By Merel Terwisscha van Scheltinga

The Necessity of Strenghtening the Legal Framework Regime to Protect Mesopelagic Species Conservation from Fishing Operations

By Merel Terwisscha van Scheltinga*

ABSTRACT

The extensive connection of the ocean food webs causes an interdependence of the pelagic zones for the conservation of their flora and fauna. The entire ocean ecosystem will be put out of its balance if the mesopelagic zone is inadequately protected in legal framework regime . To call attention to this issue, this paper will contemplate the necessity of sufficiently protecting the conservation of the ocean twilight zone fish on a legislative level. This paper will, therefore, underline a legislative gap and the challenges of filling this gap.

Keywords: mesopelagic, food webs, international law, fishing, ocean twilight zone, fish conservation

* LL.B. Graduate International and European Law Program, The Hague University of Applied Sciences. 2022 issue 1 ILSA Law Journal 7

INTRODUCTION

The protection of the mesopelagic zone’s species is a relatively undiscussed subject in the international legal framework regime focused on ocean governance.1 The sea is divided into pelagic zones whereby the mesopelagic zone of the ocean lies from 200 to 1,000 metres below the sea surface. The mesopelagic zone is also known as the ocean twilight zone because only 0-1% of sunlight penetrates this pelagic level. Additionally, the epipelagic zone, otherwise known as the ocean sunlight zone or photic zone, is situated at sea level to 200 metres below the ocean surface. Due to a lack of adequate equipment and technology for fishing in the mesopelagic zone, this area was left relatively untouched by the commercial fishing industry until the 1990s.2 As a result, lawmakers have principally focused on conservation of species in the commercially-fished epipelagic area. Although the exploitation of the mesopelagic zone can be perceived as a recent and relatively undeveloped concern, this issue should not be underestimated given the great potential and rapidly increasing feasibility of commercial fishing in this area. Strengthening the international legal framework on fisheries by adequately extending its text to protect mesopelagic species is necessary to prevent detrimental harm to the entire marine ecosystem.

Naturally, the oceanic food webs do not limit themselves to national borders, and, consequently, the problems caused for the ocean due to potential overexploitation of the mesopelagic species will not merely be limited to national borders. As a result, international law is the relevant legislative sphere to use for protecting the mesopelagic zone.

This paper aims to explain how the international legal framework regime on fisheries must be strengthened to protect the mesopelagic fauna. Furthermore, this paper ultimately argues for the necessity of adequately protecting the mesopelagic zone on a legal basis. This paper is broken into four research sub questions. The first Chapter introduces the topic of fishing by explaining concepts related to the favourable conservation of marine species and their habitats; overfishing, bycatch, environmental impact assessments, and ways to prevent species exploitation. Building on this necessity of protecting marine species and their habitats, the second chapter provides a more detailed explanation as to why the mesopelagic zone and its

1 Paul E Caiger and others, ‘Growth and reproduction in mesopelagic fishes: a literature synthesis’ (2021) 78 ICES Journal of Marine Science 3 765–781. 2 FAO, ‘Review of the State World Fishery Resources: Marine Fisheries FAO Fisheries Circular No. 920, FIRM/C.920’ (1999); FAO, ‘Report of the Trilateral Workshop on Lanternfish in the Gulf of Oman, FAO Fisheries Report No. 665, FIIT/R665.’ (2001).

species in particular have to be protected. The third chapter will analyse whether the international legal framework regime must be strengthened to protect the conservation of mesopelagic fish. Lastly, the fourth chapter addresses the recommended course of action for strengthening the international legal framework regime focused on protecting the mesopelagic zone from fishing operations.

CHAPTER 1: The importance of Protecting the Conservation of Fish from Fishing Operations

1.1. Introductory Remarks

This chapter introduces the importance of fish conservation by addressing the following research sub-question: What is the importance and legal relevance of protecting the conservation of fish from fishing operations for the mesopelagic fauna? It is necessary to acknowledge the rationale behind protecting the ocean from fishing to understand the necessity of protecting the mesopelagic fish. This chapter will address the overexploitation of marine fauna through overfishing and bycatch. Furthermore, the concept of a favourable conservation will be explained. Lastly, it addresses whether a fish species can be protected through a marine protected area and/or environmental impact assessment.

1.2. Exploited Marine Biodiversity

According to Article 2 of the United Nations Convention on Biodiversity, biodiversity consists of genetic diversity, species diversity, and ecosystem diversity.3 First, genetic diversity refers to the variation of genetic information within a species’ population which allows for a thriving ecosystem. 4 Second, species diversity refers to the allowance of a variation in the number and frequency of a species’ population.5 Taken together, genetic and species diversity allow for a resilient marine ecosystem which is able to respond to environmental changes such

3 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) art 2; Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 340-342. 4 ibid. 5 ibid.

as climate change and global warming.6 For example, if the favourable status of marine biodiversity decreases, this would have a severe environmental impact on the world’s oxygen levels. Marine plants, particularly marine algae, provide 50-75% of oxygen in the atmosphere.7

Thirdly, ecosystem diversity only arises if there is variation in the habitats and communities within a marine environment. These three types of diversity are interconnected, and if one is harmed, the degradation of the marine environment will follow.8

A report published in 2012 by the Food and Agriculture Organisation states that 87% of marine fisheries’ capacity is fully exploited, and 29.9% of this estimate represents marine fisheries which are overexploited ‘beyond optimal yield level and including recovering and depleted stocks’.9 Additional data regarding European and North American fisheries state that one-third of the world’s fish stock is overfished.10 Although this data does not focus on the other continents’ fisheries, due to the universal global fishing demand, similar trends of overfishing are expected.11 Evidently, further research focused on the global scale of fisheries estimates that two-thirds of all global commercial fisheries are overfished.12 Moreover, in an overfished ecosystem, the overall abundance of fish stock left may be a mere 10% of the fish diversity present before the fishing operations started.13 It is correct to assume that if the mesopelagic zone is not adequately protected through regulation, this area will become overexploited.

6 ibid. 7 Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 346. 8 International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 342-346. 9 FAO Fisheries and Aquaculture Department, ‘The State of World Fisheries and Aquaculture No. 43’ (Food and Agriculture Organisation, 2012) 11; Gabriela Steier & Kiran K. Patel, International Farm Animal, Wildlife and Food Safety Law (Springer 2017) 1, 406. 10 Gabriela Steier & Kiran Patel, International Farm Animal, Wildlife and Food Safety Law (Springer 2017) 407; Ray Hilborn & Ulrike Hilborn, Overfishing: What Everyone Needs to Know (OUP 2012) 1, 123. 11 ibid. 12 Christopher Costello and others, ‘Status and Solutions for the World’s Unassessed Fisheries’ (2012) 338(6106) Science 1, 1-4; Gabriela Steier & Kiran K. Patel, International Farm Animal, Wildlife and Food Safety Law (Springer 2017) 1, 407. 13 Ray Hilborn & Ulrike Hilborn, Overfishing: What Everyone Needs to Know (OUP 2012) 110.

