ICE Case Studies: CANFISH

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Case Number: 62

Case Mnemonic: CANFISH

Case Name: Canada and Spain Fishing Dispute


1. Abstract

The right of nations to exploit their coastal waters is well established in customary law and formal treaties. But only recently have boundary-transcending issues taken the forefront in international oceanic law. The United Nations Convention on the Law of the Sea (UNCLOS) is one of the broadest treaties ever formulated. It covers three subjects: (1) use of maritime resources (both within territorial waters and on the high sea), (2) freedom of innocent passage and overflight, and (3) maritime research and conservation of ecosystems and species. Issues of contention include the spread of locally caused pollution and the question whether a coastal nation has a right to demand protection of migrating species important to coastal economies even while these species are in international waters. The Spanish-Canadian turbot conflict in 1995 is the most recent incident highlighting this issue.

2. Description

While the Law of the Sea has been widely and heatedly debated for its implications on free passage rights and national security implications, it went almost unnoticed that UNCLOS "probably contains the most comprehensive and progressive international environmental law," according to Vanderbilt law professor Jonathan Charney. Not only does the convention address environmental issues, but it also could serve as a prototype for other international treaties on environmental protection and resource preservation.

Global demand for fish is on the rise. In developing countries, fish is the most important source of protein. In Asia alone, one billion people rely on fish as their primary source of animal protein. And with continuous demographic growth, the demand for fish is steadily increasing. Yields are steady at about 101 million tons per year worldwide. But growing populations depending on this limited bounty push the per capita catch downward -- from 18.2 kilograms in 1993 to 18.0 in 1994.

Over the past 15 years, the total catch has been augmented by the growing importance of aquaculture, which account for 14 million tons today -- versus close to nothing in 1980. The total catch in 1980 was 72 million tons, or 16.2 kilograms per capita. Hence the increase of non-aquaculture fishery yields over one-and-half decades is 15 million tons, or 21 percent. That is an increase of less than a compounded 1.5 percent per annum.

Aquaculture is, however, not an ever-expandable possibility. They divert water from rivers and aquifers, and are responsible for pollution from high-nitrate runoffs. While valuable projects involving the proper and sustainable management of aquaculture are ongoing under the sponsorship of World Bank, the U.N. Food and Agriculture Organization (FAO) and other national and international organizations, at present they do not serve the lower income groups who suffer most from the decline of coastal fishing. These subsistence fishers cannot afford the capital investment to enter the aquaculture business.

In the developed nations, fish is now recognized as a healthier protein source than meat, and demand has been on the upswing steadily as well. More than 70 percent of the word's fisheries are fully exploited, in decline, seriously depleted or under drastic limits to allow a recovery, a study by the FAO says. The catch in Mexico dropped 18 percent in the last four years, and Japan, South Korea and Chile recorded declining yields in 1993 (see JAPANSEA case). Fish catch has fallen in all but two of the world's 15 major fishing regions.

The World Conservation Union classifies 3.5 percent of all fish species as threatened, and 1.8 percent as endangered. Particularly stocks of the major dietary species (cod, haddock, tuna) have been decimated by fishing fleets. In addition, countries depending traditionally on their coastal fisheries experience the hardest blows. Particularly in Southeast Asia, economic development has allowed some nations to modernize their fishing fleets, while many still depend on their wind- or man-powered boats to earn a living on a day-by-day basis. Absent conservation regulations, subsistence fishers are crowded out by profit-making corporations.

"The Philippines is the epitome of what's happening in Southeast Asia. Virtually all major fish stocks are overfished," writes the International Center for Living Aquatic Resources Management (ICLARM). The archipelago has a 34,600-kilometer-long coastline and ranks 11th among 80 fish-producing countries, but its catch-per-unit effort has fallen by 7 percent.

Commercial fishers and trawlers are also going into shallower waters, shunning greater depths because the bulk of fish in tropical waters is above the 40 meter level. This exacerbates the overfishing problem in Southeast Asian waters. Mathews calls overfishing an infectious disease. As long as the global fleets have large over-capacities, unsustainable exploitation can spread anywhere, almost overnight.

Spain's turbot fishing just outside Canada's Exclusive Economic Zone (EEZ) is a case in point (see UKCOD and CANCOD cases). The Spanish-Canadian incident was caused by a drop in the fishing quota from 60,000 to 27,000 tons. Spanish fishers claimed their livelihood was at stake, and they could not feed their families with such a dramatic drop in fishing quota. Yet the numbers are misleading. In fact, the catch grew from 4,000 tons to 60,000 in just five years and only began at all because the cod, redfish and flounder before it had been fished out. Spanish boats began fishing so far from home mostly because of fish stock declines in European waters.

In early 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. International regulations predating UNCLOS but adopted into it decree that in order to guarantee the survival of species, fish cannot be caught before reaching a certain spawning age.

While the Spanish authorities do not deny their fishers used illegal nets, they insisted that the seizure of their ships was a breach of international law, and the evidence so discovered could not be used against them. Some called Canada's actions the equivalent of high seas piracy.

Under the provisions of the Law of the Sea, Canada can base its actions on illegal fishing practices. The Convention says with regard to fishing in international waters that an allowable catch has to be determined that would permit the maximum sustainable yield as qualified by economic and environmental factors. Spain has been fishing with nets known to be harmful to the sustainability of the fish population. Specifically, UNCLOS regulates "the introduction by man, directly or indirectly, of substances or energy into the marine environment" deteriorating the ecosystem, causing harm to humans, flora or fauna or creating a hindrance for commercial activity in the future.

