Gillnet Fising Treaty (GILLNET)


CASE NUMBER: 110 CASE MNEMONIC: GILLNET CASE NAME: Gillnet Fishing Treaty A. IDENTIFICATION 1. The Issue The gillnet fishing method has proven to kill thousands of species who get caught in the netting, suffocate and die. It is a cheap and effective method of fishing though and many Asian countries have been using it for years. There have been various attempts to curtail the use of gillnet fishing and the issue was addressed at the ICCAT meeting in Madrid, Spain, 1993. The group unanimously supported the United Nations resolution that recommended a 50 percent drop in the use of gillnet fishing. 2. Description Gillnets, driftnets, and Purse Seine nets are intricate fishing devices used to catch large amounts of squid, tuna and salmon in a relatively short period of time (see TUNA Case). In addition to the intended catch, the nets entangle large quantities of fish and other marine life, called bycatch, which is thrown back into the sea with most of the animals dead or dying. It was around the 1950's that fisherman discovered that Yellowfin Tuna often swim below schools of dolphin. By encircling the dolphin herds with driftnets of Purse Seine nets, fishermen can haul in the tuna below; unfortunately along with the dolphin. The dolphins drown or suffocate before fishermen can release them from the net. It is estimated that more than 100,000 dolphins die in these driftnets every years. Driftnets are up to 30 miles in length and drop about 40 feet into deep waters. As fish swim into the nets, their gills become entangled in the mesh and they suffocate and die. Gillnets are smaller and are used in coastal waters, but produce similar results. It is estimated that 2,500 ships put out more than 50,000 miles of driftnets and gillnets every night devastating populations of dolphins, whales, seals, sea turtles and sea life. At a meeting of International Commission for the Conservation of Atlantic Tunas, held in Spain from November 8-12, 1993, released the following statement from the Draft Report of the Thirteenth Regular Meeting of ICCAT. "After spirited debate, particularly between the Commissioners of France and Spain, the Commission adopted a resolution, proposed by the U.S., which endorses the UN resolution and reaffirms the importance it attaches to compliance with it. It expresses ICCAT's concern about the potential negative impact of driftnet fishing and its intention to monitor its effects. It calls upon member nations to ensure that the global moratorium is fully implemented and to report to the Commission the regulatory measures taken in this respect. It encourages all members of the international community to take measures individually and collectively to prevent all large scale pelagic driftnet fishing." The United Nations resolution 44/225 called for a 50% reduction in driftnet fleets by June 30, 1992. It also called for a banning imports of fishing equipment, fishing products and fish from countries that chose not to enforce the U.N. ban on fishing fleets. The resolution also calls for a repeal of a "user fee" federal tax on boats over 16 feet long. As a follow-up to this U.N. resolution, the Commerce Department's National Oceanic and Atmospheric Administration (NOAA) submitted new rules on September 18, 1991 as a response to the Dolphin Protection Consumer Information Act of 1990. The most important aspect of this regulation states that "fish taken with driftnets on the high seas will be banned from sale in the United States after July 1, 1992." The new rules apply to the countries that import seafood products harvested by nations which engage in driftnet fishing. This act requires those nations who use drift nets to provide documents certifying that the products were not taken by drift nets in specified areas of the high seas. This regulation also establishes a new definition of what is considered to be a "drift net." It is considered to be a floating gillnet whose length exceeds 2.5 kilometers. Legislation to monitor the driftnet problem began as early as 1987, when Congress passed the Driftnet Impact monitoring, Assessment and Control Act. The goal of this act was to have the Department of Commerce and Secretary of State be required to negotiate observer or enforcement programs with nations operating such fisheries in the North Pacific.. Driftnets are made of a mono-filament nylon which is similar to material used on a fishing reel. Boats using driftnets sets eight to eleven driftnets a night, an hour or two before dark that hang about 30 feet into the water. They are about 30 miles long. Gillnet fishing is done on coastal waters and is a very old business found in the Orient. The term driftnet is used to encompass all high-seas gillnet fisheries. Estimates are that between 1200-1500 driftnet fishing vessels are used by the Japanese, South Koreans and Taiwanese. Driftnets were originally created by the Japanese and along with the South Koreans and Taiwanese, used driftnets mainly for squid, tuna and marlin. 