1.3. Overfishing

Overfishing does not merely harm one specific species or pelagic zone but the entire marine environment. For example, fisheries majorly target predator fish such as tuna, and mesopelagic fish are an essential part of the diet of marine predators.14 Overexploiting the mesopelagic fish decreases biodiversity in the currently commercially-fished species, which will harm the fishing industry.15 Species-specific legal frameworks do not effectively consider the ecosystem on which this target species depends, as the marine environment’s food webs are closely interlinked.16 This is evident in the International Convention for the Conservation of Atlantic Tuna which does not include the protection of the tuna’s diet. 17 The rules on the protection of the target species’ diet in species-specific conventions may not continue to be excluded. Such a legislative gap will harm the biodiversity of both the commercially fished target species and their diet of mesopelagic species. To prevent overfishing, catch limit rules are implemented through regional or national rules, but these are difficult to enforce and oversee.18 Catch limits apply to the quantity, size, and type of fish to promote sustainable fishing in a specific region. Protecting a species from overfishing while also protecting the ecosystem’s food webs and biodiversity demands designating marine protected areas (MPAs) and marine reserves. These protected areas focus on protecting an entire habitat instead of just a targeted species, which maintains the balance of the marine food web.

1.4. Bycatch

Operations which use big nets and trawling fishing equipment to catch many species at once have a high probability of resulting in indiscriminate fishing operations.19 The variety of species which are not the target of the fishing operation but are caught due to these enormous nets and trawlers are known as bycatch. The fisheries majorly throw the now dead or dying by-

14 Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 363. 15 ibid. 16 ibid. 17 ibid. 18 Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 364. 19 ibid.

caught fish back into the ocean.

20 Research shows that approximately 25% of the caught fish in fishing operations are identified as bycatch, which translates to an estimate of 30 million tons of wasted species biodiversity.21 Due to the common use of deep sea trawlers in fishing operations, the mesopelagic zone’s biodiversity is caught up in fishing practices as bycatch. For example, in fishing operations in the Indian Sea between 2009 to 2010, due to the use of deep-sea trawlers, 32% out of the 11,488 tons of bycatch consists of the dominant mesopelagic species, the lanternfish.22

Through rules on fishing equipment standards, for example indicating appropriate mesh size, mesopelagic bycatch in fishing operations may be avoided. In 2010, new fishing equipment to fish swordfish, a mesopelagic species, was introduced in the Ligurian Sea, an arm of the Mediterranean Sea.23 The traditional surface long line was substituted for the mesopelagic swordfish long line to maximise profit by greatly reducing bycatch and increasing the number of caught target species.24 Although this equipment is of great long-term financial advantage, with the absence of a legal mandate pushing for its implementation, the fast majority of the fishing industry has been unenthusiastic to change its current ways. Moreover, data from 1990-2009 shows that 50% of the Ligurian Sea’s mesopelagic swordfish catches were bycatch of the pelagic stingray. After the implementation of the new fishing gear, the data from 20102013 shows that this pelagic stingray bycatch accounted for only 2.3% of the catches.25 This evidently shows that mesopelagic sustainable fishing equipment is not only beneficial for the protection of mesopelagic fish but also financially significant for the commercial fishing industry.

20 ibid. 21 Caroline Ash, ‘A Desktop View of Overfishing’ (2004) 305 Science 1242; Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 354. 22 Boopendranath and others., ‘Final Report on CIFT Project Component on Development of Harvest and Postharvest Technologies for Utilisation of Myctophid Resources in the Arabian Sea pertaining to MoES/CMLRE Project on Assessment of Myctophid Resources in the Arabian Sea and Development of Harvest and Postharvest Technologies’ (Central Institute of Fisheries Technology, 2012) 246. 23 Fulvio Garibaldi, ‘Bycatch in the Mesopelagic Swordfish Longline Fishery in the Ligurian Sea (Western Mediterranean)’ (2015) 71(3) ICCAT 1495, 1495-1498. 24 ibid. 25 ibid.

1.5. Marine Protected Areas and Marine Reserves

Marine protected areas (MPAs), or marine reserves, are designated to improve fishery management and to protect both a species’ and habitat’s conservation.26 Such an area is dependent on the monitoring, control, and surveillance operations that are implemented upon its designation.27

Marine reserves are a type of MPA. An MPA limits extractive operations by law whereas a marine reserve prohibits such activities.28 The International Union for the Conservation of Nature (IUCN) defines an MPA as a ‘clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values’.29 Although the international and regional legislation defining MPAs is not uniform, all forms of legislation focus on the protection and conservation of biodiversity.30 The designation of an MPA improves species density, biodiversity of the number of species, biomass size, species body size, and the reproductive potential of species to prosper.31 For example, after the Apo Island in the Philippines was designated as an MPA, their fish population increased and fishermen saw a 50% increase in catch in the neighbouring areas. 32 As fish know no borders, the increased biodiversity of the MPA overflowed to the non-protected areas, causing an increase of fish population in the surrounding area and increased profits for the fishermen. Although the same exact results cannot be expected, internationally recognised MPA principles will encourage protection and conservation of biodiversity as was the case for the Apo Island.

Marine reserves, unlike MPAs, may entirely prohibit extractive operations such as fishing instead of limiting them to allow marine biodiversity to grow. For example, the Tonga Island Marine Reserve in Oceania increased their number of crayfish by more than seven times and the blue cod species increased by forty times.33 Marine reserves focus on focal species and

26 Sara Monteiro and others, ‘Improving Fishery Law Enforcement in Marine Protected Areas’ (2009) 1 Aegean Rev Law Sea 95, 97. 27 ibid. 28 Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 365. 29 Michelle Bender, ‘An Earth Law Framework For Marine Protected Areas’ (Earth Law Center, 2017) 6. 30 ibid. 31 Alan White & Alison Green, ‘Introduction in Special Issue on Establishing a Region-wide System of Marine Protected Areas in the Coral Triangle’ (2014) 42(2) Coastal Management 81–86. 32 Michelle Bender, ‘An Earth Law Framework For Marine Protected Areas’ (Earth Law Center, 2017) 6. 33 ibid.

protect their movement patterns from threats. It has been proven that a marine reserve must be twice as large as the focal species’ home range to be effective. If, however, effective management is in place, then this size may be smaller.34 Furthermore, as marine reserves still allow for non-extractive uses of the area, such as diving, the local community may benefit from the ecotourism possibilities of a marine reserve.

Even if an MPA has been designated, it may not be implemented in practice due to the lack of a consistent legal and policy framework. For instance, one study has found that approximately one quarter of the 433 evaluated MPAs provided insufficient protective benefits for the designation of a protected area.35 Consequently, a consistent international legal framework addressing the designation process of an MPA is needed to protect the mesopelagic zone’s biodiversity.

