Joint Standing Committee on Treaties
CHAPTER 1
Introduction
1.1 The increasing complexity in global
interactions may have implications far wider than the capacity of any
single state to resolve. Over recent years there has been an increasing
move to manage these interactions through the treaty making process. This
process may involve bilateral negotiations between nations on issues specific
to those parties or the negotiation of multilateral treaties with either
a regional or global focus.
1.2 The United Nations Convention on
the Law of the Sea (UNCLOS) is the global agreement which provides
a framework governing all uses of the oceans. Australia's international
obligations for the management and conservation of marine natural resources
are covered by UNCLOS.
1.3 Arising out of UNCLOS is the Agreement
for the Implementation of the Provisions of the United Nations Convention
on the Law of the Sea of 10 December 1982 Relating to the Conservation
and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks
which encourages countries to join regional fisheries management organisations
where highly migratory fish species such as tunas are involved.
1.4 Two agreements relating to the management
of the tuna fisheries are the Subsidiary Agreement Between the Government
of Australia and the Government of Japan Concerning the Long-line Tuna
Fishing 1996 and the Agreement for the Establishment of the Indian
Ocean Tuna Commission. The Joint Standing Committee on Treaties conducted
inquiries into these agreements pursuant to its role to provide the detailed
scrutiny and examination of those treaties which are of particular interest
to Australians.
1.5 This report looks at the both agreements
as they raise a number of substantial issues. These include the sustainability
of the southern bluefin tuna (SBT) and other tuna stocks, the large take
of tuna species other than SBT which could be utilised by the domestic
long-line industry, the importance of port access to port communities,
bycatch of fish important to the recreational and game fishing industry
and the bycatch of seabirds.
Background
1.6 As the capacity of the Australian
fishing industry has exceeded the abundance of local fish resources in
some areas, the industry has become increasingly dependent on migratory
species which occur further off shore.1 Some
Australian vessels are now fishing to the outer edge of the Australian
Fishing Zone (AFZ) in northern waters 2 but
in southern waters, where weather conditions are less favourable, Australian
vessel operations are confined to areas adjacent to the coast. The Tuna
Boat Owners Association of Australia (ATBOA) believes that it will be
a long time there will continue to be substantial untapped resources in
the outer areas of the EEZ.3
1.7 The UNCLOS Convention assumes that
detailed regulations will be worked out through other international agreements
or fora. It was pointed out that:
| Where it [the coastal state] does not have that capacity to take
the whole allowable catch, it is intended that through agreements
or arrangements other states should be given access to that surplus.4
|
1.8 Japanese fishing vessels have for
some time, utilised the fish resources in Australian waters that have
not been exploited by the Australian fleet. In 1979 a bilateral Agreement
on Fisheries Between the Government of Australia and the Government of
Japan (Head Agreement)was signed to facilitate close
co-operation in the conservation and optimum utilisation of the living
resources of the sea with the view to achieving common fisheries objectives.
1.9 Article II of the Head Agreement requires
that:
| ... detailed procedures for the conduct of fishing operations by
fishing vessels of Japan within the Australian Fishing Zone and for
the issuance of licences by the Government of Australia shall be provided
for the subsidiary agreements between the two Governments.5
|
1.10 Under the subsidiary agreements,
Japanese long-line vessels catch about 7 000 tonnes of fish annually
within the Australia's Exclusive Economic Zone. The long-line fishing
method involves a number of short lines carrying hooks which are attached
to a longer main line at regular intervals. The short lines are suspended
horizontally at a predetermined depth with the help of surface floats
(Figure 1). The main lines can be 150 kilometres in length and have several
thousand hooks.
Figure 1. Diagram of a long-line tuna fishing vessel with lines set6
1.11 The Japanese vessels target a number
of tuna species including yellowfin and bigeye tuna which are also valuable
resources.7 Of particular economic importance,
however, are the southern bluefin tuna.
Southern Bluefin Tuna
1.12 The Australian tuna fishing industry
in southern waters is now largely long-lining and targets the SBT for
the fresh chilled sashimi market. Some purse seining is used to catch
fish for the aquaculture sector of the industry.8
There is some interaction between the Japanese and Australian fishing
fleets in relation to SBT and possibly other species. 9
1.13 The Southern Bluefin Tuna fishery
extends from South Africa through the Indian Ocean, south of Australia
off Tasmania and across to New Zealand.10
These fish spawn in waters south of Java then migrate down the west coast
of Australia and move either towards Tasmania in the east or South Africa
in the west.11 Southern bluefin tuna are slow
growing, reaching maturity at eight and live until 40 years old.12
This life history makes them very susceptible to overfishing.13
1.14 Both the economic viability of the
industry and the marine environment have been potentially adversely affected
by past fishing practices.14 The fishery has
shrunk in both area and time which has meant that a number of areas are
no longer being fished.15 Concerns over the
depletion in the SBT stock resulted in the establishment of the Convention
for the Conservation of Southern Bluefin Tuna.
