Seabird Bycatch - Deathbed Conservation or a Precautionary and Holistic Approach?
The focus of this article is on public international law as it relates to the issue of the incidental mortality of birds in marine fisheries – seabird bycatch. The international regulation of seabird bycatch is an exceedingly interesting topic, among other things because it is situated in the twilight zone where nternational fisheries regimes and international nature conservation regimes meet, and because it has developed rapidly in recent years. The article purports to provide an overview and analysis of this particular area of international law. At the same time, the topic is viewed from a broader perspective. In order to slow down current rates of biodiversity loss and ecosystem impairment, the international community of states appears to agree on the need to apply a precautionary, holistic approach to nature conservation. It is not clear, however, to what extent such an approach has until now been actually incorporated in international law. Against this background, the article examines the application of the precautionary principle and the ecosystem approach in international fisheries management and marine wildlife conservation law. It does so by zooming in on the specific issue of seabird bycatch. The question to what extent the precautionary principle and the ecosystem approach have been applied in the international law of relevance to this issue is dealt with by addressing four consecutive queries. First, what do the application of the precautionary principle and the ecosystem approach require in general? This part (par. 2) of the article concisely sets out the background and basic elements of the two concepts. Second, how do the requirements defined under the first question relate to seabird bycatch? This part (par. 3) of the article describes the problem of seabird bycatch, its potential solutions, and determines what the application of a precautionary and ecosystem approach requires in respect of seabird bycatch. Third, how is seabird bycatch in fact being regulated in international fisheries and wildlife law? In this context the article (in par. 4) addresses, among other things, the regime of the Bonn Convention on Migratory Species (CMS), 2 as well as international fisheries law and particularly the practice of regional fisheries management organizations (RFMOs). Fourth and finally, how does the regulation of seabird bycatch in these areas of international law relate to the standards defined before? This question is addressed little by little as part of the legal analysis just mentioned (par. 4), and an overall answer is provided in the article’s concluding part (par. 5).
A precautionary and holistic approach to seabird bycatch not only calls for the implementation of mitigation measures, but also for increased research and monitoring. This is needed to identify as completely as possible the fisheries with a bycatch problem, and the effectiveness of measures taken. In light of the resultant data, measures should regularly be reviewed and, as appropriate, adapted. As a final point, under a precautionary and ecosystem approach, bycatch mitigation action should evidently not be focused exclusively on threatened species, but also on ‘least concern’ species bycatch rates of which appear unsustainable.