TED Analysis Cases

Throughout the 1980s, Japan embarked on a massive fishing campaign utilizing driftnets. Although driftnets have been common for centuries, their use in this time period is unprecedented. Many of the driftnets employed during the 1980s were as long as 40 miles, essentially catching all marine life that encountered it. Nations were also employing a greater number of vessels to fetch a continuously declining population of fish, adding additional pressure to marine populations. Pertinent to this particular case is the fact that many of these roaming vessels ventured far from their home ports in search of fish. The Japanese and other Asian nations, during the 1980s, sent numerous ships into the North Pacific in search of squid and tuna that was plentiful in the area. However, after several years of these countries employing increasingly large nets and virtual flotillas, outrage at the perceived drain of ocean resources began to mount. This outrage was exacerbated as evidence mounted that the Japanese and Taiwanese were guilty of illegally fishing inside the Exclusive Economic Zone of the United States and other countries, or waiting just outside the 200 mile boundary for migratory fish to pass whereupon they were ensnared.

In 1987, the United States completed several bilateral agreements with Japan to monitor the fish populations and fishing vessels in the disputed North Pacific region. Eventually, in response to allegations against Japan and the general evidence of such acts by other nations around the world, the United Nations passed two resolutions condemning and outlawing such fishing practices. In 1989, the United Nations General Assembly adopted a Driftnet Resolution (44/225) which called for "a conditional moratorium on high-seas driftnet fishing by June 30, 1992." It is also called for "cooperation among coastal states and relevant national and regional organization in the collection and sharing of statistically sound scientific data in order to assess the impact of driftnet fishing methods on living marine resources." Later in 1991, UN adopted another Driftnet Resolution (46/215) which called for "a global moratorium on large-scale high-seas driftnet fishing effective December 31, 1992. In accordance with UN Resolution 46/215, Japan has ceased large-scale ocean-going driftnet fishing, including those in North Pacific Ocean.

A unique characteristic of the Mediterranean ocean is its lack of water circulation. Similar to a room with little ventilation, studies have shown that the Med. essentially has only the Strait of Gibraltar to circulate its on water with that of the larger Atlantic. The full recycling process is estimated to take eighty years. Several decades ago, this probably constituted little reason for concern. Yet today, with large human populations on the Mediterranean coastal areas, water pollution is becoming an increasing concern. Much of these human pressure in the region stems from the business of tourism. Tourism on the Med. has produced several consequences for the health of the ocean ecosystem. First, In an effort to sustain and attract ever increasing amounts tourists, countries along the Med. have conducted monumental construction projects to provide the infrastructure for the lucrative tourist business. Usually, pollution entering the ocean is the result of these coastal development schemes. Secondly, sizable quantities of sewage and other human derived pollution from the 280 million plus tourists that visit the Mediterranean coast each year ends up in the sea; sometimes resulting in swaths of garbage and sewage that extend for miles. According to a study by the League for the Environment, tourism increases 6 to 10 percent annually in the region.

Since the early 1980s, several initiatives have been instituted aimed at estimating the toll exacted on the Med. by continued pollution and at regulating not only the development of the coastal regions, but also to control the amount of pollution that enters the sea. One initiative was put forth in 1987 by the European Investment Bank and the World Bank. This result was called the Environmental Program for the Mediterranean (EPM), and was meant to address the environmental policy, institutional, and investment-related needs of the Mediterranean countries. The EPM program intended to stop and reverse the in the coastal region. The Blue Plan is probably the most thorough step taken thus far to stop the degradation of the Mediterranean. The Plan was proposed in 1988 as part of the reorientation of the UN sponsored Mediterranean Action Plan of 1975 and focused on encouraging and assisting those who hope to manage the development of the Mediterranean basin from now until the year 2025 in an environmentally safe manner. Most of the countries with coastal borders on the Med. have taken part in the Blue Plan.

