1. 1 Potential Causes of Action for Climate Change Impacts
under the United Nations Fish Stocks Agreement
Dr. Wil Burns, SCU Law
1. Introduction
• On a parallel track to the domestic climate change litigation that’s been
initiated, a number of international actions have either been initiated or
contemplated in judicial or quasi-judicial fora.
• The two “live” international cases at this point are:
o In 2005, the Inuit people of Canada and Alaska have filed a petition
with the Inter-American Commission on Human Rights, alleging
human rights violations associated with the failure of the U.S. to
curb its greenhouse gas emissions
It requested that the Commission prepare a report
recommending that the U.S., inter alia:
• Adopt mandatory measures to limit its greenhouse
gas emissions;
• Take into account the impact of U.S. greenhouse gas
emissions on Arctic and Inuit before approving major
government policies;
• Establish a plan to protect Inuit culture and resources.
Petition was rejected by the Commission in December 2006
• However, the Commission subsequently agreed to
reconsider the petition, and held a hearing in March
2007, no decision yet.
o Between 2004 and 2006, NGOs from several countries submitted
five petitions to the World Heritage Committee, requesting that it list
several World Heritage sites on the “list of World Heritage in
Danger” under the World Heritage Convention.
The petitions contended that each of these sites, which
included Sagarmatha National Park in Nepal; Belize’s Barrier
Reef Reserve System and the Great Barrier Reef in
Australia were being imperiled by climate change;
The petitions called for State Parties to the World Heritage
Convention to adopt effective mitigation strategies,
essentially calling for drastic cuts in greenhouse gas
emissions;
At its 30th meeting in 2006, the World Heritage Committee
rejected the petitions, opting instead for a “Strategy to Assist
States Parties to Implement Appropriate Management
Responses” which emphasized adaptation and internal
mitigation responses;

2. • However, the Committee did indicate that listings on
2
the List of World Heritage in Danger for climate
damages would be considered on a case by case
basis.
o Given the limitations of these actions, some States and legal
scholars have begun exploring alternative forums in which to bring
actions to compel effective responses to climate change.
This presentation will look at one of these potential forums,
the Agreement for the Implementation of the Provisions of
the U.N. Convention on the Law of the Sea Relating to the
Conservation and Management of Straddling Fish Stocks
and High Migratory Fish Stocks (hereinafter “Fish Stocks
Agreement)
In this presentation, I will [SLIDE 2]:
1. Define “straddling stocks” and “highly migratory species” and give some
examples;
2. Describe the potential impacts of climate change on straddling and highly
migratory stocks;
3. Outline the history of the Fish Stocks Convention and provisions germane
to a cause of action for climate change impacts;
4. Briefly discuss potential barriers to such an action.
2. Overview: Straddling and Highly Migratory Stocks
A. For those of you who don’t spend a lot of time in the field of fisheries law:
What are “straddling stocks” and “highly migratory species”?
b. “Straddling stocks” are species that migrate or occur both within the
200 mile Exclusive Economic Zones (EEZs) accorded coastal States
under the Law of the Sea Convention and the high seas, or between
the 200 EEZs of two or more States [SLIDE 3]
i. The most important sources of straddling stocks (mainly
demersal) seem to be the Northwest and Southeast Pacific
areas followed by the Northeast Pacific and the Southwest
Atlantic
1. Prominent examples of straddling stocks include
Alaskan Pollock, Atlantic cod, hake, halibut
b. “Highly migratory species” are fish species that have wide
geographic distribution and undertake significant migrations,
frequently thousands of miles
i. Highly migratory species include many species of tuna and
tuna-like species, oceanic sharks, mackerel, saurie, pomfret,
swordfish, marlin, and sailfish [SLIDE 3]