3. Related Cases Keyword Clusters (1): Trade Product = FISH (2): Bio-geography = OCEAN (3): Environmental Problem = Biodiversity [BIODIV] 4. Draft Author: Michaelle Burstin 5. Discourse and Status: DISagreement and Allegation [ALLEGE] 6 Forum and Scope: ICCAT and REGION 7. Decision Breadth: ALL 8. Legal Standing: SUBlaw C. GEOGRAPHIC Clusters 9. Geographic Locations a. Geographic Domain: GLOBAL b. Geographic Site: GLOBAL c. Geographic Impact: GLOBAL 10. Sub-National Factors: NO 11. Type of Habitat: OCEAN D. TRADE Clusters 12. Type of Measure: Regulatory Ban [REGBAN] 13. Direct vs. Indirect Impacts: DIRect 14. Relation of Measure to Environmental Impact a. Directly related: YES FISH b. Indirectly related: NO c. Not related: NO d. Related to process: YES Species Loss Sea [SPLS] 15. Trade Product Identification: FISH 16. Economic Data The biggest impact of driftnet fishing is that they catch more than just their intended target. There are two categories of concern: (1) The high seas interception of salmon and steelhead trout of U.S. and Canadian origin. Under international law, the fish belong to the streams to which they originate and (2) the incidental taking of other species of fish, marine mammals and seabirds (whales, dolphins and northern fur seals) that may have an aesthetic or commercial value to the U.S. 17. Impact of Measure on Trade Competitiveness: HIGH The United States is calling for a 100 percent ban on the use of driftnet fishing. 18. Industry Sector: FOOD 19. Exporter and Importer: MANY and MANY E. ENVIRONMENT Clusters 20. Environmental Problem Type: Species Loss Sea [SPLS] Specifically targeted species include salmon, steel headed trout from U.S. and Canadian origin and air breathing dolphins. 21. Name, Type, and Diversity of Species Name: MANY Type: MANY Diversity: NA 22. Resource Impact and Effect: MEDium and SCALE It is difficult to know for sure but ranges for the destruction of wildlife and sea mammals exist, including: 75,000-875,000 seabirds, 20,000-200,000 metric tons of blue sharks and marine mammals which are estimated in the upwards of tens of thousands. It is difficult to get exact estimates because in order to do that, there needs to be a program where scientists and technicians aboard a sampling of commercial vessels. As of 1989, only two observers existed. 23. Urgency of Problem: HIGH and 100s of years One of the most important lessons these cases demonstrate is the need for an environmental supra-structure to protect against ecological abuse. The law of the sea is a still developing and very controversial area of international law (see COBALT case). A nation's livelihood could be threatened if their EEZ, territorial waters or contiguous zones are altered or limited. As a result, countries are taking a protectionist stand in regards to safeguarding the sea. Yet that doesn't mean that protecting species necessarily needs to be a long and drawn out process. One example of an effective international organization that has taken steps to solve environmental threats to species is the International Whaling Commission or IWC (see JWHALE and NWHALE cases). The goal of the IWC was to prevent over-harvesting which could lead to the eventual extinction of the species. It was originally created as a trade group in order to create a stable environment for whaling goods. But, because many conservation-minded individuals now prevail in the group, the commission has shifted its objective to the whaling itself. In 1971, The United States enacted the Pelly Amendment which provided for certification to the President by the Secretary of Commerce of any state that "diminishes the effectiveness" of a conservation program by violating IWC regulations (see SHRIMP case). Once certified, the President could impose sanctions against that country. Unfortunately, sanctions were rarely placed against violators so Congress enacted the Packwood-Magnuson Amendment in 1979 (see MAGNUSON case). This shifted the responsibility of placing sanctions from the President to the Secretary of State and made sanctions mandatory once a state was certified by the Secretary of Commerce. In April, 1988, President Reagan imposed sanctions against Japan for its refusal to go along with the IWC resolution regarding mink whales in the Southern Hemisphere. "Given the lack of any evidence that Japan is bringing its whaling activities