The Magnuson Fisheries Conservation Act of 1976 gave the US federal government the authority to regulate fishing activities between 3 and 200 miles from the coast. Today, under the Law of the Sea Convention, this area is known as the Exclusive Economic Zone (EEZ).Each nation with coastlines possesses such a zone The act was designed by Congress to regulate fishing activity in the zone in order to ensure the stability of the US fishing industry and to protect the marine resources from illegal foreign acquisition. Almost since its inception, the effectiveness of the act was challenged by a number of environmental groups and fishing interests, including Greenpeace. The claims put forth are two- fold. First, it is argued that a double standard exists within the committees created by the Magnuson Act, in terms of which countries the body wishes to seek legal action against. Second, committees have been organized to distribute fishing rights in an equitable manner. Yet, a large majority of the committee members are involved in or receive funding from private fishing industry members.

Much of the criticism appears aptly applied. the Magnuson Act has been only nominally effective in meeting the goal of protecting the American fishing industry and keeping foreign vessels away from the U.S. coastline. The other problem of threatened and reduced populations of fish in U.S. waters has not been alleviated, and some experts charge that it has worsened.

This case involves the events that unfolded in 1995, when Canadian warships seized Spainish fishing vessels that had been operating just outside Canada’s Exclusive Economic Zone. The Spainish vessels were fishing Turbot prior to their entry into the EEZ. What makes this case notalbe is that the Canadians claimed the recent UN Convention on the Law of the Sea provided legal precedent for their actions. Once aboard the boats, Canadian officials discovered that the Spanish were employing illegal nets that did not allow for the escape of immature fish. This is expressly forbidden by the UN Convention.

Spain’s response did not deny the use of illegal nets, but they argued that the UN Convention did not sanction the “piracy” of another nation’s ships. This case represents one of the more recent examples where the law applied by these international regimes is put to the test in a high-profile dispute between nations.

In 1995, the UN General Assembly passed a resolution that called on nations to cease in the use of large driftnets when fishing. Although the U.N.'s moratorium carries no penalty, it is aimed at inspiring national regulations that do. European Union regulations regarding driftnet fishing do require European Union members to refrain from all driftnet fishing within the territorial waters of EU states, and the international driftnet standard, adopted by the European Union, among others, forbids the use of driftnets that are more than 2.5 miles long on the high seas ( beyond the EEZ’s of the EU). Nonetheless, the censuring of an EU member states fishing fleet requires either a unanimous vote of censure by the Commission and Council of Ministers or a prolonged legal battle within the Union's European Court of Justice. Still, with the threat of impending regulation, there is evidence to suggest that several nations are still allowing fishing vessels to operate illegally in the Mediterranean. With such cumbersome legal proceedings, no cases have been successfully brought against any member, even when documented proof may indeed exist.

The nets in question are constructed of fine-meshed plastic, which usually extend 30 feet under water. These nets tend to entangle and fatally injure all marine life in their path, including whales, porpoises, seals and other marine mammals, many of which are protected by international agreements. Environmental organizations such ass Greenpeace argue that these nets also sweep up a disproportionate number of fish and their young, leaving fewer fish for fishermen using conventional equipment.

The Italians appear particularly culpable because of their persistent use of 6 to 7 mile long driftnets in the Med. These nets are not only larger than accepted international standards, but because the Med. is a smaller body of water, vessels can cover larger portions of the ocean, adding to the pressure on fish stocks.

At a February 8, 1992 meeting of members of the Commonwealth of Independent States (CIS) in Moscow, participants signed an agreement on Cooperation in the Area of Ecology. Participating states recognized that borders between governments do not coincide with natural ecological and basin boundaries, adding that economic activity in one state must not cause damage to the environment, the public's quality of life, or economic activity in neighboring states. Following up on this meeting, the environment ministers from seven CIS states (Ukraine was absent) met in Minsk in July, 1992 where they signed a protocol that essentially established a fund for the rehabilitation and cleanup of the environment. The ministers committed their states to make yearly contributions to the fund at the rate of 0.05 percent of their gross national product. The participating states were Armenia, Belarus, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan and Uzbekistan. Although acknowledgment of the crisis and a measure of cooperation has been established in reducing pollution emission and the waste cleanup, it will be many years before results of such efforts will be evident.