1.6. Environmental Impact Assessment

An environmental impact assessment (EIA) evaluates the potential and foreseeable impacts of an activity, such as fishing, on the marine environment. The assessment provides a clear overview of the environmental effects, risks, and consequences of the proposed activity.36 An EIA is conducted to ensure that the rules and measures on environmental protection are followed while participating in an activity such as commercial fishing in a mesopelagic area.37

These assessments aim to ensure stakeholder involvement and allow for decision makers to make informed decisions on the new activity.38 An EIA whose scope is extended to the mesopelagic zone allows for further research on mesopelagic areas and an examination of the sustainability of a specific mesopelagic fishery activity. Requiring an EIA will provide more information on the impact of mesopelagic fishing operations and the sustainability of fishing in these areas.

34 Alison Green and others, ‘Larval dispersal and movement patterns of coral reef fishes, and implications for marine reserve network design’ (2014) 90(4) Biological Reviews 1215, 1215-1217. 35 Michelle Bender, ‘An Earth Law Framework For Marine Protected Areas’ (Earth Law Center, 2017) 6. 36 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas Project 2021) 19. 37 ibid. 38 ibid.

1.7. Concluding Remarks

To conclude, the exploitation of the mesopelagic fauna will have detrimental consequences for our marine environment. As the oceanic ecosystem is greatly interlinked, the conservation of any pelagic zone and its species is important, including the mesopelagic area. Protecting the marine environment and its species demands a consistent international legal framework with rules on sustainable fishing equipment, the designation and management of MPAs, and guidelines on an EIA.

CHAPTER 2: The importance of Protecting Mesopelagic Species Conservation

2.1. Introductory Remarks

This chapter examines the potential global biomass of the mesopelagic zone and the potential of overexploitation of the mesopelagic species through fishing operations by addressing the following research sub-question: Is the protection of the mesopelagic zone species imperative for the survival of the ocean? Responding to this question is necessary for understanding the effects of the overexploitation of this zone on the ocean’s food webs and carbon cycle. Furthermore, this chapter introduces the gradual growth of the scale of mesopelagic commercial fisheries.

2.2. The Feasibility of Fishing the Mesopelagic Zone

The mesopelagic zone’s fauna consists of gelatinous species such as ctenophores, siphonophores, and hydromedusae. Furthermore, this area consists of fishes, shrimps, squids, and zooplankton. Mesopelagic fisheries do not only focus on direct human consumption of these species, as they are also in demand by the fish oil, pharmaceuticals, nutraceutical, and cosmetic industries. Furthermore, mesopelagic fauna can be used as food for the aquaculture

industry and animal feed industries.39 Lastly, recent research has highlighted their potential as a source of anticancer and antimicrobial compounds.40

The first pieces of research on the potential significance of lanternfish to the fishing industry were published in the 1960s. Records of commercial fishing operationsdate back quite early, to 1977, but the scale of the practices is still growing at a slow pace.41 Lanternfish account for the majority of the commercial mesopelagic fishing operations, representing 65% of the mesopelagic biomass.42 Between 1970 and 2015, the average annual catch for lanternfish was 10,640 tons.43 Currently, commercial mesopelagic fisheries are mainly situated in Oman and South Africa, and the Gulf of Oman has an estimated mesopelagic biomass of 5-20 million tonnes.44 In the North Atlantic Ocean, approximately 13,000 tonnes of lanternfish were caught in 2001-2002, while 73,000 tonnes of silvery light fish were caught in 2009-2011.45 In the South Atlantic Ocean, 8,000 tons of mesopelagic fish were caught in 2011, and 5.830 tons were fished in 2018.46 Lastly, the European Union created a 13 million euro budget in 2019 for two projects on mesopelagic fisheries.47 In other words, the mesopelagic zone has been of national and regional interest for decades.

There was a peak of a 74,751 tonne annual catch of lanternfish in 1990, but the majority of the 1990s operations have been abandoned due to low commercial profits and poor catches.48 Although never fully proven, the poor catches were most likely due to the spatial migration patterns of these species, which limit the availability of the mesopelagic species in the studied

39 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 17.; Paras Nath Jha and others., ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep. 1, 1-3. 40 Chiara Lauritano and others, ‘First evidence of anticancer and antimicrobial activity in Mediterranean mesopelagic species’ (2020) 10(4929) Scientific Reports 1, 1-2. 41 FAO, ‘Review of the State World Fishery Resources: Marine Fisheries FAO Fisheries Circular No. 920, FIRM/C.920’ (1997). 42 Raúl Prellezo, ‘Exploring the economic viability of a mesopelagic fishery in the Bay of Biscay’ (2018) 76(3) ICES Journal of Marine Science 771, 771-773. 43 FAO, ‘Report of the Trilateral Workshop on Lanternfish in the Gulf of Oman, FAO Fisheries Report No. 665, FIIT/R665.’ (2001); Paras Nath Jha and others, ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep. 1, 1-3. 44 Paras Nath Jha and others, ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep 1. 45 ibid. 46 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 9. 47 ibid. 48 Karl-Hermann Kock, ‘Understanding CCAMLR’s Approach to Management’ (CCAMLR, 2000) 15-44.

fishing area.49 Additional difficulties which hinder fisheries from extending their expertise to mesopelagic fish are the species' small size, presence of wax/esters in the tissue, uncertainty in shoal identification, and deep-sea fishing.50 Furthermore, lanternfish emit light senses and respond to the movement of the fishing equipment due to the frequency vibrations and pressure waters which makes it difficult to catch this species. 51 Difficulties that hinder fishing operations can be overcome with a proportional trawl design and an appropriate mesh size of the netting to allow for profitable fishing.52 Further research is necessary to understand the exact necessary proportions of the fishing equipment that facilitate profitable mesopelagic fishing. The legal framework governing the mesopelagic fishing equipment rules must account for the potential of mesopelagic commercial fishing instead of the current operations, as these can be significantly expanded if improved fishing technology and equipment are adequately utilised.

