RESEARCH PAPER NUMBER: X1
RESEARCH PAPER MNEMONIC: XFISH
RESEARCH PAPER NAME: Fish Depletion and Trade
DRAFT AUTHOR: Sharon McDermott
I. AbstractIn the burgeoning world economy, divergent interests and values often meet and create conflicts between different states and regions. The ever increasing number of regional and international treaties and policies on trade and environmental issues are at time incongruent and when discrepancies arise as a result of these inconsistencies, diplomatic and trade relations suffer. Many of these disagreements have to be resolved in international legal forums. The fish industry has found itself in the thick of a number of these conflicts.
II. Issue
BackgroundStudies of the oceans' carrying capacity suggest that the global production of fish may already have reached the maximum "take" that can be sustained. Overfishing now threatens most major commercial fishing grounds, and a principal factor is the lure of trade. In 1994, the UniTED Nations' Food and Agriculture Organization ("FAO") warned that nine of the world's 17 major fishing grounds had been devastaTED by over-fishing,(1) and in 1995 it reporTED that 69% of fish stocks worldwide are now either fully exploiTED, overfished, depleTED, or rebuilding from previous overfishing.(2) This alarming drop in fish stocks, coupled with the ease with which fishermen can access the waters of other nations, has led to the promulgation of many regional and international treaties. Unfortunately, many of these treaties, which have been hurriedly or half-hearTEDly creaTED in an attempt to resolve environmental and trade issues, often are overlapping or inconsistent.
The most comprehensive agreement to date is the Agreement for the Implementation of the Provisions of the UniTED Nations Convention of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. It was reached in August 1995 and attempts to manage international fisheries. It elaborates on provisions of the original Law of the Sea accord that relates to fish stocks that straddle the boundaries of economic zones and fish species that migrate long distances. Straddling fish stocks and highly migratory fish stocks are species found within the 200 mile exclusive economic zones (EEZs) of two or more coastal states or within a zone and an adjacent area of the high seas. The agreement defers to the quotas and conservation measures set by regional fishing organizations for these areas, but expressly allows the boarding and inspection of vessels to monitor compliance. Where there are conflicts between nations over fishing rights, the agreement requires compulsory and binding third-party dispute settlement under the terms set out in the Law of the Sea.(3) This agreement sets out principles for conservation and management of stocks based on a precautionary approach and the best scientific information, ensures that conservation and management measures are adhered to and not undermined by those who fish for stocks, and enumerates provisions for peaceful settlements of disputes.(4)
Other agreements have been ambiguous and far less ambitious in addressing the environment/trade issue. The General Agreement on Tariffs and Trade (GATT) has generally required only that a given measure not be a disguised restriction on trade.(5) The Uruguay Round of the GATT merely calls for "scientific justification" as the basis for any such laws deviating from international norms.(6)
Regional agreements attempting to address the environmental/ trade issue include NAFTA and the Maastricht Treaty. The North American Free Trade Agreement (NAFTA) would require that standards designed to protect human, plant, or animal health be based on "scientific principles" as well as on "risk assessment, as appropriate to the circumstances."(7) Under European Union law, in order for an environmental law that constrains trade to be allowed, its environmental benefit must be deemed proportional to the restraint on trade -- that is, of great enough value to be worth the lost trade.(8) However, terms such as "necessity" and "justification" can be subjective, and trade dispute resolution panels have tended to interpret trade agreements in a way that would rule out a number of legitimate environmental policies.
The tuna-dolphin dispute between Mexico and the UniTED States is instructive because it highlights the disparities between national and international priorities and the continued preference of trade over the environment. This dispute arose when the UniTED States imposed an embargo against Mexican tuna imports because Mexico's tuna was caught using methods in violation of the U.S. Marine Mammal Protection Act. A GATT panel held that the GATT rules, which do allow for national product standards for imporTED goods, did not apply to this case because it was the process by which tuna was produced rather than the tuna itself that was rejecTED by the UniTED States. The panel based its ruling on the assumption that the environmental exceptions permitTED by GATT only pertained to the environment within domestic borders or jurisdiction.(9) Because the embargo was imposed unilaterally rather than through an international treaty, the UniTED States' action was viewed as an attempt to inflict its environmental laws on another sovereign country.
