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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