Convention for the Conservation of Southern Bluefin Tuna 1993
1.15 Australia, New Zealand and Japan
are parties to this Convention which provides a legally binding international
regime for the conservation and sustainable management of SBT. The Convention
notes several issues which are relevant to the bilateral subsidiary agreements:
- the adoption of the United Nations Convention on the Law of the
Sea;
- the establishment of EEZs by parties to the agreement;
- that coastal states through which SBT migrate could exercise sovereign
rights within their respective EEZs;
- acknowledgment of collective scientific research and its bearing on
conservation of SBT; and
- it recognises the need for parties to the agreement to co-operate
to ensure the conservation and optimum utilisation of SBT.
1.16 The Convention ensures through appropriate
management, the conservation and optimum utilisation of SBT. The Convention
also addresses bycatch issues under Article 4 and 9, while Article 19
prevents countries expressing reservations.16
The Convention also establishes the Commission for the Conservation of
Southern Bluefin Tuna (CCSBT).
Commission for the Conservation of Southern Bluefin Tuna
1.17 The Commission meets annually to
determine the global total allowable catch and national quota allocations
for the SBT fishery. Quotas are determined by the unanimous vote of the
parties present and the measures decided are binding on all parties.17
1.18 The Commission is also responsible
for the collection of information; statistical data; details on laws and
regulations pertinent to SBT fisheries; matters of interpretation and
administration of the Convention. Article 9 of the Convention establishes
the Scientific Committee which plays a key role in the setting of the
annual global total allowable catch of SBT.
1.19 A subsidiary agreement is signed
annually providing Japanese fishing vessels with access to Australian
ports and fishing rights within the Australian Fishing Zone. This is linked
to the Commission in that it is Australia's policy that the subsidiary
agreements cannot be finalised until the SBT quotas are set (Figure 2).
(a) Setting of Total Allowable Catches
1.20 The scientific committee. meet prior
to annual meeting of the Commission. Scientists from Australia, Japan
and New Zealand prepare a collaborative stock assessment which provides
input on the stock status, the condition of the fishery and the capacity
to withstand catches.18 This scientific advice
provides a basis for the Commission's deliberations on total allowable
catches and the national allocations of quotas.19
1.21 All parties to the Convention agree
that SBT stocks are in a depleted state.20
The delays in setting recent quotas resulted from differences in opinion
as to whether SBT stocks are recovering. Scientific groups from Australia
and Japan have different views of the uncertainties in the parameters
used to prepare the stock assessment and different weighting and interpretations
of assumptions about the fishery.21
1.23 Australia and New Zealand have opposed
increasing the quotas at Commission meetings, preferring the precautionary
approach to managing stocks as required by the United Nations Agreement
on Straddling Fish Stocks and Highly Migratory Fish Stocks.22
Japan, however, has excess capacity in its fishing fleet which could be
utilised to catch additional SBT quotas.23
1.24 Whilst Australian scientists believe
that there is some doubt that SBT stocks are recovering, Japanese scientists
'paint a more optimistic picture'.24 The Department
of Environment, Sport and Territories (DEST) expressed the concern that:
| the most important impediment to the global management of southern
bluefin tuna stems from existing uncertainties in stock assessments
and differing objectives of management between Commission parties.
Prior to considering additional research into stock numbers which
involve additional harvesting i.e. the Japanese experimental fishing
proposal, the Portfolio considers that Australia should continue to
press for resolution of differences in stock assessments between Commission
parties.25 |
1.25 Difference in the methodologies used
to assess tuna stocks are currently being looked at by the Commission.26
1.26 CSIRO pointed out that:
| The Australian-New Zealand side believes that, until there is unequivocal
evidence for stock rebuilding, we should not think of increasing quotas.