into conformance with the recommendations of the IWC, I am directing the Secretary of State under the Packwood-Magnuson Amendment to withhold 100 percent of the fishing privileges that would otherwise be available to Japan in the U.S. Exclusive Economic Zone. Japan has requested the opportunity to fish for 3,000 metric tons of sea snails and 5,000 metric tons of Pacific Whiting. These requests will be denied. In addition, Japan will be barred from any future allocations of fishing privileges for any other species. ...These sanctions being imposed are the strongest possible under the Packwood-Magnuson Amendment." This decision demonstrated how effective an international organization can be in regulating and protecting endangered species. The Packwood-Magnuson Act was the basis for future agreements and amendments to protect the oceans. This agreement reflects the degree of interdependence between the world's countries. Robert Keohane and Joseph Nye, in their book, "Power and Interdependence," are supporters of the concept of neorealism and interdependence. Their book begins with a poignant examination of the world today, "We live in an era of interdependence. This vague phrase expresses a poorly understood but widespread feeling that the very nature of world politics is changing. The power of nations - the age-old touchstone of analysts and statesmen - has become more elusive: 'calculations of power are even more delicate and deceptive than in previous ages.' Henry Kissinger, though deeply rooted in the Classical tradition, has stated, 'that the traditional agenda of international affairs - the balance among major powers, the security of nations - no longer defines our perils or our possibilities...Now we are entering a new era. Old international patterns are crumbling; old slogans are uninstructive; old solutions are unavailing. The world has become interdependent in economics, communications and in human aspirations." Keohane and Nye devote section of Chapter 4 to the "Oceans Issue Area." They recognized that the most apparent transformation in international law is the way countries are treating the Oceans. Historically, the seas fell under the regime of res communis, which essentially means free use by all. "Nearly three-fourths of the earth's surface is ocean. For centuries people have used ocean space for two main purposes: fishing and navigation. The oceans have been one of the 'global commons' beyond the jurisdiction of any single state, somewhat like the common pastures in medieval villages that were open to all villagers to use. ...Until recent decades, ocean space and resources seemed so vast they could be treated in general as public good, which one could use without diminishing what was available to others." This rationale of the way states handled the oceans was true until technology entered the picture. Technological advances have created methods of fishing that have resulted in an abuse and exploitation of the oceans. "In recent decades, however, technology has increased mankind's ability to exploit oceans' space and resources, thus raising questions of scarcity and stimulating countries' efforts to widen the area under their jurisdiction in order to exclude other countries from their resources. In fisheries, for example, the number countries with fishing fleets has increased, and new techniques such as sonar fish-finding devices and factory ships, which process the fish at sea, have increased efficiency. As a result, the annual global fish catch rose from 20 million tons in the late 1940's to 70 million tons in the early 1970's, and several major species of fish were seriously depleted." Driftnet fishing is another example of a fishing technique that has challenged this notion of the seas being open for use by all. In fact, today, the concept of res communis is slowly fading. Instead there is a growing responsibility to protect our environment. In the 1970's the notion of a 'claim to ocean space' was held. This became the basis for the concept of the EEZ and was most clearly stated in the Montevido Declaration, " All nations have the right to claim as much of the sea and seabed near their coasts as they deem necessary to protect their actual and potential offshore wealth." The key word here is the term 'potential.' This leaves states much flexibility in determining what is considered to be their potential wealth. This gave each state the sovereign right to protect its resources, even if that meant extending national boundaries. This became the basis of the new 200 mile EEZ which was codified in UNCLOS III. It has become clear to nations that the world had entered a new era in territorial protection. ". . .whatever