U.S. ratification of UNCLOS necessary to control overfishing
U.S. ratification of UNCLOS will boost efforts to manage fishing populations in multiple ways. First, UNCLOS provides a clear legal framework for resolving disputes between countries over fishing rights, as for example the disputes between the U.S. and Canada. Secondly, becoming a party to UNCLOS gives the U.S. Coast Guard more legal tools to enforce existing regulations within the U.S. EEZ. Finally, by aceeding to UNCLOS the U.S. will be able to better lead on cooperative solutions to the global problem of overfishing.
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Another sovereignty-related issue that the Convention addresses is conservation and pollution on the seas, a pressing concern given the widespread exploitation of the sea and its resources.43 Part XII of the Convention, entitled Protection and Preservation of the Marine Environment, imposes upon states the “obligation to protect and preserve the marine environment.”44 The Convention also includes detailed provisions that explicitly require state parties to take measures to prevent, reduce and control pollution.45 States are required to cooperate with global and regional efforts in combating pollution by setting standards, rules, and recommended practices, many of these through appropriate international organizations.46 Furthermore, the Convention requires states to take the affirmative step of implementing systems for monitoring and reporting the risks and effects of pollution to their marine environments.47
Conservation and pollution provisions are included in the 1966 Convention on Fishing and Conservation of the Living Resources of the High Seas, to which the United States is also a party.48 As mentioned previously, this convention permits high seas fishing while also requiring states take steps to conserve the seas’ living resources.49
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The Convention also maximizes legal certainty for United States sovereign rights over ocean resources in the largest EEZ in the world, as well as energy and mineral and other resources on our extended continental shelf. The Convention provides the mechanism to assure international recognition of additional United States sovereign rights on an extended continental shelf. Moreover, due to overfished and depleted fish populations, effective management of migratory fish stocks and fisheries will continue to be a contentious issue for the foreseeable future. The Convention is widely accepted as the legal framework under which all international fisheries are regulated and enforced. The Convention imposes responsibilities on the coastal states to manage their fishery resources responsibly and provides a process for resolving conflicts between competing users. The Coast Guard defends United States sovereign rights by protecting our precious ocean resources from poaching, unlawful incursion, and illegal exploitation. Joining the Convention places these sovereign rights on a firmer legal foundation, bolstering the Coast Guard’s continued ability to ensure our Nation’s sovereign rights are respected.
In particular, becoming a party to the Convention will give the Coast Guard greater leverage in our efforts to eliminate illegal, unreported, and unregulated fishing. American fishermen are currently abiding by standards contemplated by the Convention and further detailed in the related UN Fish Stocks Agreement. They are adversely affected by foreign fishermen who illegally harvest highly migratory fish stocks. In another anomalous situation, the United States is a party to the UN Fish Stocks Agreement, which is directly related to the legal regime of the Law of the Sea Convention, even though we have not joined the underlying Convention. As a party to the Convention, we would be in a stronger position to persuade other nations to abide by the UN Fish Stocks Agreement and other modern international standards of fisheries management and thus advance our Nation’s interests in this field.
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As national governments debate the merits of joining UNCLOS III, international conflicts over fishing rights continue to develop throughout the world. Of particular note are: 1) disputes in the Spratly Islands of southeast Asia; 2) negotiations between Japan and South Korea over the Islets of Takeshima; 3) negotiations between China and South Korea involving shared waters; and 4) conflicts over conservation practices between Canada, Spain, and the United States. These disputes illustrate some of the issues that need to be settled to solve the overfishing problem. In each instance, agreements are being worked out in accordance with UNCLOS III. Unfortunately, although UNCLOS III provides the framework to begin resolving these disputes, a great deal of uncertainty surrounding international fishing regulation continues.n185 In many instances who has the power to dictate fishing rights and territory remains unclear.n186 In some cases, fishing practices that lead to unhealthy depletion of fish stocks continue unchecked.n187 In other instances, temporary solutions are implemented, but the future still is unknown. Widespread acceptance of UNCLOS III would provide the necessary structure to resolve these tenuous situations.