But UNCLOS strikes a balance between environmental and trade concerns. Coastal states may not exceed international standards for foreign vessels, to prevent that multiple different standards make international navigation impossible.

3. Duration: 1995 - now

4. Location

Continent: North America

Region: East North America

Country: Canada

5. Actors: Canada and Spain

More than 70 percent of the world's fisheries are fully exploited, in decline, seriously depleted or under drastic limits to allow a recovery, FAO says (see Appendix A). Despite rising demand and increasing prices, global fish catch has stagnated. Trawlers in Thailand, Malaysia, the Philippines and Indonesia are catching as little as one-fourth of what they used to net two decades ago.

Although stocks are shrinking, governments invest an estimated $50 billion of subsidies into a grossly overcapitalized industry supporting a fishing industry which could not otherwise stay afloat. That is not only a problem of the industrialized nations subsidizing their modern fleets which have grown with demand but outstripped supplies. The Chinese Xinhua new agency reports that the Indonesian government has made a plan to procure 81,069 fishing vessels in the next five years.

"And the FAO estimates that under sustainable management global fisheries could yield $15 billion to $30 billion more worth of fish each year. That's the cost of the catch-all-you-can mentality measured in pure waste."

II. Environment Aspects

6. Type of Environmental Problem: Species Loss Fish

Environmental regulations for a country's subjects can be more stringent than UNCLOS. They can also be less so, if no international waters are harmed. Canada, for example, could require its own fishing fleet to use nets with even larger mesh size than prescribed by international law. It could not force the Spanish trawlers, however, to adhere to these more stringent standards.

On the other hand, if Canada were able to guarantee that waste discharge from its fishing fleet does not affect international waters, it could permit vessels within its waters to discharge these waste products.

UNCLOS is a qualified law. It specifies that every signatory must take actions within the scope of its capabilities, thus establishing some leeway for nations with lesser financial or technological capabilities.

7. Type of Habitat: Ocean

EEZ provisions and multi-national continental shelf exploitation call for bi-or multilateral negotiations. The Seabed Authority or the Tribunal would only intervene by default, when the involved parties can not find a solution and call on the United Nations for arbitration. This is the case in the turbot dispute between Canada and Spain. Canada towed the seized illegal nets up the Hudson River to the U.N. headquarters. If UNCLOS were already fully functional, Canada would have to ship proof to Hamburg for a decision in the case.

Gwenda Matthews of the U.N. Division of Ocean Affairs and Law of the Sea said there was no funding for the Tribunal as of now. The 60 nations that have so far ratified the treaty have put in 60 percent of the proposed organization's budget. Until the Tribunal is established, countries can take their disputes to the International Court of Justice or special arbitration tribunals with expertise in ocean-related disputes.

8. Act and Harm Sites: Atlantic Ocean and Canada

III. Conflict Aspects

9. Type of Conflict: War

Extended exclusive economic zones are necessary since only a country with direct interest in preservation will take serious and often costly steps to prevent excessive exploitation. Spain's interest in the long-term survival of the Canadian continental shelf region is apparently not strong enough for the Spanish government to take decisive action against Spanish fishing lobbies. An agreement in 1995 may help solve the problem.

There is an interesting side effect to the enlargement of EEZs, however. The extension adds millions of square miles to many nations' territory, which they have to police if they want to enforce UNCLOS. The trade in naval vessels, particularly fast patrol boats, has already picked up over the last few years. Indonesia recently bought the entire East German navy (no longer needed after unification). With a missile gunboat costing roughly $30,000 (1982 figures) per day to operate, every boat devours $11 million per year to operate.

10. Level of Conflict: Warthreat

11. Fatality Level of Dispute: 0

IV. Environment and Conflict Overlap

12. Environment-Conflict Link and Dynamics: Direct

Causal Diagram

13. Level of Strategic Interest: Bilateral

14. Outcome of Dispute: Compromise

IV. Related Information and Sources

15. Related ICE Cases

  1. CODWAR case
  2. ALASKA case
  3. FALK case
  4. SPRATLY case

16. Relevant Websites and Literature

Brown, Lester. Vital Signs 1995, World Watch Institute, W.W. Norton, New York, 1995.

Charney, Jonathan. "The Marine Environment and the 1982 United Nations Convention on the Law of the Sea," The International Lawyer, Winter, 1994.

Greenwire, "Seas: Pollution, Overfishing Plague Marine Resources," January 26, 1995.

Mathews, Jessica. "The Law of the Sea Degenerates Into the Law of the Jungle," Star Tribune, April 17, 1995, A11.

Son, Johanna. "Fishing South-East Asia: Oceans of Woes Plague Region's Waters," Inter Press Service, March 28, 1995

Tangsubkul, Phiphat. "ASEAN and the Law of the Sea," Institute of Southeast Asian Studies, Singapore, 1982.

Xinhua News Agency. "Indonesia to Procure 81,000 Fishing Ships In Five Years," November 25, 1994. (Also see the U.N. publication "Law of the Sea, A Select Bibliography," with 80 pages of titles and documents.)

November, 1997