Catch of the day: the TPP might be good news for sustainable fisheries

Since the Trans-Pacific Partnership (TPP) text was released earlier this month, commentators have sought to assess its impact on the environment.

They have expressed concerns about the enhanced rights it provides for investors, and criticised the absence of climate change mitigation in its provisions. However, the TPP does contain clauses that can enable countries to combat another global environmental crisis: overfishing.

Many of the world's most significant producers and consumers of fish are parties to the TPP. Japan and the United States are the top two importers of fish products, while the United States, Vietnam, Chile, and Canada are some of the biggest exporters. If the TPP comes into force, it will apply to a significant proportion of the global fish trade and its environmental impacts.

Background: the crisis of overfishing

As the World Wildlife Fund's Living Blue Planet Report emphasised last month, overfishing destroys marine ecosystems. Yet despite the risk of massive collapse of fish stocks, the trade in fish and fish products continues to grow, with exports reaching a new record of more than US$136 billion in 2013.

Certain features of the trade are particularly worrying. For example, international and domestic laws that limit catches, promote effective management, and protect certain species are often ignored.

Illegal, unregulated, or unreported (IUU) fishing accounts for between 13% and 31% of catches and more than 50% in some regions. Countries could do more to close their markets to IUU fish products. The European Union has led the way in using trade measures - including import bans against offending countries such as Cambodia, Guinea and Sri Lanka - to fight against IUU fishing. The United States, Japan, and other countries that are now in the TPP have not been as proactive.

The trade in fish products is also distorted by massive subsidies. In fact, taxpayers, through the policies of their respective countries, are propping up the fishing sector. Fisheries subsidies were estimated at about US$35 billion in 2009. These subsidies allow boats to be built and operated when it would be otherwise unprofitable to do so.

Ongoing negotiations to clarify and reform fisheries subsidies at the World Trade Organisation have failed to achieve agreement.

TPP for sustainable fisheries?

The Trans-Pacific Partnership attempts to address these problems — at least for the trade between TPP countries.

In the separate Environment Chapter, the agreement recognises that participating nations may use measures to prevent trade in fish products that result from illegal, unreported, and unregulated (IUU) fishing. These measures may include catch documentation schemes and port access restrictions.

Given the scale of trade between TPP parties, an increased use of trade measures to control IUU fishing - and therefore overfishing - is an important development. It is estimated that within the United States, for example, between 20% and 32% of wild-caught seafood imports are illegal. The United States intends to improve its methods to trace fish products throughout the supply chain, and the TPP would support this initiative as well as other measures to restrict the trade in IUU fish.

Methods that allow countries to restrict access to ports of certain fish products are also important. The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing was concluded by members of the Food and Agriculture Organisation (FAO) in 2009 and ratified by Australia this year. But it does not yet have enough ratifications to come into force.

Seven of the twelve parties to the TPP are yet to ratify this FAO agreement (including Canada and Japan). So the TPP's explicit obligation for parties to implement port state measures to combat IUU practices is a positive development.

Also welcome is the Environment Chapter's prohibition on subsidies for fishing that "negatively affect fish stocks that are in an overfished condition". Many nations subsidise their fishing industries, with Japan currently providing the most subsidies among developed countries (19.7% of total). Despite continuing uncertainty about how to characterise and document the subsidies that will be prohibited under the TPP, getting agreement on this issue is a significant achievement that may even influence the broader reform currently discussed at the World Trade Organisation.

Other provisions in the Environment Chapter require each nation to seek to operate a science-based fisheries management system, and promote the long-term conservation of sharks, marine turtles, seabirds, and marine mammals. The draft text leaked last year shows that these provisions could have been stronger, even extending to shark finning and whaling.

One strength in the TPP is that the obligations relating to fisheries are enforceable. Countries can bring legal challenges against one another for violations in a way that is not always possible under environmental treaties.

To be sure, the enforcement of the provisions of the Environment Chapter will depend on the willingness of countries to take environmental claims against one another - a willingness that is rare in the context of other US-partner free trade agreements - but having the possibility is a positive step.

Australia showed that it is willing to take such litigation when it brought a claim against Japan over whaling in the International Court of Justice.

The TPP's environmental credentials

Now that the negotiations of the TPP have concluded and the text has been made available, TPP Parties will be engaged in a process of consultation and review before each country decides to ratify. As part of this process, politicians and the public should make an assessment of the environmental credentials of this agreement.

In Australia, ratification will not occur until after the TPP and accompanying National Interest Analysis are tabled in the Parliament. The Joint Standing Committee on Treaties will also conduct an inquiry and will report to Parliament.

In regard to fisheries, the provisions in the Environment Chapter should be assessed alongside other TPP rules, particularly those concerning investor protection and investor-state dispute settlement (ISDS). For example, would denying a supertrawler access to territorial waters leave Australia open to expensive litigation and liability for compensation? It may be that the useful rules relating to the trade in fish do not outweigh such risks.

Moreover, the fate of fisheries is only one of many urgent environmental problems. There is no doubt that the TPP's vague support for transitioning to a "low-emissions economy", for example, will do little to alleviate climate change.

A thorough interrogation of the TPP's environmental credentials must precede Australia's ratification. This article seeks to contribute to this ongoing work and finds that the agreement contains trade rules that can help countries to combat overfishing.

Margaret Young, Associate Professor, Melbourne Law School, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.