Here are some specific case studies relevant to this issue.
III. Relevant TED
CasesAs a result of the alarming decline of fish stocks in its waters, Canada has imposed stringent quotas and fishing standards on its waters. The Spanish, however, disregarded Canada's restrictions and in 1995, Canadian warships seized Spanish fishing vessels in international waters and confiscaTED illegal nets, whose mesh size was so small that turbot too young to spawn would get caught. The Spanish claimed the seizure of theirs ships was a breach of international law. Ultimately Canada and the EU (acting on behalf of Spain, a Member State) reached a bilateral agreement which set quotas low enough to preserve species, and agreed on acceptable fishing gear that would prevent unwanTED fish from being snared by accident.(10)
The Northwest Atlantic Fisheries Organization (NAFO) of which Canada is a member, has determined cod quotas in the Northwest Atlantic since 1977. In 1986, the EU began setting its own quotas, which have consistently been higher than those of NAFO. The EU refused to abide by the NAFO quotas set in 1991, leading to the dispute over quotas and cod conservation in the Northwest Atlantic. Canada accused the EU of overfishing in the waters just outside Canada's 200 mile exclusive economic zone, and depleting vital cod stocks near Newfoundland. The EU maintained that EU vessels were consistently withdrawn from the waters after fulfilling its quotas. As a result of Canada's subsequent proposal to revise the UN Convention Law of the Sea, a new treaty (Agreement for the Implementation of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks) was adopTED in 1995 that will legally bind States to conserve and sustainably manage high-seas fisheries and settle fishing disputes peacefully.(11)
The European Union calculates and imposes total allowable catches on its Member States in an effort to conserve its fish stocks. With the admission of Spain to the EU, quotas had to be recalculaTED and reprioritized. In 1988, in an effort to preserve its fish stocks, the UK enacTED the Merchant Shipping Act, which stipulates that 75% of all ships and fishing industries operating in U.K. waters had to be British owned and that 75% of the crews on all ships registered in the UK also had to be citizens of the UK. It was to prevent other countries from quota hopping by registering under the British flag and using the UK's fishing quotas. Quota hopping is a practice wherein "flag of convenience" boats register in a foreign country for the sole purpose of catching fish there, thus diminishing that country's fish quotas. Flag of convenience boats account for millions of pounds of fishing quotas without providing any benefit to the local economy as the fish do not have to be landed in the "home" country. The Spanish took the UK to the European Court of Justice, contending that the Merchant Shipping Act was a protectionist barrier. The European Court of Justice found that the Merchant Shipping Act was indeed protectionist and ordered the UK to pay damages.
The UniTED Nations and European Union have both banned the use of giant fishing nets on the seas. Although using driftnets is "illegal", the UniTED Nations' moratorium carries no penalty and the censuring of violators of the EU regulation is an arduous process that in this instance has not been pursued. To date, no driftnet cases have been brought before the European Union Court of Justice, but nations continuing to use driftnets (Italy and France) will undoubTEDly eventually be confronTED in the European Court of Justice by nations suffering from the rapid depletion of fish stocks caused by the continued use of driftnets, namely Spain, Greece and Portugal.
Driftnet fishing by Japanese fleets led to a marked decrease in fish stocks and led to the rapid destruction of valuable sea resources by Asian fleets in the North Pacific Ocean. The UniTED States, Canada and Russia were alarmed. In 1987, the UniTED States concluded bilateral agreements with Japan, Taiwan and South Korea under the Driftnet Impact Monitoring Assessment and Control Act of 1987. These agreements established scientific monitoring and enforcement programs for driftnet fisheries in the North Pacific and provided for the strict observation of Asian vessels so that these fleets do not operate in areas where they may take U.S.- origin salmonids. Finally, in 1991 the UniTED Nations called for a global moratorium on large-scale high-seas driftnet fishing. As a result, Japan halTED large-scale high-seas driftnet fisheries.
The UniTED States banned imports of tuna from Mexico because Mexican fishermen still used methods of catching tuna that killed dolphins. This was in violation of the UniTED States' Marine Mammal Protection Act (1984), which aimed to decrease foreign kills by prohibiting the import of yellowfin tuna from nations that did not have regulatory programs and comparable mortality rates to the UniTED States. Mexico appealed the embargo to the GATT, which ruled in favor of Mexico. Eventually, the UniTED Stats and Mexico reached a bilateral agreement resolving this issue.