Ukrainian waterways, of which many lead into the Black Sea, are in desperate trouble. In 1988, 2,634 million cubic meters of contaminated water were released into the rivers of Ukraine, of which 516 million cubic meters were completely untreated and 2,118 million cubic meters insufficiently treated. Sulfides and chlorates made up the bulk of the dangerous contaminants. More than five million tons of salt are dumped into Ukraine's rivers every ear; scientists have found that salinity in water leads to genetic defects and causes severe illness, such as tumors and heart disease. So polluted are Ukraine's rivers that most of them no longer freeze in winter. Of particular concern are the Dnipro and Dniester Rivers, which are heavily polluted by the 105 industrial sites situated along the river banks. The huge amounts of toxic pollution emanating from these sites eventually finds its way into the Black Sea, which is fed by these two rivers.

Contamination from the Crimean region in Southern Ukraine, combined with an inflow of river pollution, has left the Black Sea and the surrounding area an ecological disaster. The greatest peril facing the Black Sea is eutrophication, which is the disappearance of dissolved oxygen without which fish die, algae blossom and harmful bacteria multiply rapidly. The level of pollution from hydrogen sulfide, the substance extremely damaging to water quality, also rose by two-thirds in the Black Sea from 1935 to 1985.

With the extension of the 200 mile Exclusive Economic Zones (EEZ) under the UN Convention on the Law of the Sea, nations have a greater ability to control the ocean resources near their territory. However, Much of the ocean in still considered the “high Sea”, where no one nations has sovereignty. Vessels will often congregate in these areas in an effort to catch fish moving through these open areas of the ocean. Unfortunately, the fish caught on the high seas are often migrating to or from other areas that are within nations’ EEZ.

This is exactly the problem that has arisen in the Central Bering Sea. Since the extension of ocean jurisdiction to 200 nautical miles by both the United States and Russia, the Central Bering Sea is completely surrounded by the two nations' exclusive economic zones (EEZ). This area thus remains high seas and is termed "Donut Hole". Large-scale fishing of in the Hole by the United States, Russia, Japan, South Korea, China, and Poland resulted in the depletion of pollock stock and endangered other species, including sea lion, seal, and seabirds. In response, a convention was signed on June 16, 1994 between the states mentioned above with regard to the regulation of fishing in the Donut Hole.

Coral has many uses ranging from medicinal purposes to food supplies to protecting coastlines from storms and erosion. However, this rich resource is increasing becoming destroyed to the point where many reefs are considered endangered habitats. It is estimated that the coral reefs of ninety-three countries have been subject to damage and destruction by human beings. Thus, reducing the effectiveness of this resource for human uses and as natural habitat for sea life.

Covering only 0.17 percent of the ocean floor, coral provides a home for one quarter of all marine species. Analogous to the tropical rain forests of the ocean, coral reefs are the home for one-tenth of all fish caught for human consumption. Unfortunately, humans have destroyed between five and ten percent of the world's coral reefs and this trend will continue unless major cooperative international efforts are formulated to address the issue. There have been a few international efforts to stop the degradation and begin to conserve their precious resource. In fact, no multinational institution has actually passed a binding treaty on the issue. Nevertheless, observation of the mounting problem is conducted by, among others, the Convention on the International Trade in Endangered Species (CITES) and the UN Environment Programme (UNEP) Some believes the solution is in controlling tourism to a certain degree and putting some of the money tourism makes back into the conservation programs.

The Baltic Sea was considered healthy as late as the 1950s. Since then, the Baltic has seriously deteriorated due to waste from expanding industry and large urban areas, fertilizers used in agriculture, and the development of wetland areas. Recent steps to clean up the Baltic have been made possible with the end of the Soviet Union. The 14 countries of the catchment area are now on schedule to carry out a comprehensive program to improve the environment in and around the Baltic Sea.

The most significant of these step is the Baltic Sea Joint Comprehensive Environment Action Program. This program is not a treaty, but an agreement between interested parties about basic standards that should be adhered to in the continued industrial development and general utilization and clean up of the Baltic sea area. The program also sets out guidelines for national and local efforts at cleaning up rivers that lead into the Baltic. The countries directly effected are the nine which line the Baltic coast: Sweden, Finland, Estonia, Latvia, Lithuania, Russia, Poland, Germany, and Denmark. The catchment areas (those areas that affect the sea indirectly) include Norway, Belarus, Ukraine, the Czech Republic, and the Slovak Republic.