2.3. Mesopelagic Zone Biomas

The global biomass of mesopelagic species is expressed through estimates which quantify the potential of commercial fishing in the mesopelagic zone. Recent research on the mesopelagic area of the latitudes 70° N and 70° S has estimated that the global mesopelagic species biomass is 9-19.5 gigatonnes, which is approximately 100 times the annual catch of current commercial fisheries.53 Scholar Irigoien’s research on the region of the latitudes 40° N and 40° S even suggests an approximately 30% higher estimate of the global mesopelagic species biomass as 14.3 to <19.5 gigatonnes.54 Notably, other studies estimate the global mesopelagic species biomass significantly lower. For instance, Scholar Anderson values the

49 Raúl Prellezo, ‘Exploring the economic viability of a mesopelagic fishery in the Bay of Biscay’ (2018) 76(3) ICES Journal of Marine Science 771, 771-773. 50Paras Nath Jha and others, ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep. 1, 1-2. 51 Christopher Glass & Clement Wardle, ‘Comparison of the reaction of fish to a trawl gear, at high and low light intensities’ (1989) 7(3) Fish. Res. 249-266. 52 Abbas Ziaee Shilat & Tooraj Valinassab, ‘FAO Fisheries Circular No. 935: Trial fishing for lanternfishes (myctophids) in Gulf of Oman (1989-1990)’ (FAO Fisheries Technical Paper, 1998) 1, 66. 53 Roland Proud and others, ‘Biogeography of the Global Ocean’s Mesopelagic Zone’ (2017) 27(1) Current Biology 112, 113-119; Glen Wright et al., ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 6. 54 Xabier Irigoien and others, ‘Large mesopelagic fishes biomass and trophic efficiency in the open ocean’ (2014) 5(3271) Nat Commun 1-2.

global mesopelagic biomass as 1 to <2.4 gigatonnes.55 Scholars Gjøsaeter and Kawaguchi’s 1980 study presents a similar global biomass estimate of 1 gigaton. However, their method used to estimate the biomass has been criticised by Scholar Kaartvedt in 2012.56 Although the estimates of the global biomass differ due to the different methods used to analyse the mesopelagic global biomass, this does not diminish the gravity of exploiting the mesopelagic zone. It is estimated that 60% of the earth’s surface reaches the mesopelagic zone and 20% of the ocean’s volume is situated in this zone.57 The mesopelagic zone has enormous potential to feed our growing world population. However, this should not be at the expense of the ocean’s survival, as the mesopelagic zone plays a crucial role in the ocean food webs and global carbon cycle.58

2.4. Consequences of Mesopelagic Species Overexploitation

2.4.1. Interlinked Ocean Food Webs

Many mesopelagic fishes, squid, zooplankton, and other organisms participate in the largest animal migration on this planet by vertically migrating every day from the mesopelagic zone to the surface waters.59 Scholar Hoagland states that, due to the migratory nature of mesopelagic marine animals, these fauna are subject to the diet of a large range of pelagic predators including commercially caught tuna, sharks, swordfish, and billfish. 60 Moreover, Hoagland and Martin state that the diet of the mesopelagic fish consists of deep-sea bottom fauna, for example, by seamounts. 61 Consequently, mesopelagicmarine life is a key component

55 Simon Jennings & Kate Collingridge, ‘Predicting Consumer Biomass, Size-Structure, Production, Catch Potential, Responses to Fishing and Associated Uncertainties in the World’s Marine Ecosystems’ (2015) 10(7) PloS ONE 1-28; Thomas Anderson and others, ‘Quantifying carbon fluxes from primary production to mesopelagic fish using a simple food web model’ (2019) 76(3) ICES Journal of Marine Science 690, 690-701. 56 Jacob Gjøsaeter & Kouichi Kawaguchi, ‘A review of the world resources of mesopelagic fish No. 193’ (FAO Fisheries Technical Paper, 1980) 151; Stein Kaartvedt and others, ‘Efficient trawl avoidance by mesopelagic fishes causes large underestimation of their biomass’ (2012) 456 Marine Ecology Progress Series 1–6. 57 Roland Proud and others, ‘Biogeography of the Global Ocean’s Mesopelagic Zone’ (2017) 27(1) Current Biology 112, 113-119. 58 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 9. 59 ibid 16. 60 ibid. 61 ibid.

of the food webs on all pelagic levels of the ocean and carbon cycle.62 In other words, the consequences of overexploitation in the mesopelagic zone will affect the fauna in all pelagic zones.

2.4.2. The Mesopelagic Zone’s Impact on the Ocean’s Carbon Cycle

Analysing the biomass of the mesopelagic zone is necessary for understanding the role of this zone in the marine environment and the consequences of its exploitation. The mesopelagic zone is an essential part of the ocean carbon cycle which is part of the global biogeochemical cycle. A carbon cycle regulates the flow of carbon and how the planet conserves and uses elements and compounds.63 The ocean absorbs one-third of human-caused carbon dioxide (CO2) emissions and 90% of excess heat caused by greenhouse gas emission.64 If the biological carbon pump, which maintains balance of the ocean’s carbon cycle, is negatively affected due to the exploitation of the mesopelagic species, the increased CO2 will raise ocean surface temperatures and cause ocean acidification and deoxygenation.65 These forms of global warming will deteriorate the marine ecosystem, changing the diversity and abundance of marine fauna and threatening the resources and economic and food security of both local and global industries.66

Due to the great global biomass of mesopelagic fauna, approximately 3-15% of the ocean’s carbonate production is contributed to by fish, and this production is largely dependent on the well-being of the mesopelagic fish.67 The contributions of mesopelagic fish to this biological carbon pump is evident in the net amount of carbon deriving from the mesopelagic zone, which is estimated to be between two and six billion metric tons annually. In contrast, one billion

62 ibid. 63 Roland Proud and others, ‘From siphonophores to deep scattering layers: uncertainty ranges for the estimation of global mesopelagic fish biomass’ (2019) 76 ICES Journal of Marine Science 718, 718-719. 64 Lisa Levin and others, ‘Deep-ocean climate change impacts on habitat, fish and fisheries’ (FAO Fisheries Technical Paper, 2018) 8. 65 Dan Laffoley & John Baxter, ‘Explaining Ocean Warming’ (IUCN, 2016) 10-11. 66 ibid. 67 Frank Millero and others, ‘Contribution of fish to the marine inorganic carbon cycle’ (2009) 323(5912) Science 259, 359-362; Sarah Purkey & Gregory Johnson, ‘Warming of global abyssal and deep Southern Ocean waters between the 1990s and 2000s: contributions to global heat and sea level rise budgets’ (2010) 23 Journal of Climate 6336, 6336–6351; Cecilie Mauritzen and others, ‘Importance of density-compensated temperature change for deep North Atlantic Ocean heat uptake’ (2012) 5 Nature Geoscience 1, 1.

metric tons of carbon dioxide is emitted by automobiles worldwide.68 If the mesopelagic fishes are overexploited, this would have a severe impact on climate change, as the amount of carbon dioxide these species take up will be limited.69

2.5. Concluding Remarks

Allowing the current mesopelagic commercial fishery scale to reach its full potential without an adequate conservation legal framework in place will have an adverse impact on the balance of the entire ocean. Before further exploitation of this area, it is necessary to further examine the role of the mesopelagic zone in preserving the ocean’s biodiversity and preventing global warming and climate change. Further research is necessary to understand how the existing international legal framework must be shaped to adequately protect mesopelagic fauna.