3. c. In aggregate, highly migratory and straddling stocks species
3 account for roughly 20 percent of the total marine catch and include
some of the most economically valuable fish populations
3. Potential Impacts of Climate Change
A. Temperature impacts:
a. Because fish species are ectothermic (cold-blooded), water
temperature is the primary source of environmental impact on these
species, with implications for growth and maturity rates, distribution
and migration patterns, and incidence of disease;
b. Projected increases in ocean temperatures this century associated
with climate change are likely to have adverse impacts on many
fish species, including straddling stocks and HMS:
i. For example, the range of colder water fish species, such as
capelin, polar cod and Greenland halibut, is likely to shrink,
resulting in a decline in abundance;
ii. A decline in nutrient upwelling as a consequence of
increased stratification between warmer surface waters and
colder deep water could also result in a decline in bigeye
and yellowfin tuna in the central and western Pacific
iii. Warming oceans could also radically change the distribution
of some straddling stocks and high migratory species.
1. For example, rising ocean temperatures could result
in a shift of the distribution of herring northward,
upsetting a delicate fisheries agreement in the
Northeast Atlantic between coastal States who
harvest herring within their EEZs and distant water
fishing nations
iv. Strong shifts in distribution of prey species associated with
warming trends could also adversely affect species. For
example, biogeographic shifts of copepods in the North Sea
might ultimately spell the doom of cod stocks there.
B. Direct Biological Impact:
a. Finally, there may be direct biological impacts of introducing huge
amounts of additional carbon dioxide into oceans.
b. Rising CO2 levels will result in substantial drops in ocean pH by the
end of this century, which could imperil reef and shell building
organisms by substantially reducing their ability to form calcium
carbonate shells
1. For example, it could spell the doom of a group of
snail species, the pteropod [SLIDE 5]
a. Pteropods are an important prey species of
several straddling stock species in the Ross
Sea, including North Pacific salmon, herring
and cod

4. 4
4. Climate Change and the Fish Stocks Agreement
A. UNFSA was adopted in 1995 as a response to marked declines in
many straddling stocks and highly migratory species, primarily as a
response to the increasing pressures on these stocks as coastal
State Parties to the UNCLOS established 200-mile EEZs
i. Enhanced fishing technologies also played a role in
increasing pressure on these stocks
B. While UNCLOS contained provisions for management of straddling
stocks and HMS’s by coastal states and DWFNs, they are
precatory in nature, i.e. only calling for parties to “seek to agree”
upon management measures or to cooperate “with a view” to
ensure conservation.
C. The Fish Stocks Agreement entered into force in 2001 and
currently has 68 Parties, including most States with significant
interests in international fisheries, including the United States
D. The primary focus of the Fish Stocks Agreement is clearly on the
harvesting of fish species
i. It seeks to engender cooperation between coastal states and
high seas fishing States to agree upon necessary measures
for conservation of stocks in the high seas areas and
straddling stocks through direct agreements and cooperation
in Regional Fisheries Management Organizations
E. However, I would argue that the FSA also has several provisions
that could be used to implement pressure on Parties to pursue
effective climate change policies:
i. The Agreement clearly contemplates regulation of other
threats to straddling and highly migratory stocks [SLIDE 6]:
1. Article 5(a): mandates any measures necessary to
ensure the long-term sustainability of straddling and
high migratory species;
a. Thus, to the extent that climate change is a
potent anthropogenic stressor, there is an
obligation on the Parties
2. Even more on point, Article 5(d) mandates
assessment of non-fishing factors’ impacts on
straddling stocks and HMS’s, including environmental
stressors;
a. Clearly, could include climate change impacts
3. Third, Article 5(f) mandates minimization of “pollution”
a. While the Straddling Stocks Agreement doesn’t
define the term “pollution,” given the close
relationship of the agreement to UNCLOS, it
would seem reasonable to apply UNCLOS’s

5. definition of this term which is “the introduction
5 by man, directly or indirectly, of substances or
energy into the marine environment”
i. Given the direct and adverse impacts of
carbon dioxide on ocean species as a
consequence of ocean acidification, the
rapidly rising rates of carbon dioxide
being introduced into the oceans as a
result of the burning of fossil fuels and
other activities would make it
reasonable to construe carbon dioxide
as a polluting “substance” for the
purposes of Art. 5(f)
ii. Moreover, the heating of the oceans
associated with climate change would
likely be construed by a dispute
resolution body as the introduction of
“energy” since UNCLOS has construed
the introduction of heated waste water in
this manner.
4. Finally 5(g) requires protection of ocean biodiversity,
which clearly is threatened by climate change during
this century and beyond
ii. Thus, to the extent that climate change may result in a
diminution of certain stocks, or alter their distribution in a
way that adversely affects the interests of discrete Parties, a
cause of action could arise under the obligations in Article 5
F. Dispute resolution:
1. Rare among international environmental agreements,
UNFSA provides for a binding dispute resolution
mechanism where efforts to resolve the dispute
through non-binding methods is unavailing
a. Under Article 30, the Fish Stocks Agreement
applies the dispute resolution mechanism set
out in Part XV of UNCLOS to any dispute
under the Agreement, even where one or more
of the disputants are not Parties to UNCLOS.
b. Part XV of UNCLOS, in turn, provides for four
potential fora in which to settle disputes
[SLIDE 7]
c. States may choose to declare their choice of
forum, but in cases where they have not, or
Parties to a dispute have not accepted the
same procedure for dispute settlement, the
dispute must be submitted to binding
arbitration unless the Parties agree otherwise