The other side does not hold that position.27
|
1.27 A number of fishermen do not support
the view of the Australian scientists and believe that the stocks are
recovering. Differences in perceived stock abundance can also occur on
a local basis as this is a highly migratory stock. Some members of the
Tuna Boat Owners Association of Australia (ATBOA) believe that there has
been a considerable improvement in fish stocks compared to eight years
ago since these total catch allocations were determined by the Commission.28
It was pointed out to the Committee that this has been a very poor year
off Tasmania and in the Indian Ocean, even though there may have been
significant numbers of SBT off South Australia.29
1.28 ATBOA expressed the concern that
it will take at least another five years to complete the current comprehensive
scientific program.30 A cautious approach
is necessary as the consequence of getting the quotas wrong will be evident
for several decades.31
1.29 It was also suggested that there
should be a moratorium on further SBT catches or at the very least a substantial
reduction in quotas until the ecological issues can be resolved.32
Although the Committee can appreciate the ecological benefits of this
approach, it does not believe that this can be achieved in the light of
scientific evidence that current stock levels are able to be maintained
at the existing quotas.
(b) Additional quota for experimental
fishing
1.30 Australia, Japan and New Zealand
all agree that experimental fishing will only be permitted if it will
not jeopardise stock recovery.33 The Commission
has developed a set of guidelines for experimental fishing.34
1.31 Japan has suggested an additional
6 000 tonnes of quota be allocated for experimental catches to be
conducted in areas not currently being fished in order to obtain information
on the abundance or catch rates in those area.35
Australia agreed to additional meetings to discuss this further.36
1.32 The Department of Primary Industries
and Energy (DPIE) believes that additional quotas should only be considered
if experimental fishing is conducted under scientifically rigorous programs
which can provide answers to uncertainties in stock assessments.37
The Committee supports the Commonwealth Government's current view that
experimental fishing should be conducted within existing quota allocations
to minimise the risk of jeopardising stock recovery.
(c) Membership of other countries
1.33 Indonesia, Taiwan, Korea and in future,
China are becoming major fishers of SBT. Korean and Taiwanese fishing
vessels operate in the more southern latitudes of the Indian Ocean while
the Indonesian catch is in the northern regions as bycatch of their yellowfin
and bigeye tuna fishery.38
1.34 Last year the Commission determined
that the total allowable global catch of SBT was 11 750 tonnes. It
had been estimated that the catch by Korea, Indonesia and Taiwan was of
the order of an additional 2 000 tonnes.39
Recent figures indicate that Korea caught about 650 tonnes this year compared
to an estimated 100 tonnes taken in previous years, Taiwan 1 447
tonnes and Indonesia 840 tonnes.40 It was
suggested that there was probably about 3 200 tonnes in total this
year.41
1.35 China is also using small long-line
vessels out of Micronesia and Colombo.42 China
already has crews on Indonesian and Taiwanese boats and it was suggested
that their participation in the industry will increase significantly over
the next five years.43
1.36 The Tuna Boat Owners Association
of Australia raised a number of concerns in relation to the catches of
these countries:
- Australia's One China policy could make negotiations with Taiwan difficult;
- Indonesia's catch is in the only SBT spawning grounds as bycatch of
its yellowfin/bigeye fishing operations which will make it hard to prevent;
- China has now established substantial operations on yellowfin/bigeye
tuna in the Western Pacific and may move into the SBT industry; and
- Japan catches its quota in six months after which the Japanese boats
are required by their Government to leave the SBT areas. The Taiwanese
and Koreans then move into these areas.44
1.37 Korea, Taiwan and Indonesia attend
both the scientific committee and the Commission meetings as observers.45
The Commission is taking steps to encourage these countries to join.46
1.38 There is agreement among the existing
members of the Commission as to how quotas will be allocated to countries
which become parties to the Convention. It was suggested that the inclusion
of Korea and Indonesia in the Commission may result in an increase in
the global quota if they support Japan's views.47
It was argued, however, that even though there may be an increase in the
global total catch levels, there would be more benefit in having a well
regulated fishery than to continue to operate with some countries outside
the Convention.48
1.39 Since the introduction of national
quotas Australia, New Zealand and Japan have been required to reduce their
annual catch. Before Korea, Indonesia and Taiwan join the Convention,
an issue to be resolved is whether they retain their current catch levels
or are expected to reduce these levels, as have the three original parties
to the Convention.49
1.40 The Committee was told that Japan
is considering legislative action against countries which fish outside
the international agreements.50 However, it
was suggested that Japanese vessels are reflagging under flags of other
nations.51 When the Japanese quota was decreased,
the catches of other nations then increased through reflagging or by way
of Japanese/Korean company interactions.52
1.41 The issue of reflagging is not unique
to the SBT fishery and internationally there is some pressure to regulate
this activity. The Food and Agriculture Organisation's Code of Conduct
for Responsible Fishing and the United Nations Straddling Fish
Stocks and Highly Migratory Fish Stocks Agreement have powerful provisions
in relation to reflagging. When these enter into force and more countries
become parties, reflagging will be more difficult. However, this will
take time.53
1.42 Under the Convention for the Conservation
of Southern Bluefin Tuna other countries cannot have access to Australian
ports to facilitate their fishing activities. While this could be used
to encourage countries such as Korea and Indonesia to join the Convention,
the implications of this in terms of potential additional fishing pressures
adjacent to and within the AFZ will need to be addressed. The effectiveness
of this approach may depend on Australia's capacity to monitor fishing
activities in the EEZ. One foreign vessel was found fishing illegally
in the AFZ within the last 12 months and it is understood that others
were not apprehended.54
1.43 Another method of encouraging these
countries to join the Convention would be the introduction of a certificate
system which requires that all fish entering the market be identified
to prevent fish caught by non-parties being accepted in the market. When
the International Commission for the Conservation of Atlantic Tuna introduced
the certificate system, this resulted in a number of other countries joining
the Commission.55
1.44 The Committee believes that these
issues need to be resolved in order to manage the SBT stocks effectively
and for the successful continuation of the SBT Convention, the SBT Commission
and the annual subsidiary agreements. Japan, New Zealand and Australia
have voluntarily significantly reduced their catch levels while those
countries fishing outside the global SBT quotas have no such restrictions.
