From a sociological perspective, Tom Tyler221 argues that there are two basic principles that explain why States adopt and implement international laws: the ‘instrumental’ approach and the ‘normative’ approach.222 The instrumental approach reflects the notion of the ‘tragedy of the commons’ and recognises that States are primarily driven by self-interest.223 Compliance is determined by States’ expectations that sanctions will flow from a violation of regulations and therefore their behaviour is dictated by external factors.224 Both nationals and States under this view are seen as ‘utility maximising individuals’ who compare the costs of non-compliance (both social and economic) to the potential gain to be made from such behaviour.225 Under this
approach, coercive measures, such as the use of force or removal of fishing privileges, represent the only reliable mechanism for ensuring compliance with fisheries regulations.226
The inherent weakness of the international fisheries regime has led certain States and individuals to conclude, on a cost/benefit analysis, that there is more to be gained from fishing outside
219
Committee on Fisheries, 'Strengthening Regional Fisheries Management Organisations and their Performance Including the Outcome of the 2007 Tuna RFMOs Meeting' (Paper presented at the Twenty Seventh Session of the Committee on Fisheries, Rome, Italy, 5 - 9 March 2007).
220 Charlotte De Fontaubert, Indrani Lutchman and International Union for Conservation of Nature, Achieving Sustainable
Fisheries: Implementing the New International Legal Regime (2003) 51.
221
Tom Tyler is Professor of Psychology, Department of Psychology, New York University, New York.
222
T. R. Tyler, Why People Obey the Law (2006) 165.
223 Olav Schram Stokke, Governing High Seas Fisheries: the Interplay of Global and Regional Regimes (2001) 122. 224 Jesper Raakjær Nielsen, 'An Analytical Framework for Studying: Compliance and Legitimacy in Fisheries Management'
(2003) 27(5) Marine Policy 425.
225
Ibid 427.
226
international regulations than within them.227 The lack of prescription within the LOSC on the nature and scope of flag State obligations has made clear and discernable sanctions almost impossible to identify. With the expectation of being apprehended and fined low, the self-interest of States continues to encourage non-compliance.228
This reality is drawn into sharp relief through consideration of the vast overcapacity of fishing vessels in operation both on the high seas and within EEZs. Excess capacity has proven an extremely powerful driver for IUU fishing with the economic benefits to be derived by non-
compliance great. 229 Fishers are today operating in an environment of increased competition for fewer resources230 and without the threat of severe and certain sanctions being imposed for non- compliant behaviour, the ‘instrumental’ approach has motivated many States and individuals to avoid compliance.
The second theory of compliance, the ‘normative’ perspective, argues that States (and nationals) will comply with laws that they consider to be fair, appropriate or legitimate.231 This theory places strong emphasis on the internal incentives of compliant behaviour.232 In this way, the personal morals and perceptions of the individual fisher or collective State will influence whether they comply with international law.233 Under this approach, the perceived ‘legitimacy’ of a law or regulation will be the main factor determining compliance by the State or individual.234 Arguably, the major bar to the perceived legitimacy of international fisheries law has been the controversial introduction of EEZs in the late 1970s.235 This introduction stemmed from the desire of coastal States to regulate proximate fisheries resources, and in many cases, to gain an economic advantage in doing so.236 In declaring EEZs, jurisdiction over 90% of the world’s commercial fisheries was transferred to coastal States.237 However for those States which were subsequently denied access to these resources, this development was seen as a blatant reversal of the freedom to fish.238
227
Baird, above n 156.
228
Carl-Christian Schmidt, 'Economic Drivers of Illegal, Unreported and Unregulated (IUU) Fishing' (Paper presented at the Conference on the Governance of High Seas Fisheries and the United Nations Fish Stocks Agreement, St. Johns, Canada, May 1-5 2005). 229 Ibid. 230 Baird, above n 156227, 301. 231 Stokke, above n 223,122. 232 Nielsen, above n 224, 425. 233 Ibid. 234 Stokke, above n 223, 122. 235
Philippe Cullet, Differential Treatment in International Environmental Law (2003) 82.
236
Ibid.
237 Quentin Hanich and Martin Tsamenyi, 'Exclusive Economic Zones, Distant Water Fishing Nations and Pacific Small Island
Developing States: Who Really Gets All the Fish?' (Paper presented at the Sharing the Fish Conference, Perth, Western Australia, March 2006).
238
Gordon R. Munro, 'Coastal States and Distant-Water Fishing Nation Relations: an Economist's Perspective' (1989) Marine Fisheries Review .
States such as Spain, which retains a reputation for questionable fishing practices,239 have voiced opposition to coastal State management of these waters resulting in tension between coastal States and DWFNs. As a result, the perceived ‘illegitimacy’ of the inclusion of EEZs in the LOSC has resulted in non-compliance by many DWFNs, with European Union companies among the top profiteers of IUU fishing.240 While the ‘normative’ perspective can be
demonstrated to have contributed to non-compliance by flag States, it is argued that the ‘instrumental’ approach, whereby State compliance is dictated by the severity and certainty of sanctions, is primarily responsible for the level of non-compliance with international regulations that is present to date. It is evident that without political will and commitment by flag States to provide the necessary monitoring and surveillance of vessels, there will be little compliance with the rules and obligations contained in international fisheries law.241