CHAPTER 3: Legal Frameworks Protecting Mesopelagic Species Conservation from Fishing Operations

2.1. Introductory Remarks

This chapter focuses on examining the relevant legal frameworks by addressing the research sub-question: Do ocean legal frameworks protect the mesopelagic zone from fishing operations? The relevant ocean governance frameworks focused on in this chapter are: the United Nations Convention for the Law of the Sea (UNCLOS), the United Nations Fish Stocks Agreement (UNFSA), the United Nations General Assembly Resolution 61/105, and the Convention for Biological Diversity (CBD). Notably, UNFSA, Resolution 61/105, and the CBD help to provide further depth on UNCLOS’s text. Furthermore, this chapter addresses the use of the Food and Agriculture Organisation of the United Nations (FAO) and Regional Fisheries Management Organisations (RFMOs), as these institutions practically implement the protection of the marine environment. By accounting for these legal frameworks, this work

68 Kristina Gjerde, Glen Wright, Carole Durussel ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 16. 69 Virginia Gewin, ‘Fishing the Deep’ (Hakai Magazine, 2016) <https://www.hakaimagazine.com/news/fishingdeep/> accessed 2 April 2021.

examines whether the legal protection for the mesopelagic zone is adequate or must be strengthened.

2.2. The United Nations Convention for the Law of the Sea

UNCLOS entered into force in 1994 with the aim of encouraging states to equitably and efficiently utilise ocean resources and protect the conservation of fish. 70 Article 192 of UNCLOS identifies that this comprehensive international ocean governance framework has established the general obligation for states to protect and preserve the conservation of the marine environment.71 The Southern Bluefin Tuna case by the International Tribunal for the Law of the Sea (ITLOS) emphasised that protection of the marine environment includes marine life.72 According to Article 192, the duty to preserve and protect the marine environment is not restricted to any specific marine area or pelagic zone. Moreover, significant transboundary harm to a marine environment, such as the mesopelagic zone, should be prevented, as emphasised in the Pulp Mills case and Legality of the Threat or Use of Nuclear Weapons advisory opinion. 73 Additionally, UNCLOS Article 194(5) emphasises the obligation to preserve ‘fragile ecosystems and depleted, threatened, or endangered species’ . 74 Although UNCLOS does not provide a definition of an ‘ecosystem’, for the sake of interpretation, the definition in CBD Article 2 is generally used as established in the Republic of the Philippines v. People's Republic of China case Paragraph 945.75 Article 2 of the CBD defines an ecosystem as a dynamic complex whereby the fauna and their habitat interact as a functional unit.76 Furthermore, the fragility of an ecosystem is identified according to ‘the degree of change in

70 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Preamble. 71 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 art 192. 72 Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures Order) [2000] ITLOS Rep 2000 Para 23; Myron Nordquist et al., United Nations Convention on the Law of the Sea 1982: A Commentary: Volume IV (Martinus Nijhoff Publishers 1991) 43. 73 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) [2006] ICJ Rep 113 Para 101; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 Para 29. 74 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Article 194(5). 75 In the Matter of the South China Sea Arbitration (Republic of the Philippines v. People's Republic of China) (2015) ICGJ 495 Para 945; The Convention on Biological Diversity (adopted 5 June 1992 and entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 2. 76 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 2.

abundance of species’ following the impact of the harm which causes the ecosystem to be fragile.77 If the exploitation of the mesopelagic zone causes a severe change in abundance, the unprotected mesopelagic zone is to be identified as a fragile ecosystem. However, this merely allows for reparations, as the mesopelagic zone has not experienced a change of abundance due to exploitation yet. Consequently, to prevent severe harm, UNCLOS Article 194(5) cannot be used to protect the mesopelagic zone and its fauna and is not an adequate basis to protect the mesopelagic zone from future overexploitation.78

Ultimately, UNCLOS merely provides a general duty for states to protect the marine environment.79 UNCLOS provisions preventing and remedying harm to the mesopelagic zone do not explicitly mention the necessity of protecting the mesopelagic zone, and the International Court of Justice has yet to extend UNCLOS fish conservation protection to the mesopelagic zone.80 It can be argued that there is no reason to include mesopelagic species protection on such a high international level as there is no specific reference to the epipelagic species in UNCLOS either. Other legal regimes that allow for more specific fish protection must therefore be examined. Either way, considering the aforementioned statistics of overfishing, fishing protection also lacks for epipelagic species. Therefore, epipelagic species protection must not be a conservation standard to compare against. In conclusion, UNCLOS provides insufficient protection for the mesopelagic zone fish, as its provisions are too vague as a legal basis for protecting the conservation of the mesopelagic species.

2.3. The United Nations Fish Stocks Agreement

The UNFSA (1995) strengthens and builds on UNCLOS obligations in a more detailed manner.81 This agreement provides guidance on the precautionary approach to fishery management and the implementation of the protection of biodiversity and ecosystem.82

77 Christer Nilsson and Gunnell Grelsson, 'The Fragility of Ecosystems: A Review' (1995) 32(4) J Appl. Ecol. 677, 678. 78 United Nations Convention on the Law of the Sea 1982, 1833 United Nations Treaty Series 397 Article 194. 79 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Article 192. 80 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Article 192. 81 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24. 82 ibid.

According to UNFSA Article 6, if the status of a species is of concern, states must monitor the efficacy of conservation and management measures in place.83 This article, moreover, provides that a state must adopt cautious conservation and management measures upon the establishment of new or exploratory fisheries of target stock. Such action must be executed until an EIA on the long-term sustainability of the fisheries concludes more appropriate conservation and management measures to be enacted. 84 This precautionary article, which allows for cautious conservation and management measures such as catch and effort limits of targeted species, is applicable to the mesopelagic zone given that its text includes straddling fish stocks.85 The United Nations General Assembly 61/105 further establishes that the UNFSA's general principles are applicable to discrete fish stocks on the high seas, also known as straddling fish stock.86 Straddling fish stock are fish that exist or migrate in more than one sovereign state’s waters. The mesopelagic zone fauna exists anywhere at a depth of 200-1,000 metres and does not limit its movement to national borders. In other words, mesopelagic fish are considered to be straddling fish stock.

The lack of research on this particular pelagic zone makes mesopelagic fishing an unforeseeable threat to the marine environment. It is necessary to apply precautionary measures to protect the mesopelagic fauna from exploitation until sufficient data has been found to provide an EIA of the area’s mesopelagic fishing.

The 2016 UNFSA review conference influenced the development of RFMO’s focus on managing deep-sea fisheries.87 The RFMOs which focus on deep-sea fisheries gave rise to the responsibility of states to inform the relevant RFMO of their plans to fish in the mesopelagic zone and comply with the applicable measures and obligations. Additionally, states must

83 UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 6. 84 ibid. 85 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24; UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 6. 86 UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105; UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 6; Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24. 87 Solène Guggisberg, ‘The Use of CITES for Commercially Exploited Fish Species’ 35 Hamburg Studies on Maritime Affairs 1, 50.

cooperate in the management of mesopelagic fish stocks.88 As a result, scientific data on the deep-sea fisheries in the mesopelagic zone which this cooperation of management provides is gathered. However, as deep-sea fisheries can be situated between 200 and 2,000 metres beneath the ocean surface, the creation of the deep-sea fisheries RFMO may not necessarily be applicable to the 200-1,000 metre-deep mesopelagic zone.