Although the Committee appreciates that the Japanese vessels utilise tuna
resources other than the SBT within the Australian EEZ, the value of SBT
catches is still substantial.
Indian Ocean Tuna Commission
1.45 The second Agreement to be considered
in this report is theAgreement for theEstablishment
of the Indian Ocean Tuna Commission (IOTC). The formation of this
Commission continues the trend to form international management regimes
for highly migratory tuna species in light of their vulnerability to fishing
on the high seas.56 The IOTC will act as a
regional fisheries management organisation for major international tuna
fisheries for yellowfin, skipjack, bigeye, albacore and southern bluefin
tunas. Membership is available to Indian Ocean rim countries and countries
that fish in the Indian Ocean.
1.46 Australia will request that the IOTC
recognise the competence of the Commission for the Conservation of the
Southern Bluefin Tuna but there will be continuing pressure for the IOTC
to play a role in the management of activities which will impact on SBT
and other tuna stocks. Further, countries which do not currently belong
to the CCSBT but have significant SBT catches may become members of the
IOTC.
Bilateral relations with Japan
1.47 The Government of Japan does not
regard the annual subsidiary agreements as treaties for the purpose of
its procedures and that, although Cabinet approval is required, Diet approval
is not.57 The subsidiary agreements, however,
are significant in terms of bilateral relations because they provide Australia
with an opportunity to maintain close communications with Japan on a range
of fisheries issues.58
1.48 The subsidiary agreements provide
the framework within which difficult issues in relation to fisheries could
be contained and managed without impacting adversely on the broader bilateral
relationship.59 The Tuna Boat Owners Association
of Australia, which has worked co-operatively with the Japanese on the
Joint Venture project, does not believe that disputes over tuna would
affect the wider trade relations.60
1.49 There are substantial mutual benefits
to Australia and Japan in the subsidiary agreements. The Committee is
aware that the Japanese can catch their quota of SBT on the high seas
and would only enter in an agreement if there was a perceived net benefit.
From Australia's point of view, the potential access to the AFZ may have
a favourable influence on the negotiations within the Commission in determining
the quotas.
1.50 ATBOA believes that Japan will continue
to participate in the subsidiary agreements as a strategy to retain access
to Australian waters to enable all possible future options to be available.61
It was pointed out that Japan no longer has access to many of the EEZ
tuna fisheries globally and therefore it has a strategic interest in maintaining
access to Australian waters.62
1.51 There is also considerable co-operation
between Australian and Japanese fishermen and they have taught the Australians
the art of long-lining.63 Co-operation has
extended to joint ventures, assistance in the establishment of the tuna
farm experiment, joint financing of external scientists, joint efforts
in addressing the seabird problem and reducing the catch of small tuna.64
1.52 Australian fishermen also derive
considerable benefit from the presence of Japanese vessels fishing in
Australian waters because of the data provided on location and catch.
65 Further, Australia does not have the capacity,
or the SBT quotas, to fish the entire stock in the AFZ. Southern bluefin
tuna is a global fishery and market and access is part of international
co-operation.66
1.53 There are a number of relevant agreements
and conventions to which Australia and Japan are both signatories which
have significant implications for the management of the tuna resources
within the AFZ and the migratory species which move through the AFZ. These
will be referred in this report where relevant to issues raised the two
agreements under consideration.