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The effects of overfishing may be the most devastating in Canada.n221 As a result, Canada has made drastic decisions in an attempt to save the fish stocks. In the 1990s, the northern cod fishery off the Grand Banks near Canada collapsed.n222 Canada made the unpopular decision to close the fishery in an attempt to maintain sustainable fish stocks within its EEZ.
The decision focused attention on nations fishing the same stocks outside Canada's EEZ. The result was the socalled "turbot [cod] war," an open conflict with fishermen from outside Canada who were perceived to be contributing to the problems on the Grand Banks. In 1995, a Canadian vessel fired warning shots and impounded the "Estai," a Spanish fishing vessel operating on the Grand Banks off the coast of Newfoundland. In a discussion about the United States' ratification of UNCLOS III, U.S. Senator Claiborne Pell argued before the U.S. Senate that similar incidents could be avoided in the future if UNLCOS III gains widespread support:
Had Canada and Spain both been party to the Law of the Sea Convention, this dispute could have been settled without the firing of shots. Regrettably, such incidents are the result of the growing uncertainty that prevails with regard to high seas fisheries and will only be avoided if the Convention on the Law of the Sea becomes a widely recognized instrument on which ... to establish a lasting regime for those fisheries.
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In another instance, Canada sparred with the United States over fishing rights. In 1994, Canada developed a plan to levy a $1100 fee on United States fishing vessels that travel along the 650mile Inside Passage from Puget Sound, Oregon and Washington to Alaska.n231 Senator Pell argued:
The State Department concluded that this transit fee was inconsistent with international law, and particularly with the transit rights guaranteed to vessels under customary international law and the Law of the Sea Convention. Had the United States and Canada both ratified the Law of the Sea Convention ... The Canadians might have been more hesitant to take the steps they did. In any event, the full force of the convention and the international community could have been brought to bear for a prompt resolution of the dispute.n232
Thus, according to Senator Pell, UNCLOS III could help the United States resolve its international conflicts over fishing.
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UNCLOS III provisions played a key role in the resolution of a major conflict in the Central Bering Sea in 1994. n285 The problem arose in the mid1980s, when the vessels of several nations began to fish a stock of pollack in an area of the Central Bering Sea just outside the U.S. and Russian 200mile EEZs. n286 The fish stock was largely associated with the U.S. zone and its fisheries.n287 The international fishery grew quickly, with the annual harvest soon reaching 1.5 million metric tons or more.n288 American fishermen increasingly called on the U.S. government to control international fishing in the Central Bering Sea, also known as the "Bering Sea Donut Hole."n289 By 1991, negotiations began among the nations that used the fishery: Russia, Japan, South Korea, China, Taiwan, Poland, and the United States.n290 These nations debated over whether the United States and Russia had a special right to the stocks.n291 The result was the "Donut Hole Convention,"n292 which has been described as a "precautionary approach to stock management."n293 Ambassador Colson has argued that UNCLOS III did not hinder the Donut Hole agreement; in fact, "the Donut Hole Convention could not have been negotiated without the framework and foundation provided by the Law of the Sea Convention."n294 Among the requirements of the Donut Hole agreement is that fishing vessels must use realtime satellite positionfixing transmitters while in the Bering Sea so nations can ensure that vessels are there only to navigate to and from the fishing ground.n295 The agreement also provides for boarding and inspection of fishing vessels by any party, and it establishes procedures to "ensure that no fishing occurs in the Donut Hole except in accordance with sound conservation and management rules."n296 While the Donut Hole Convention was negotiated with UNCLOS III in mind,n297 according to Ambassador Colson, "the Law of the Sea Convention can help the Donut Hole Convention by providing an alternative enforcement mechanism to ensure than no vessel undertakes conduct in the Central Bering Sea contrary to the provisions of the Donut Hole Convention."n298 The dispute settlement provisions of UNCLOS III would enable the parties to "ensure enforcement of multilateral fishery conservation arrangements on the high seas ... The Law of the Sea dispute settlement option can act both as a deterrent and as a means to bring about final resolution should problems arise in the Donut Hole in the future."
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These agreements indicate the power that UNCLOS III has had over fishing law. Yet until major fishing nations such as the United States ratify the convention, it cannot reach its full potential. The United States will suffer if fisheries continue to decline. Although the United States played a major role in initiating the Convention in 1973, and despite backing from President Clinton and other officials, many predict the Senate to put up a tough fight before it approves the treaty if it ever does. Opposition in the United States is primarily focused on provisions involving deep seabed mining and navigation rights for naval and air forces. The United States historically has been particularly concerned about retaining its right of innocent passage for warships through international straits.