To conclude, although the UNFSA provides guidance on fish stock management and the precautionary principle, no reference to the mesopelagic zone is made in these provisions, which makes it difficult for the UNFSA to provide a legal basis for the protection of mesopelagic fauna. Furthermore, the obligations arising from the establishment of the deepsea fisheries RFMO may not necessarily apply to the mesopelagic zone. Although UNCLOS and UNFSA allow for a basis of protection for the mesopelagic zone, this will not protect the mesopelagic zone’s fish.

2.4. The United Nations General Assembly Resolution 61/105

The United Nations General Assembly (UNGA) adopts resolutions of the law of the sea and coordinates resolutions regarding sustainable fisheries whereby FAO takes effective measures, improves fisheries practices, increases state cooperation, or ratifies treaties.89 There is, however, still a lack of guidance regarding how UNCLOS obligations should be followed by states.

The 2006 UNGA Resolution 61/105 addresses the management of discrete high-sea fish stocks not covered in the UNFSA.90 This resolution includes the management of deep-sea bottom fisheries, which are urged to operate sustainably and favourably for marine biodiversity. There are no provisions explicitly protecting the mesopelagic zone. However, the mesopelagic zone may still be implicitly protected as paragraph 83 does state a rule for vulnerable marine ecosystems that fisheries are not allowed to operate in unless it can be proven that the fisheries will not cause ‘significant adverse impact’ on the marine environment.91 To

88 UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 8. 89 UNGA, Res 65/38 (7 December 2010) UN Doc A/RES/65/38 Para 5, 36, 62, 101, 105, 107. 90 UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105. 91 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 26; UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105 Para 83.

conclude, no specific provisions are provided on the mesopelagic zone, and this resolution, similar to the legal frameworks mentioned before, does not ensure an adequate legal basis to protect the conservation of mesopelagic fish.

2.5. The Convention for Biological Diversity (CBD)

The CBD creates binding rules for EIAs to protect biodiversity. Article 14 of the CBD claims that each contracting party, if appropriate and possible, has to introduce procedures requiring an EIA of operations that are foreseeably going to cause significant adverse impacts on the ocean’s biodiversity.92 Article 14(a) states that such procedures must aim to avoid or minimise these effects.93 In 2008, the CBD recognised the process of designating an ‘ecologically or biologically significant marine area (EBSA)’.94 Although an EBSA designation does not give rise to any conservation and management measures to be followed, it encourages state parties and intergovernmental organisations to cooperate in the creation of legislative measures for the conservation and sustainable use of marine areas.95 The Arabian Sea oxygen minimum zone is an EBSA focused on the productivity of mesopelagic ecosystems and their lanternfish.96 Furthermore, the North-East Pacific white shark offshore aggregation area is defined as an EBSA because of its high fish productivity. It has also been argued that its high productivity is caused by the mesopelagic fauna.97 However, due to the sparse scientific research available, very few mesopelagic additional areas have been defined as an EBSA.

To conclude, CBD Article 14 can be used to require an EIA if a mesopelagic fishing operation is likely to have significant adverse impacts. However, as the EIA procedure is a national matter of the relevant contracting party, this international legal framework does not provide a uniform procedure for an EIA to be implemented. Furthermore, an EBSA designation does not provide a legal basis which protects the conservation of the mesopelagic habitats and

92 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 14 93 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 14(a). 94 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 10. 95 ibid. 96 Ecologically or Biologically Significant Areas, ‘Arabian Sea Oxygen Minimum Zone’ (Convention on Biological Diversity, July 2017) <https://chm.cbd.int/database/record?documentID=237787> accessed 2 April 2021. 97 ibid.

their fish. It merely encourages states and international organisations’ cooperation in the creation of legislative measures for the conservation of the mesopelagic zone.

2.6. The Food and Agriculture Organization of the United Nations

The FAO focuses on assisting member states with their agricultural operations, and their committee on fisheries has an expertise in examining fisheries and aquaculture issues.98 The FAO Code of Conduct for Responsible Fishing (1995) strongly discourages fisheries to operate without an assessment of the area’s biodiversity. This is done to prevent, according to paragraph 7(5)(4), impacts ‘on the long-term sustainability of the stocks’.99 The FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) paragraphs 17-20 provide interpretational guidelines of ‘significant adverse impacts’, as mentioned in UNGA Resolution 61/105 and the CBD.100 The Deep-sea Fisheries Guidelines paragraph 17 states that significant adverse impacts occur when an ecosystem’s integrity is compromised. In this case, the ability of the affected population to replace themselves is impaired, the long-term natural productivity of habitats degrades, or a significant loss of species abundance or habitats is caused and this is not merely a temporary matter.101 Paragraph 18 further elaborates that upon determining the significance of the impact, the six factors to be considered are as follows: the intensity or severity of the impact, the spatial extent of the impact, the vulnerability of the ecosystem to such impact, the recoverability of the ecosystem from the impact, the degree of alteration of ecosystem function because of the impact, and the timing and duration of the impact.102 If significant adverse impacts will likely occur, fishers will not be allowed to operate and according to CBD Article 14 and UNGA Resolution 61/105 Paragraph 83 an EIA may be required to be imposed.103 The CBD and UNGA could therefore

98 Solène Guggisberg, ‘The Use of CITES for Commercially Exploited Fish Species’ 35 Hamburg Studies on Maritime Affairs 1, 50. 99 UN FAO Fisheries Department Code of Conduct for Responsible Fisheries (1995) Para 7(5)(4). 100 UN FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) Paras 17-20; Kristina Gjerde, Glen Wright, Carole Durussel ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24. 101 UN FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) Para 17. 102 ibid Para 18. 103 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 14; UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105 Para 83.

protect the mesopelagic species, however, the language is too vague to act upon. Moreover, the UNGA Resolution 61/105 and CBD provide no uniform procedure for the creation of an EIA.104 Consequently, the legal basis provided in UNGA Resolution 61/105 and the CBD must be strengthened by providing a stronger legal ground to protect the conservation of the mesopelagic species.