the prospects for a formal treaty eventually coming out of the prolonged United Nations Conference on the Law of the Sea, at least one of the major dimensions of the traditional free seas regime -narrow coastal jurisdiction - would never be the same again. Whether by international treaty or by unilateral decisions, the result of conference diplomacy in the third period was sure to be an extension of coastal jurisdiction to 200 miles, thus fencing off a third of the world's oceans." The concept of an EEZ, used by all countries in the world, definitely challenges the traditional notion that the seas were open to use by all. In fact, the EEZ actually partitions the oceans off and creates water boundaries that could threaten navigation and fishing rights if a state claims another state is traversing its EEZ. "To give you an appreciation of the substantial area that is included in the exclusive economic zones, some figures are useful. The 200-mile limit, if claimed by all coastal states, would enclose 36 percent of the world's total ocean area, or over 37.7 million square nautical miles. Moreover, this area contains 90 percent of the presently exploitable fishery stock,87 percent of known oil deposits and 10 percent of the seabed manganese nodules." What the EEZ provides is a clear example of the challenge facing economics and the environment. If a state claims rights to 200 miles beyond their coastal limits and chooses to over-fish a species, under whose jurisdiction does this fall? Does the global community have right to stop a country from exploiting its own resources? The concept of an EEZ has pushed states to take extreme measures to secure their rights to fishing and ocean resources. An excerpt from a story in the New York Times from January 4, 1988, is a good example of just what value a 200 mile EEZ has to certain countries, "Tokyo, Jan 3 - Japan always a bit self-conscious about its limited size, has taken a giant step to keep itself from shrinking. With an initial $75 million budget outlay approved last week, the Government hopes to prevent an insignificant dot of a Pacific Island, 1,300 miles southwest of Tokyo, from being swallowed up by the sea. Actually to call Okinotorishima an island is somewhat akin to describing a rowboat as a sea vessel - true but grandiose. This island has eroded so badly over the years that it now consists of two barren rocks, neither of them much bigger at high tide than a kingsize bed. But Okinotorishima, which means Offshore Bird Island, happens to be this country's southern most point. And if it disappears beneath the sullen Pacific, as it is most certain to do unless remedial action is taken, Japan will lose exclusive fishing and mineral rights up to 163,000 square miles of ocean. That, as Japanese officials are painfully aware, is an area bigger than Japan itself. Without Okinotorishima, Japan's exclusive economic zone, which extends 200 nautical miles in all directions from its coastline, would be pushed far back - to either Minami or Iwo Jima, an island nearly 400 miles to the northeast, or to Oki Daitojima, another island about the same distance to the northwest." The Exclusive Economic Zone is an important issue and states realize how vulnerable they can be if their EEZ is lost. For a country like Japan, who relies heavily on fishing for its survival, an alteration to its EEZ could have disastrous consequences. The EEZ is a new element in international law and is becoming an icon of this century's attempt at defining boundaries. The future will need cooperation and a surrendering of domestic sovereignty if nations are going to share the global commons and live in peace. It will be through a reliance on international law that states will find protection and security in the new global regime. "Potentially international law provides the most durable framework for undertaking cooperative action to uphold the diverse dimensions of the "global commons." But it is a framework that remains too much adapted to an earlier set of circumstances that no longer sufficiently addresses the demands of the present world and its probable future." Upon reviewing the literature discussing the challenges and changes occurring in the world and international law, it was the fundamentals of Hugo Grotius that seemed to offer some insight and guidance in shaping the framework of the future. Richard Falk, in his article, "The Groatian Quest," captures the essence of the challenges facing the world today and offers some insight by learning from one of the great thinkers of the past. Falk recognized Grotius' education and upbringing as being well grounded in Christianity. It is not Christianity that Falk is