The following is a table highlighting the features of each case study. The table is usefull for comparative purposes, as it displays the distinctive features of each case study in terms of "Forum and Scope", "Discourse and Stature", and "Measure".

Case Name	Forum and Scope	Discourse and Status	Measure
Turbot Loss and Canada	UN and Multilateral	Agreement and In Progress	Trade and Regulation
Baltic Pollution	Former USSR and Multilateral	Agreement and In Progress	Agreement
Coral Trade	UN/CITES and Mutilateral	Disagreement and Incomplete	Trade and Regulation
Driftnet Fishing in Europe	Eurcom and Regional	Disagree and Allegation	Regulation
Japan Driftnet Fishing	UN and Multilateral	Agreement and Complete	Trade and Regulation
Black Sea Waste	CIS and Multilateral	Agreement and Complete	Regulation
Magnuson Fishing Act	US and Unilateral	Disagreement and Complete	Trade and Regulation
The Donut Hole	Bering Sea and Multilateral	Agreement and Complete	Regulation
Med. Pollution and Tourism	Med. Sea and Multilateral	Agreement and Incomplete	Regulation

IV. Comparison and Contrast

When examining these cases, one can begin to see a pattern of reaction (as opposed to pro-action) to environmental concerns. Nations rarely come together until a particular hazard has become so great to particular interests that reaction is necessitated. In each case, one country or a group of countries attempts to implement regulations aimed at protecting ocean resources. Fortunately, these resources appear to be resilient enough to endure the world’s tardy responses.

Obviously, the DRIFTEU case is a clear example of an attempt to create a regional regime aimed at protecting European fish and fishing rights. The Community Fishing License Regime, as it is called can be considered a nominal success. All of the 15 EU members have signed the agreement and it does provide some measure of recourse against those that contravene the treaty. However, unlike the DRIFTJAP case, which essentially ended the Japanese use of enormous driftnets on the high seas, the EU treaty has been continuously circumvented by among others, Spain and Italy. And instead of creating a unified condemnation of illegal practices, the regime has created a forum where countries such as France can argue not only against Italy for breaking the treaty, but against the general provisions of the treaty, which they feel are overly austere on French fishermen.

The BALTIC SEA, BLACK SEA, and MEDITERRANEAN cases are further examples of nations’ reactive management efforts to environmental damage that has already manifest and which continues. These three bodies of water are unique for several reasons. They all are relatively landlocked which only nominal levels of new water circulation. They are major arteries for international oil and industrial shipping. And historically, these bodies of water have burgeoned with high levels of uncontrolled pollution. This cases are the respective regions’ efforts at controlling the amount of development along the shores of these waters and stemming the amounts of pollution that enters them. Of the three, the Baltic Sea case appears to offer the most hope for success. The 14 countries in the Baltic region have signed onto the Comprehensive Environmental Action Program and appear to be responsive to the recommendations of the Helinski Commission’s analysis of the problem. The program is designed not only to clean up existing pollution, but to rise environmental awareness and education. Yet, it may not simply be the nature of the regime that has afforded success for this case. Rather, the stability of the regions governments and their ability to address these issues may provide more of the formula for success.

In contrast, the Mediterranean and the Black Sea cases appear to be marked by their lack of substantive progress. In the Mediterranean, Italy does not have the political will to control the development and subsequent pollution of its coastline. Secondly, the shear mass of cargo ships and fishing vessels that pass through the Med. and pollute its waters make regional control and regulation extremely problematic. Although implemented in 1987, the Environmental Program for the Mediterranean has been largely unsuccessful in curbing pollution and regulating fish stock exploitation. Italy and France have formulated pollution controlling regulation, but unlike France, Italy has yet to implement these regulations with any vigor.

The Black Sea appears to be experiencing a similar fate to that of the Med. Members of the Commonwealth of Independent States have signed an ecological agreement, the regional political and economic troubles have rendered meaningful changes and regulation enforcement almost negligible. Ukraine, specifically, has lacked the will to address its role in the pollution of the Black Sea even though it suffered disproportionally from the destructive ecological policies (or lack of) of the former Soviet Union.