6. 2. Remedies:
6 a. First, an injured party in a dispute resolution
forum under the Agreement, could seek to
compel a party to fulfill its Article V obligations
described above by enacting effective
measures to reduce anthropogenic
greenhouse gas emissions, thus ameliorating
potential impacts on fish species;
b. Second, the Straddling Stocks Agreement
adopts the well-recognized “no harm rule” of
international environmental law, providing for
the possible collection of damages if State
responsibility can be established under
international law [SLIDE 8]
i. I believe we could ascribe responsibility
to Party to Straddling Stocks Agreement
whose failure to address climate change
has resulted in damage to fish stocks in
two ways:
1. Under the UNFCCC, to which
every major greenhouse gas
emitting State is a party, provides
for responsibility for creating
transboundary damage
associated with climate change
[SLIDE 9]
2. Could argue state responsibility
for transboundary damage under
CIL
G. Potential Parties:
1. U.S. is the most reasonable party to bring action
against since it has rejected Kyoto and emphasized
voluntary measures that by its own admissions will
likely result in emissions rising to 35% above 1990
levels by 2012 and more than 50% by 2025
2. However, given the fact that many of the parties to the
Kyoto Protocol may not even fulfill their modest
commitments, and have dragged their feet on long-
term commitments, actions could be targeted at
others
a. And, fast-growing developing States e.g. China
and India might be potential parties to bring an
action against in the future should they become
Parties to the Agreement

7. 7 5. Potential Barriers to UNFSA Actions
A. General Causation:
1. In many cases, declines of fish stocks or shifts in distribution may be
attributable to a number of factors other than climate change, including
overfishing, habitat destruction, or diminution of prey species
2. However, this shouldn’t be an absolute barrier to a Fish Stocks
Agreement action:
a. Courts are increasingly employing statistical probability analysis
to support a finding of liability when there is a reasonable level
of probability that an environmental stressor may have caused
or contributed to a harm;
b. Second, the Fish Stocks Agreement provides for wide
application of the precautionary approach to protect living
marine resources.
i. Thus, even under scenarios of uncertainty about a given
threat “[t]he absence of adequate scientific information
shall not be used as a reason for postponing or failing to
take conservation and management measures.”
ii. While this provision might not be helpful in obtaining
damages, it would provide a rationale for imposing the
conservation obligations under Article 5.
B. Specific Causation:
a. The target of a climate-related UNFSA action might argue that
climate change is caused by a multitude of anthropogenic sources,
and thus, any specific harm cannot be attributable to a specific
Party, even a large greenhouse emitting State such as the United
States.
b. This may prove to be an imposing barrier to actions for damages.
i. However, this argument wouldn’t be that germane in cases
where a Party was only seeking a commitment by the
targeted Party to fulfill its “duty to cooperate” under the treaty
by enacting effective conservation measures
1. This is an obligation that inheres purely by the fact
that a State is a Party to the agreement, irrespective
of their overall contribution to the problem.
c. Reluctance of Dispute Resolution Bodies to Address Climate
Change.
i. Some domestic courts addressing climate change issues
have shown a reluctance to address the arcane scientific
issues associated with such issues;
1. Might be addressed by disputant Parties by opting for
a special arbitral panel provided for under the Law of
the Sea Convention/Fish Stocks for these cases
a. Special arbitral panels can hear cases, in
among other categories, those involving

8. fisheries or marine environmental issues
8
[SLIDE 10];
i. And special arbitral panels draw their
panelists from the Food and Agriculture
Organization, the United Nations
Environment Program and the
Intergovernmental Oceanographic
Commission, all of whom have experts
on the nexus of fisheries and climate
change [SLIDE 11];
1. And, notably, U.S. opted for
special arbitral panels under
UNFSA as its preferred dispute
resolution forum.
ii. A UNFSA dispute resolution panel might also be reluctant to
address issues that are far abreast of the primary focus of
the agreement, i.e. cooperation on the harvest of fish;
iii. UNFSA might be afraid to issue decisions that undercut their
legitimacy because a hegemon e.g. the U.S. might choose to
ignore its judgment
1. This may be have been the reason for the incredibly
tepid responses of the Inter-American Commission
and the World Heritage Committee
iv. Realpolitik
6. Conclusions
In a perfect world, the threat of climate change would be effectively
addressed through the international institutional responses developed in
the 1990s. Unfortunately, the specter of climate change looms larger now
than a decade ago, and the prospects for adequate responses within the
UNFCCC framework appear increasingly remote. Now more than ever,
those most vulnerable to the impacts of climate change must explore
alternatives that may finally galvanize the major greenhouse emitting
States into action. UNFSA is one option that deserves further exploration.
Alternative is the following: [SLIDE 12]