advocating in his article but the values that were apparent in Grotius' work. The Groatian quest is a goal the world should strive for, at least on an ideal level. There needs to not only be an awareness of the ecosystem but a feeling of responsibility to protect it. Richard Falk concludes: "In many respects Hugo Grotius was an exemplary visionary of the shadowland...It is probably not accidental then that he led such a difficult personal life, despite the triumphs of the precocious years...In Essence, Grotius was a person of deep conscience who was neither radical nor acquiescent, and who was deeply committed to leaving the world a better place than he found it. Grotius came to maturity at a time of religious and political strife, of ripening claims of absolute state sovereignty by the leading monarchs of Europe...It was the time also when feudal traditions were being displaced by statist tendencies and administrative capabilities that emphasized territoriality and the domestic centralization of both legitimate power authority and military power. What Grotius attempted, whether willingly or not, was to provide the foundation for a new normative order in inter-national society that acknowledged the realities of an emergent state system and yet remained faithful to the shared heritage of spiritual, moral and legal ideas that any Christian society could still be presumed to affirm as valid...The shadowland that Grotius explored rested on the idea that restraint and decency could be grounded in law despite the realities of the new age of statist diplomacy. Grotius system of mutual legal restraint was premised on the reality of an overarching Christian conscience. In effect, Grotius believed that by activating the Christian conscience of rulers, peaceful methods short of war could be promoted to resolve disputes between royal sovereigns. By drawing on rationality and natural law, Grotius encouraged European rulers of his day to reconcile their practical pursuits as statesmen with their spiritual and intellectual heritage. Without indulging in illusions, I believe the Groatian quest remains our best hope. If offers no easy solace, or spectacular outcomes. Yet the Groatian quest remains constructive in our situation, because it is normatively grounded and future oriented, synthesizes old and new, and cherishes continuities while welcoming discontinuities. Our political life is so bureaucratized that it is doubtful whether anyone who listens to the voice of conscience, or if her or she hears and heeds, could long remain influential. The Groatian quest should probably concentrate more on mobilizing the conscience of the people than on activating the conscience of their rulers. Whatever else, no venture into the future will succeed without anchors in our past..." 24. Substitutes: NO F. OTHER Factors 25. Culture: YES 26. Trans-border: NO 27. Rights: NO 28. Relevant Literature "About Face; Japan Curbs Its Drift Nets and Stops Ivory Imports." Time. October 2, 1989, 86. "...And An Alternative to Protect Fisheries," The New York Times. March 9, 1983. Section A, 22. "Ban on Japanese Fishing Left Standing By Justices," The New York Times. June 11, 1988. Section 1, 9. Chrystal, Chris. "Senators Seek Japanese Fishing Cutoff." United Press International. October 1, 1984. Financial Section. Coe, Jim and Joni H. Blackman. "An Expert Warns of the Dangers of Driftnets, Lethal Curtains That Reap Fish -- And Controversy -- By The Ton," People Magazine. May 15, 1989, 145. Dashefsky, H. Steven. "Environmental Literary Sample," Times Mirror 241/1. July, 1992, 52. "General Strike Shuts Down Salmon Fishing Region," United Press International. June 25, 1991. "Japan Warns News Zealand Against Action on Driftnetting." Xinhua General News Service. June 24, 1989. Koch, Eddie. "Environment: Green Seeks Global Ban on Gillnet Fishing." Interpress Service. July 21, 1990. MacLeod, Andrew. "U.S. Council Pushes To Cut Japanese Fishing Off Alaska." United Press International. September 28, 1984. McCarthy, Michael. "British Fisherman Defy Outcry Over 'Walls of Death.'" The Times. May 30, 1991. "NOAA Issues New Rules Banning Imports of Certain Fish Caught With Driftnets," International Trade Reporter. September 25, 1991. Norton, Dee. "Groups Urge Signing of Drift-Net Bill," The Seattle Times. October 24, 1992, 8. "South Pacific Nations, U.S. Disappointed Over Driftnet Meeting," Xinhua General News Service. June 28, 1989. "U.S. - Japanese Fishing Dispute Heats Up," United Press International. January 21, 1986. Financial Section. Webb, Craig. "U.S. Cuts Japanese Fishing Quotas," United Press International. May 29, 1987.

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