Even in cases such as the Magnuson Act (which is a unilateral effort at fishing regulation), success can remain problematic. The efforts of the US Congress at regulating fishing rights and instituting quotas on fish catches not only alienated many fishing communities, but was arguably ineffective in protecting several varieties of fish from over exploitation. It also proved to be a haven in which large commercial interests lobbied Congress for favorable treatment. Although the Magnuson Act can be viewed as an initial attempt at controlling resource allocation and protecting ocean species, many of the problems it addressed and subsequently created, have yet to be sufficiently resolved.

V. Policy Implications

There appear to be several policy implications that can be discerned from examining these cases; three are discussed below. First of all, the effectiveness of any international regime is often highly dependent on the relative stability of the nations involved and the political capital available to support any agreement. Countries that perceive a clear need to adhere to and enforce ocean control regimes will do so (such as in the Baltic sea case). Where the political will is less focused (as appears to be the case with Italy in several regulatory regimes) results will be less forthcoming. In other words, results are not necessarily dependent upon the nature of the control regime. Rather, effectiveness can be predicted with more accuracy by examining the political ability of nations involved to implement such measures robustly. Of course, when cooperation and political will is high, the quality of the resultant regime may tend to be higher as well. For years, efforts aimed at reducing Mediterranean pollution and implementing fishing regulatory policies were mired in the lackluster political efficiency of the constituent nations involved.

Second, in a world where trade and environment issues are often subordinate to and often circumvented by parochial national agendas and/or powerful interest groups, a powerful third party appears to be needed. Such a body indeed exists in the WTO. In the most recent Uruguay round of the GATT, many of the issues surrounding ocean resources were ignored due to their contentious nature. Yet, assuming the WTO does not turn out to be the Invader of national sovereignty that some countries fear, it could prove an excellent body for regulation and enforcement of international fishing guidelines. Evidenced by the Dolphin Tuna case, the WTO has already exhibited an ability to resolve contentious issues concerning the ocean resources and trade.

Thirdly, with jurisdiction over numerous areas of trade, regulation of international ocean resources could be backed with substantive penalties for illegal actions. Under the present system, each new control regime must create its own set of penalty guidelines. This inevitably opens the door for disagreement among potential participants. But, as nations with trading interests continue to take part in the WTO community, with its existing trade regimes and penalty arrangements, much of the framework will already be in place. All that is needed is for a general consensus on the need to protect the oceans resources from exploitation and pollution, and the realization that these issues can directly impact trade effectiveness.

In conclusion, granting the WTO jurisdiction over aspects of international waters only answers half the question. What about unilateral protection of resources within a nation's EEZ?. Although the Magnuson Act was in many ways a failure in its inability to address core problems and its susceptibility to interest groups, a potential answer may lie in how the high degree of regulatory control the Act sought. As with many government regulations, there is little symmetry with key trade issues. Instead, regulatory measures such as Magnuson often run against economic concerns, obfuscating the initial intentions of the act. Powerful interest groups vying for influence, and national economic concerns (such as the viability of the US fishing industry) begin to exert pressure on Congress and those who control the regulation. In short, Regulations are needed that focus on the protection of resources, yet at the same time, are in accordance with well thought out economic plans for sustainability. Such a scheme may appear idealistic. Yet, if those who formulate policy would be more aware of the resources they which wish to protect in addition to national/global economic issues, such fidelity could be possible.

VI. Further Information

Sarina, Carl. "Where Have All the Fishes Gone? Overfishing," National Academy of Sciences, Issues in Science and Technology, March 22, 1994.

Worldwatch Institute. State of the World, 1993. New York: W.W. Norton and Company, Inc., 1993.

Smith, Frank and Trevena, Claire. "The Rape of the Ocean." The Observer Leader April 2, 1995.

Interesting web sites

Underwater Photography Website

Coastal Ocean Program 1996 Factsheets

Fisheries and Oceans Action Plan

Law of the Sea and Ocean Affairs

Greenpeace Homepage