2.7. Regional Fisheries Management Organizations

Regional fisheries management organisations cover the majority of the high seas’ nonbinding rules and guidelines, and these organisations have a focus on conserving and managing fish stock.105 Moreover, RFMOs do not focus on the adoption of binding measures or the management of fisheries but instead offer advisory or scientific expertise on ocean governance. Most RFMOs are classified as international organisations that have a legal personality to exercise their implied powers, such as the International Council for the Exploration of the Sea, but this depends on the founding treaty of the organisation.106

Most RFMO rules are either focused on a targeted species such as tuna or are too vague to beapplied to protect the mesopelagic zone. One example is the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (2001) from the South East Atlantic Fisheries Organisation.107 Although this framework’s exploratory fishery rules focus on deep-sea bottom fisheries, the convention does not necessarily require a biodiversity impact assessment before fishing in the mesopelagic zone, as it does not explicitly state the mesopelagic area or its fauna but instead the bottom fishes.108 As scientific research is still scarce on this topic, obliging a marine EIA is a necessary amendment for understanding the effect on the biodiversity and food webs of mesopelagic fisheries in the relevant area prior to the fishing operations.

104 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD); UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105. 105 Solène Guggisberg, ‘The Use of CITES for Commercially Exploited Fish Species’ 35 Hamburg Studies on Maritime Affairs 1, 50. 106 ibid. 107 UN FAO Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (2001). 108 ibid.

2.8. Concluding Remarks

Current legal frameworks state that new mesopelagic fisheries must ensure the protection of the marine environment, adopt management measures that ensure the sustainability of the operations, and cooperate on the management of their fish stock with states and international organisations. Explicit ocean-governing legal framework rules on the mesopelagic area do not exist, and the rules protecting the marine environment are too vague to be applied to the mesopelagic zone. Although the laws mentioned in this chapter could be implicitly applied to the mesopelagic species, this will not ensure protection of the favourable conservation of the mesopelagic fish. The oceanic legal framework regime must be strengthened by mentioning the mesopelagic zone in its text. However, such wishful thinking will be met with the harsh reality of the international community’s unlikely willingness to reach a consensus on internationally recognised environmental obligations. It will be more plausible if this is done on a regional level through RFMOs and EU legislation. On such a scale, merely a small number of states' interests have to be taken into account to create an agreement. A regional approach to mention mesopelagic species will, moreover, be a more feasible option as it is uncommon to seek species-specific protection on an international level. The international legal framework regime may still introduce level, a uniform international EIA procedure necessary prior to mesopelagic fishing operations if a significant adverse impact is likely to occur.

CHAPTER 4: Strengthening Legal Frameworks to Protect Mesopelagic Species Conservation

4.1. Inroductory Remark

This chapter answers the following sub-question: How can the legal frameworks be strengthened to protect mesopelagic fish conservation? This chapter begins by providing an understanding of the current challenges which hinder legal frameworks from adequately protecting the mesopelagic zone. The chapter continues by addressing the recommended course of action to strengthen the protection of mesopelagic fish and their conservation from fishing operations. The recommended course of action involves the improvement of fishing equipment and guidelines in addition to focusing on the BBNJ agreement which is currently being negotiated.

4.2. Challenges of the Law-making Process Regarding Mesopelagic Fisheries

First, the sparse amount of scientific research on the unpredictable mesopelagic zone makes the decision-making process on mesopelagic law and guidelines difficult.109 The lawmakers will likely have a conservative approach to the necessity of protecting the mesopelagic zone. This is because of the international community’s forever unlikely willingness to bind themselves to internationally recognised environmental principles. Second, as the UNFSA only requires an EIA and management of targeted species, this ignores the interlinked food webs and consequences on non-target stock such as mesopelagic species.110 Furthermore, RFMOs’ exploratory fishing approval processes focus on bottom fishing, which does not necessarily include the mesopelagic zone.111 Consequently, it is difficult to build laws upon current fishery legal frameworks. Third, there is a lack of external stakeholder consultation in the law-making process because of limited participation in RFMOs. Only states with extractive fishing operations usually become a party to an RFMO.112 This creates a limited approach to biodiversity management. Fourth, the UNFSA imposed the obligation of state parties to cooperate regarding their mesopelagic fish stock with and through RFMOs.113 However, cooperation among different RFMOs is limited to the extent that they cannot adequately work together to respond to developing climate changeissues.114 Lastly, the RMFO state parties have to be committed to conserving fish stock, but their lack of management with regards to nontarget species leaves the marine ecosystems vulnerable causing the balance of the food webs to be undervalued. 115 This creates a gap in the management and conservation of ocean ecosystems and biodiversity.

109 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 12-13. 110 ibid. 111 ibid. 112 ibid. 113 ibid. 114 James Bell and others, ‘Demersal Fishing in Areas Beyond National Jurisdiction: A Comparative Analysis of Regional Fisheries Management Organisations’ (2019) 6(596) Frontiers in Marine Science 1, 1-2. 115 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 13.

4.3. Recommendations for Strengthening Legal Frameworks to Protect the Mesopelagic

Zone

4.3.1. Fishing Equipment

The improved fishing equipment which will allow for better mesopelagic fish catch may not be sustainable in its use.116 Through adequate legislation on fishing equipment, the issue of mesopelagic bycatch in fishing operations may be avoided, which would benefit both the fisheries’ profit-maximising interests and the ocean’s biodiversity.117 Moreover, a proportional trawl design and appropriate mesh size of the netting will likely increase the capability of fishing the mesopelagic zone. Rules must be established in order to guide fishermen to use equipment sustainably. These rules can be established by the FAO because of their experience in creating fisheries guidelines. Otherwise, fishermen must be offered training focused on fishing and equipment sustainability upon registering their request to conduct commercial mesopelagic fishing operations.

4.3.2. Guidelines

The Food and Agriculture Organisation has experience with creating international guidelines on the development of fisheries, such as the Code of Conduct for Responsible Fisheries (1995) and the International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2009).118 This is evident in the preamble to International Guidelines and paragraphs 14 to 20 which state the characteristics which deep-sea fisheries must possess. 119

Additionally, the FAO’s experience with creating international fisheries guidelines is evident

116 Caroline Ash, ‘A Desktop View of Overfishing’ (2004) 305 SCI 1242; Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 354. 117 Boopendranath and others, ‘Final Report on CIFT Project Component on Development of Harvest and Postharvest Technologies for Utilisation of Myctophid Resources in the Arabian Sea pertaining to MoES/CMLRE Project on Assessment of Myctophid Resources in the Arabian Sea and Development of Harvest and Postharvest Technologies’ (Central Institute of Fisheries Technology, 2012) 246. 118 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 14. 119 UN FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) Paras 14-20.

in Code of Conduct Article 8.120 Guidelines for exploratory mesopelagic fisheries regarding how to sustainably exploit the mesopelagic area’s biomass, which has yet to be sufficiently researched, may be provided by the Food and Agriculture Organisation. Providing this information encourages fisheries to sustainably handle the mesopelagic zone.