The Central Bering Sea, between the UniTED States and Russia, is termed "Donut Hole". In this area, stocks straddle or move between the open area and an area of regulaTED national jurisdiction. The Central Bering Sea is completely surrounded by the two nations' exclusive economic zones. Large-scale fishing of pollock by UniTED States, Russia, Japan, South Korea, China and Poland resulTED in the depletion of its stock and endangered other species which feed on it. In 1994, the aforementioned states agreed amongst themselves upon quotas and enforcement measures.
The UniTED Kingdom unilaterally extended its fishing zone around the Falklands by 850 miles in 1994, under the pretext of conserving the squid stock. Argentina, which competes with England for squid, contended this act was in response to its 1994 Constitution, which extends Argentina's rights to the Falklands, although England does not recognize that right. Though nationalism and politics have clouded the environmental issue, the squid off the coast of the Falklands is in danger of overexploitation. Argentina and England continue to exchange accusations. To date, no legal action has been taken, and this disagreement has yet to be resolved.
| Case Name | Forum and Scope | Discourse and Status | Exporter/Importer |
|---|---|---|---|
| Turbot Loss and Canada | UN and Multilateral | Agreement and In Progress | Canada and Many |
| Canada Cod Fishing Restrictions | Canada and Unilateral | Disagreement and In Progress | Canada and Spain |
| UK-Spain Cod Fishing Dispute | EurCom and Multilateral | Disagreement and Complete | Spain and Many |
| Driftnet Fishing in Europe | Eurcom and Regional | Disagree and Allegation | Italy and Many |
| Japan Driftnet Fishing | UN and Multilateral | Agreement and Complete | Many and Japan |
| Tuna Dolphin Case | GATT and Multilateral | Disagreement and Complete | Mexico and USA |
| The Donut Hole | Bering Sea and Multilateral | Agreement and Complete | Many and Many |
| Squid Trade in Falklands | UK and Bilateral | Disagreement and Allegation | UK and China |
All of the above-referenced cases involve coastal states jealously guarding their fish stocks in hopes of conserving them, and other states "poaching" their stocks. They also highlight differences in addressing a problem that all nations agree exists namely, the depletion of fish stocks and the need to conserve them. While the EU and NAFO both set fishing quotas, for example, the EU's quotas are much less stringent than NAFO's. The lower quotas of the EU are a result of pressure the fishing industry and Member States put on the EU to lower quotas. The Tuna-Dolphin dispute between Mexico and the UniTED States is illustrative in that it demonstrates both the stark differences in national and international regulations, and that environmental policies are easily cast aside in the name of free trade.
Similarly, the UK's attempt to invoke its Merchant Shipping Act was interpreTED as protectionist by the EU and also highlights the apparent loss of sovereignty in international trade/environment disputes, albeit at the regional level. The Squid case demonstrates the use of environmental policies to achieve political ends. The blatant disregard of driftnet rules in the Driftnet Fishing in Europe case shows how little regard some nations still have for conservation or regulations when money is at stake. It also demonstrates how loathe regulators are to actually enforce regulations. The amiable resolution of the Donut case and Japan Driftnet Fishing case, however, attest to the growing multilateral recognition of fish stock depletion and the will to work together to conserve the fish stocks. The bilateral resolutions negotiaTED in the Turbot Loss and Canada, Canada Cod Fishing Restrictions and eventually in the Tuna Dolphin case also attest to a willingness to compromise in the name of conservation.
