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I.
Case Background |
I. CASE BACKGROUND
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.
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
equal 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.
Continent: Atlantic
Region: North Atlantic
Country: Canada
II. Environment Aspects
III. Conflict Aspects
IV. Environment and Conflict Overlap
V. Related Information and Sources