Lifelines: Canada's East Coast Fisheries

Law Of The Sea – The Exclusive Economic Zone

B. Applebaum, BA LLM


Problems Remaining

26. The time period for this paper ends in 1982 with the adoption and opening for signature, and for ratification, of UNCLOS. While the world community welcomed UNCLOS as a monumental new code for the governance of international relations in all matters related to the oceans there were, nevertheless, two major issues generally understood at the time as not being adequately dealt with in the Convention and likely to require further extensive negotiation in appropriate settings.

27. One was the matter of exploration and exploitation of deep seabed mineral resources. UNCLOS provided a comprehensive regime for this purpose which satisfied many States. However this regime was unacceptable to most of the developed States, including the U.S. and several West European States. These were the States that had most of the financial and technical resources to engage, in the foreseeable future, in deep seabed exploration and exploitation. These States, led by the U.S., were adamant that the legal regime for the seabed established in UNCLOS did not include provisions which would adequately provide for, protect and compensate the private enterprises capable of exploring and exploiting the resources and that in these circumstances the exploitation of these resources would not, to any significant degree, take place if the developed States were bound by the Convention as it stood. Negotiations on this issue would, therefore, continue, though in a non-crisis atmosphere since deep seabed exploitation was not seen as economically feasible for many years to come.

28. This non-crisis atmosphere did not apply to the other major outstanding issue, involving high seas fisheries on stocks extending seaward from inside EEZs. As indicated previously in this paper the EEZ, while adequate to encompass many major coastally-related fish stocks of the world, left significant stocks of this type exposed to the open access rules governing high seas fisheries since these latter stocks extended, either as straddling or highly migratory stocks, seaward of the EEZ limits. This problem which, in the 1970s, had worried primarily Canada and Argentina, now worried more, but still a relatively small number of coastal States, including Canada, Argentina, Chile, Norway and New Zealand.

29. While the vulnerability of straddling and highly migratory fish stocks to high seas fisheries was understood to some extent during the negotiation of UNCLOS, the degree of this vulnerability was not appreciated until the EEZ had been in place for awhile, and coastal State fishing fleets had progressively replaced the fleets of other States within the established EEZs. Before the EEZ, most fisheries for coastally-related species had been concentrated in areas well within 200 nautical miles, where the fish were highly concentrated and there were nearby amenities including ports close by for repairs and supplies, crew relief and refuge from storms. When fleets from far away were, over a few years, excluded from their normal fishing grounds inside 200 nautical miles and thereby forced to try to find new places to fish, they found that in areas where there were straddling and highly migratory fish stocks they could make quite satisfactory catches outside 200 nautical miles, catching fish from the same stocks they used to fish inside 200. Combined with the increasing catches from these same stocks by coastal States inside their EEZs the resulting catch levels would, over the ensuing years, result in serious overfishing of major stocks, more stock declines, more international conflict, and more international efforts to find solutions to these problems.

30. Canada's problem with regard to straddling stocks grew steadily during the 1980s and 1990s. Catches by foreign fleets in the waters adjacent Canada's east coast EEZ developed to the extent that international agreement was reached in the 1990s between most of the States fishing in these adjacent waters to place almost all the traditionally-fished stocks under moratoriums. A conflict between Canada and the European Union over one particular stock developed, by the mid-1990s, to the point where a European Union vessel was arrested by the Canadian authorities on the high seas. The general problem of straddling and highly migratory fish stocks was sufficiently widespread that the world community, responding to a Canadian initiative, supported a new United Nations Conference to try to resolve the problem. The result was a new United Nations Convention on straddling and highly migratory fish stocks, adopted in 1995,[21] and currently awaiting the 30 ratifications required to bring it into force.

31. Fisheries problems of a somewhat different nature either continued following the adoption of UNCLOS or grew worse, in more limited settings. Salmon were protected from high seas fisheries by the provisions of UNCLOS, but were not protected by these provisions from the competitive pressures of fishermen of different coastal States as the fish migrated through the waters of various States on their normal routes headed for their rivers of origin to spawn. As regards EEZs, quite apart from the problem of straddling and highly migratory fish stocks EEZs did not, after the initial years in which coastal States established controls over fisheries in their waters, have effects corresponding with the optimism with which they were widely greeted.[22] In some cases the pressures by foreign fleets to maximize their catches were replaced by the pressures by coastal State fleets to maximize theirs defeating, in one way or another, the efforts of managers to ensure conservation. In others, coastal States had varieties of other problems as well. It would be reasonable to assume that these are problems of implementation rather than problems inherent in the legal regime of the EEZ, which provides a structure within which coastal State fisheries managers can, with the requisite political authority, will, and energy, produce the benefits that the creators of the EEZ envisaged.

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