Ferrell, Controlling Flags of Convenience: One Measure to Stop Overfishing of Collapsing Fish Stocks, 35 Envtl. L. 323 (2005).  

[24] Ameer Abdulla, Resort House Reefs: Maldives promote privately Managed Marine areas, https://www.iucn.org/content/resort-house-reefs-maldives-promote-privately-managed-marine-areas

[25] Id.

[26] 32 Protected Marine Areas in the Maldives, http://www.mondomaldive.com/Protect_Areas/Protect_Areas.html (last visited Sept. 4, 2017).

[27] R. Sathiendrakumar & C. Tisdell, Fishing Resources and Policies in the Maldives, Marine Policy 282 (Oct. 1986).  

[28] Id.

[29] Elizabeth Wilson, Underwater Treasures of the High Seas, pewtrusts.org (Mar. 25, 2016), http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2016/03/underwater-treasures-of-the-high-seas.

[30] Id.

[31] The Sea Shepherd is a relatively famous vessel run by environmentalists who face off with Japanese boats who catch whales. The Sea Shepherd has called for a reduction in yearly quotas on whales. See Paul Watson, The Whale Wars Continue, seashepherd.org (Aug. 28, 2017), http://www.seashepherd.org/news-and-commentary/commentary/the-whale-wars-continue.html.

[32] See Leschin-Hoar, supra note 4.