[4] As pressure on marine ecosystems is rising, and fishing is widely recognized as the main threat to biodiversity in areas beyond national jurisdiction,[5][6][7] expectations of the need for RFMOs to integrate a precautionary and ecosystem-based management approach have increased.
[4] Some scholars recognize that RFMOs have made vast improvements in adopting conservation measures reflecting the concern for the marine environment and biodiversity.
[8] Others point to the need of vesting a new global body with responsibilities traditionally delegated to RFMOs to enhance conservation of biodiversity in areas beyond national jurisdiction.
[16] The Food and Agriculture Organization of the United Nations (FAO) estimates that overfishing is particularly critical for fisheries resources fished in the high seas.
The latest addition to the global ocean governance regime is a new implementing agreement under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the 'BBNJ Treaty') for which negotiations were completed in March 2023.
[10] Although the BBNJ Treaty does not have a mandate to impose direct controls on fishing activities, scholars expect that the new agreement will affect the current governance regime for high seas fisheries management.
[22] This right to fishing is linked to the duty of states to cooperate to adopt measures for the conservation and management of the living resources of the high seas through the establishment of regional fisheries organizations.
[25] The foundation of Regional Fisheries Management Organizations (RFMOs), including their priorities and mandates, can thus be traced to the obligations of states laid down in UNCLOS.
[9] Although the UNFSA does elaborate on the fundamental principles of UNCLOS, it has been criticized for mainly providing guidance and obligations for sustainable management of fish stocks while remaining vague on how to address marine environmental protection in areas beyond national jurisdiction.
RFMOs have a unique mandate under international law to impose legally binding conservation and management measures (CMMs) within their geographical area of competence.
A broad consensus exists among UN member states and scholars that fishing is the main threat to marine biodiversity in areas beyond national jurisdiction.
[8] RFMOs publish a yearly overview of all conservation and management measures currently in force within their regional area (see examples of CMM publications in 'External links').
[14] Literature on the performance of RFMOs shows that they are improving over time, for example by implementing a precautionary and ecosystem-based approach with a holistic view on the impacts of fisheries[16] and reversing the decline in certain target species.
[42] However, despite the actions taken to improve performance, weak regulation of fishing activities and ineffective enforcement and compliance continue to be a main concern for the conservation of biodiversity and ecosystems in areas beyond national jurisdiction.
[42] These results highlight the potential in expanding such effective conservation and management measures to other threatened species to halt and reverse broad biodiversity loss in the high seas.
[4] In recent years, RFMOs have progressed by modernizing their constitutive agreements to provide clear mandates to adopt measures for the protection of the marine environment.
Examples include regulations on the use of specific types of fishing gear to minimize bycatch and area-based management tools such as no-fishing zones in areas of vulnerable marine ecosystems (VMEs).
[9] This has left a significant governance gap for non-target species not actively managed or assessed by RFMOs, approximately amounting to 95% of fish biodiversity in areas beyond national jurisdiction.
[9] This raises a particular problem in relation to the exclusion of fish from the new agreement on biodiversity beyond national jurisdiction as it constrains the ability of the BBNJ Treaty to address this governance gap.
[16] As decision-making processes in RFMO Commissions are generally based on consensus or majority voting, lack of political will of some member states tends to result in weak and inefficient conservation and management measures reflecting the lowest common denominator agreement.
[46] Scholars have also argued that the implementation of effective bycatch measures is significantly depending on the political will of RFMO members to prioritize long-term gains such as food security and poverty alleviation over short-term reductions in the economic profitability of target species.
[16] Recent collaboration efforts both between RFMOs and with other sectoral bodies have aimed to establish more holistic environmental protection regimes by coordinating action and avoiding conflicting management decisions.
[8] Scholars highlight such cooperation efforts as a potential avenue for improved conservation, especially with regard to establishing marine protected areas in the high seas.
[42] In addition, the focus of RFMO member states could be returned from political discussions to environmental protection by following advice from scientific bodies of RFMOs more closely and in a timely manner.
[8] In relation to the hybrid approach, scholars suggest that the BBNJ Treaty could vest RFMOs with decision-making powers and increase their capacity as the primary bodies for implementation of area-based management tools in areas beyond national jurisdiction.
[13][11] Scholars pursuing the potential of a regional approach argue that such a new global system undermines the existing mandates of RFMOs,[8] a concern which has also been raised by the Food and Agriculture Organization of the United Nations (FAO).
[33] By mid-2023, with the implementation of the BBNJ Treaty still lying ahead, the effect of the new legal instrument governing biodiversity in areas beyond national jurisdiction on high seas fisheries management remains a question for future research.