IV. Policy
ImplicationsThe nexus of trade and environment is still in its infancy and has been dealt with hesitantly. The emerging importance of environmental concerns led to the Earth Summit in Rio de Janiero organized by the UniTED Nations Commission for Environmental Development ( UNCED") held June 4-14, 1992. This gathering produced Agenda 21, which is intended as a blueprint for a sustainable future. It holds that national and international environmental policies should address the root causes of environmental degradation so as not to result in unjustified restrictions on trade. Trade and environment should be made mutually supportive. The UN Commission attempts to harmonize the GATT's provisions and regulations with the UNCED standards. It also attempts to include the World Trade Organization (WTO) in this "manifesto" in order to justify some of the rules and to seek some other necessary funding mechanisms. Although the Earth Summit attempTED to bring two contentious issues together (environmental protection and economic growth), and while governments affirmed the principle that free trade and environmental protection are mutually supportive goals, they failed to specify just how to make this principle a reality. The Earth Summit was a good start in the direction of sustainable development, but much progress needs to be made in the formulation of treaties and agreements that are consistent both in their substance and enforcement mechanisms.
For example, in 1995 Iceland, which relies on fish exports for more than half of its foreign exchange, rejecTED a recommended quota cut of 40%. It was projecTED that such a drastic cut would result in an unacceptable 4-5% decline in Iceland's gross national product. Instead, the government cut quotas by 27%. Eventually, however, Iceland found it had to enforce stricter quotas. By 1995, Iceland had cut its fishing quotas by 50% in its waters, but unregulaTED foreign fleets continued to fish off its exclusive economic zone, thus depleting its straddling fish stocks.(12) This, like the Canada Cod Fishing Restrictions case, demonstrates that even when a nation does act responsibly, it still has difficulty controlling the acts of foreign fleets in or near its waters, thus underscoring the need for regional and international treaties with uniform guidelines and strict enforcement mechanisms. Nations will have to work closely together to make and enforce regulations governing the conservation of fish stocks that are acceptable to all parties, and resist the temptation to heedlessly raid both their own waters and those of coastal states.
V. Further
InformationBrown, Lester A. Vital Signs. New York: W.W. Norton & Company, 1996.
French, Hilary F. Costly Tradeoffs: Reconciling Trade and the Environment. Worldwatch Institute: Washington D.C., 1993.
Hannah, Lincoln. "EU News in the Continental Press on Thursday, June 13." The Reuter European Community Report June 13, 1996.
Smith, Frank and Trevena, Claire. "The Rape of the Ocean." The Observer Leader April 2, 1995.
Swardson, Ann. "Fish Accord Could Save Many Species; EU-Canada Pact Puts Problem in Spotlight," The Washington Post April 18, 1995: 1.
Ashe, Christopher C. Driftnet Fishing in Europe. /projects/mandala/TED/DRIFTEC.htm
Benseler, James. Canada Cod Fishing Restrictions. /projects/mandala/TED/CANCOD.htm
Benseler, James. UK-Spain Cod Fishing Dispute./projects/mandala/TED/UKCOD.htm
Dogan, Nejat. The Donut Hole. /projects/mandala/TED/DONUT.htm
Jandl, Thomas. Turbot Loss and Canada. http://gurukul.ucl. american.edu/TED/TURBOT.htm
Joshi, Nina. Tuna Dolphin Case. http://gurukul.ucl. american.edu/TED/TUNA.htm
Krasnow, Jay. Squid Trade in Falklands. http://gurukul.ucl. american.edu/TED/SQUID.htm
Morioka, Takashi. Japan Driftnet Fishing. /projects/mandala/TED/DRIFTJAP.htm ENDNOTES
1. Frank Smith and Claire Trevena, "The Rape of the Ocean," The Observer Leader 2 April 1995: 1.
2. Lester R. Brown, et al., Vital Signs (New York: W.W. Norton & Company, 1996) 126.
3. Brown 127.
4. Lincoln Hannah, "EU News in the Continental Press on Thursday June 13," The Reuter European Community Report 13 June 1996.
5. Hilary F. French, Costly Tradeoffs: Reconciling Trade and the Environment (Washington, D.C.: Worldwatch Institute, March 1993) 50.
6. French 16.
7. French 16-17.
8. French 43.
9. French 44.
10. Ann Swardson, "Fish Accord Could Save Many Species; EU- Canada Pact Puts Problem in Spotlight," The Washington Post 18 April 1995: A14.
11. UN Chronicle, "Historic Agreement on High-Seas Fishing Adopted by UN Conference," UN Chronicle December 1995.
12. UN Chronicle, "Historic Agreement on High-Seas Fishing Adopted by UN Conference," UN Chronicle December 1995.