Footnotes
[1] UNESCO, Rowley, Transcript, 16 September 1996,
p. 219, 1983, p 4.
[2] Ibid, p. 219
[3] Tuna Boat Owners Association of Australia Inc, Submission
No. 44, p. S 328
[4] Serdy, Transcript, 29 August 1996, p. 71
[5] Agreement on Fisheries between the Government of
Australia and the Government of Japan 1979, Article II, section 2, p.
3
[6] Adapted from the diagram provided by the Department
of Primary Industries and Energy, Submission No.33,p.S 170
[7] Romaro, Transcript, 26 September 1996, p. 308
[8] Harwood, Transcript, 29 August 1996, p. 10
[9] Young, Transcript, 5 September 1996, p. 75
[10] Harwood, Transcript, 29 August 1996, p. 5
[11] Ibid, p. 6
[12] Department of Primary Industries and Energy, Submission
No. 33, p. S 174
[13] Ibid, p. S 174
[14] Morvell, Transcript, 29 August 1996, p. 56
[15] Harwood, Transcript, 29 August 1996, p. 19
[16] Evans, Supplementary Submission No. 38.1, p. S
437
[17] Attorney-General's Department, Submission No.
26, p. S 125
[18] Harwood, Transcript, 29 August 1996, p. 11
[19] Ibid, p. 11
[20] Harwood, Transcript, 29 August 1996, p. 389
[21] Ibid, p. 388
[22] Department of Primary Industries and Energy, Submission
No. 33, p. S 174
[23] Ibid, p.S 175
[24] Morvell, Transcript, 29 August 1996, p. 56
[25] Department of Environment, Sport and Territories,
Submission No. 36, p. S 215
[26] Ibid, p.56
[27] Young, Transcript, 5 September 1996, p. 85
[28] Puglisi, Transcript, 27 September 1996, p. 358
[29] Exel, Transcript, 10 October 1996, p. 388
[30] Tuna Boat Owners Association of Australia Inc,
Submission No. 44, p. S 325
[31] Kennedy, Transcript, 9 September 1996, p. 191
[32] Sutton, Transcript, 26 September 1996, p. 278
[33] Harwood, Transcript, 29 August 1996, p. 20
[34] Department of Primary Industries and Energy, Submission
No.33, p.S 195
[35] Harwood, Transcript, 29 August 1996, p. 19
[36] Department of Primary Industries and Energy, Submission
No. 33, p. S 175
[37] Harwood, Transcript, 29 August 1996, p. 20
[38] Ibid, p. 5
[39] Ibid, p. 5
[40] Caton, Transcript, 10 October 1996, p. 390
[41] Ibid, p. 391
[42] Ibid, p. 391
[43] Romaro, Transcript, 26 September 1996, p. 317
[44] Tuna Boat Owners Association of Australia Inc,
Submission No. 44, p. S 324
[45] Harwood, Transcript, 29 August 1996, p. 11
[46] Department of Primary Industries and Energy, Submission
No. 33, p. S 173
[47] Kennedy, Transcript, 9 September 1996, p. 191
[48] Harwood, Transcript, 29 August 1996, p. 405
[49] Harwood, Transcript, 29 August 1996, p. 68
[50] Tuna Boat Owners Association of Australia Inc,
Submission No. 44, p. S 336
[51] Millington, Transcript, 26 September 1996, p.
243
[52] Exel, Transcript, 10 October 1996, p. 397
[53] Harwood, Transcript, 29 August 1996, p. 399
[54] Millington, Transcript, 26 September 1996, p.
243
[55] Harwood, Transcript, 29 August 1996, p. 397
[56] Department of Primary Industries and Energy, Submission
No. 33, p. S 173
[57] Lamb, Transcript, 29 August 1996, p. 46
[58] Harwood, Transcript, 29 August 1996, p. 14
[59] Browning, Transcript, 29 August 1996, p. 50
[60] Tuna Boat Owners Association of Australia Inc,
Submission No. 44, p. S 335
[61] Jeffriess, Transcript, 27 September, p. 360
[62] Tuna Boat Owners Association of Australia Inc,
Submission No. 44, p. S 326
[63] Pratt, Transcript, 5 September 1996, p. 127
[64] Tuna Boat Owners Association of Australia Inc,
Submission No. 44, p. S 336
[65] Chaffey, Transcript, 5 September 1996, p. 158
[66] Tuna Boat Owners Association of Australia Inc,
Submission No. 44, p. S 331
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