Until the United States becomes a party to the Convention, customary international law and other treaties will set U.S. rights and duties with respect to international fishing issues. The United States is already a party to several treaties by which it implements many of the convention's international fishing goals. A number of UNCLOS III's provisions have been incorporated into U.S. domestic law. The Magnuson Stevens Fisheries Conservation and Management Act of 1976 established the United States' fishing policies. "The original act gave the United States jurisdiction over fishing grounds within 200 miles of the American coastline." Reauthorized by Congress in 1997, the act now implements tough conservation provisions.
U.S. proponents of the Convention argue that the United States can only benefit from the UNCLOS III negotiations by ratifying the treaty. Specifically, the United States would be able to take advantage of the conservation and dispute settlement provisions, while also helping stabilize "the customary rules which states now argue do or do not exist." The United States' continued absence from the treaty may undermine U.S. power to influence the international law of the sea.
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Overfishing is a tremendous problem facing the world's oceans.n320 The problem is perpetuated by individual national conservation efforts.n321 Although aimed at curbing overfishing, these programs have little effect if they apply only to one nation. n322 Fish are a resource that knows no boundaries. A limit on fishing by one nation does nothing to stop overfishing by another nation that exploits the same fishery. It also can lead to international conflict, as is evidenced by the "cod war" between Iceland and the United Kingdom. Only a joint effort by the world's largest fishing nations can bring the problem under control.
UNCLOS III is not perfect. Still, it is the strongest comprehensive environmental law agreement ever created. Its provisions dealing with fisheries conservation and management stress cooperation and coordination. The Convention also provides a framework necessary to implement conservation and dispute settlement. These provisions are essential for the world to begin to solve the overfishing problem. For example, by legitimating the EEZ and other zones of control, the Convention actually encourages nations to work together. Nations must agree on boundaries and on conservation plans.
Widespread support of UNCLOS III is necessary to control overfishing. Even widespread support, however, is not enough if large fishing nations still do not adhere to the agreement. The United States and Canada have not yet ratified the convention. Without their support, the international agreement cannot be effective.
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Without venturing into the intricacies of how an RFMO for the Arctic Ocean might be established and operated, the point is that the United States, Russia, and the other Arctic states are familiar with the challenges of managing sustainable fisheries and the consequences of failing to act proactively. Furthermore, all eight Arctic states have ratified the Fish Stocks Agreement, a strong indication “that all eight states have already accepted the principles established by [UNCLOS] that includes the enforcement of regional fisheries agreements in the high seas.”92 In short, cooperation among the Arctic states, including Russia, seems more likely than conflict on fisheries issues. The real question may be whether those states allocate sufficient resources to the enforcement of whatever regime is put in place.
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Not all Arctic resources are buried in the continental shelf. In the United States, fisheries and the seafood industry account for $30 billion domesti- cally, $12 billion in exports, and employ more than 100,000.38 In the southern Arctic region (Bering Sea and Gulf of Alaska), they are leading employers and sustain the indigenous people.39 World-class fisheries are found in the Barents and Bering seas, the Central North Atlantic off Greenland and Iceland, and the Newfoundland and Labrador seas off the coast of northeastern Canada.40 Regulating and monitoring these stocks in the Arctic are critical economically and strategically. If not protected, the fisheries would be decimated by overfishing. The 110th Congress stated that ‘‘the United States should initiate international discussions and take necessary steps with other Arctic nations to negotiate an agreement or agreements for managing migratory, trans-boundary, and straddling fish stocks in the Arctic Ocean and establishing a new international fisheries management organization or organizations for the region.’’41
The United States remains in a holding pattern. The North Pacific Fishery Management Council voted to close the Arctic to commercial fishing until it can be conducted sustainably, a management mechanism is developed, and we can implement an ecosystem-based management policy for Arctic resources.42 At some point, the United States cannot maintain this policy unilaterally and must enforce an international regime through patrolling and monitor- ing foreign fishing and fish-processing vessels in the region.