4.3.3. BBNJ Agreement

Currently, UN state parties are negotiating the creation of a new international binding legal framework under UNCLOS. This legal instrument would focus on protecting the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ).121 It is recommended that the BBNJ agreement includes the obligation for mesopelagic fisheries to cooperate with RFMOs, the necessity for an EIA prior to the operation of commercial mesopelagic fisheries, and the designation process of an MPA for a mesopelagic area.122

4.3.3.1. Regional Fisheries Management Organizations Cooperation

It is recommended that the BBNJ agreement includes principles for the conservation of the mesopelagic zone. Including rules encourages RFMOs to consider the mesopelagic species’ conservation in their fishery management measures. The BBNJ agreement should also include rules on cooperation among RFMOs and between RFMOs and external stakeholders. Current scientific research on the mesopelagic zone is scarce. However, if the RFMOs work together coherently with external stakeholders, this will allow for a wider pool of human resources and expertise available to work together on creating research and measures to protect the mesopelagic zone.123

120 UN FAO Fisheries Department Code of Conduct for Responsible Fisheries (1995) Article 8. 121 ibid. 122 ibid. 123 ibid.

4.3.3.2. Environmental Impact Assessment

Lawmakers do not see enacting mesopelagic conservation law and guidelines as favourable due to a lack of scientific research on the mesopelagic zone.124 The lack of mesopelagic conservation legislative initiatives may arguably be caused by the lack of research signifying the necessity of the mesopelagic zone’s protection.

Article 206 of UNCLOS addresses that states must conduct an EIA if there are ‘reasonable grounds for believing that planned activities under their jurisdiction or control may cause (...) significant and harmful changes to the marine environment’.125 Though this article might be used to protect the mesopelagic zone from exploitative commercial fishing operations, the enforcement of this article is limited because no guidance or reporting mechanism is provided to assist states.126 As a new binding governing framework under UNCLOS, the BBNJ agreement should include the minimum guidance and standards for the implementation of an EIA to encourage the use of Article 206.

An EIA allows for an increase in research on the impact of fishing in the mesopelagic zone. This in turn creates a more abundant legal basis to strengthen legal frameworks focused on the conservation of the mesopelagic zone. It has been reported that the potential of mesopelagic fish resources has attracted ‘large-scale industrial actors outside the traditional fisheries domain are paying attention to the potential of mesopelagic fisheries’.127 Once fishery equipment and technology for mesopelagic commercial fishing has been satisfactorily improved, it can be expected that the market will try to exploit the mesopelagic biomass’ profitable potential to its fullest capacity. Article 206 can be used to encourage an EIA if there is reasonable ground to believe that unsustainable exploitation of the mesopelagic zone will cause significant and harmful changes to the marine environment. This protects the mesopelagic biodiversity and will likely cause an increase in mesopelagic scientific research. It is recommended for the BBNJ agreement to have minimum guidance and standards on

124 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 12-13. 125 United Nations Convention on the Law of the Sea (adopted 10 December 1982 and entered into force 16 November 1994), 1833 UNTS 397 Article 206. 126 Ronald Warner, ‘Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework’ (2009) 3(24) Legal Aspects of Sustainable Development Series 244, 487-488. 127 Dag Standal and Eduardo Grimaldo, ‘Institutional nuts and bolts for a mesopelagic fishery in Norway’ (2020) 119(104043) Marine Policy 1, 2; Kristina Gjerde, Glen Wright, Carole Durussel ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 17.

Article 206 and to explicitly support the use of Article 206 for the mesopelagic zone to avoid excluding mesopelagic fisheries. Draft Article 24 of the BBNJ, which states the threshold and criteria for an EIA, aims to provide adequate protection for the mesopelagic zone in the international legal framework regime.128

4.3.3.3. Marine Protected Area

The designation process of an MPA in the BBNJ agreement would introduce an international mechanism that designates an MPA in an area beyond national jurisdiction.129 Such a provision is necessary to give the international community an opportunity to protect a vulnerable area beyond the states’ own scope of jurisdiction to protect the climate resilience of the ocean. Such a provision must include management tools to allow an MPA to function well after its designation.

4.3.4. Concluding Remarks

Sustainable fishing and fishing equipment rules will strengthen the legal framework regime by protecting mesopelagic fish on a soft law level. However, the negotiable text of the BBNJ agreement is the most feasible option to adequately strengthen protection on the conservation of the mesopelagic zone and its fauna. This binding instrument can expand the current ocean governing legal framework regime focused on protecting fish in general by explicitly mentioning the applicability of the BBNJ agreement for the mesopelagic zone and its species. The BBNJ agreement should include rules on RFMO cooperation, minimum guidance and standards for the implementation of an EIA, and an MPA designation procedure.

128 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 40. 129 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 16.

CONCLUSION

Fish conservation must involve legal protection to prevent the overexploitation of the marine environment and its abundance of species through overfishing and bycatch. The enormous potential of mesopelagic zone commercial fisheries makes this pelagic zone attractive for fishing operations once the fishing equipment and technology has been satisfactorily perfected.

Before this further exploitation of the mesopelagic zone, more scientific research is needed to fully examine the role of the mesopelagic zone and its fauna in the preservation of the ocean’s biodiversity. Though research on the mesopelagic zone is scarce, current findings already establish the gravity of leaving the mesopelagic zone without adequate legal protection. The well-being of the oceanic ecosystem is closely interlinked, and the ocean’s interconnected food webs and carbon cycle will be significantly impacted by the overexploitation of the mesopelagic zone and its fish.

In this paper, ultimately, the answer to the necessity of strengthening the legal framework regime to protect mesopelagic species conservation from fishing operations is sought. The climate science up until now shows the necessity of the protection of mesopelagic species conservation. International legal frameworks protecting the mesopelagic fish are imperative for the survival of the entire oceanic environment, though currently very much non-existent. Current ocean-governing frameworks do not explicitly mention the mesopelagic zone, and the general rules which protect the marine environment are too vague to apply to the mesopelagic zone. As a result, the ocean-governing legal framework regime must be strengthened to adequately protect the mesopelagic zone. On an international level, vouching in the BBNJ agreement negotiations for RFMOs cooperation, an EIA creation procedure, and an MPA designation procedure is currently the most feasible option. Improved protection will, however, mainly be adopted on an RFMO level as that is simply where the members of the international community implements species specific protection. On a regional level, rules for sustainable fishing equipment and specific guidelines on sustainable fishing in the mesopelagic zone would allow for a soft law approach to solving the problem of inadequate mesopelagic protection in the legal framework regime . A soft law approach will be very much feasible as its adoption will see minimum resistance by states.

This study concludes that the protection of the mesopelagic fish and their conservation from fishing operations must be strengthened in an international and/or regional legal framework. This conclusion has been realised upon examining the ocean governing legal

frameworks most relevant to the mesopelagic zone. Through soft law on a regional level and the BBNJ agreement on an international level, the legal framework regime focused on fisheries can be strengthened, and, consequently, the mesopelagic fish and their conservation can be adequately protected. The favourable conservation of the mesopelagic zone is essential for the ocean food webs and carbon cycle to thrive. Legal frameworks must strengthen their protection of mesopelagic fish to avoid harmful effects on the ocean’s well-being.