TED Case Studies

Turbot Loss and Canada




          CASE NUMBER:         114  
          CASE MNEMONIC:      TURBOT
          CASE NAME:          Turbot Loss and Canada

A.   IDENTIFICATION

1.   The Issue

     The right of nations to exploit their coastal waters is well
established in customary law and formal treaties.  But only
recently have boundary-transcending issues taken the forefront in
international oceanic law.  The United Nations Convention on the
Law of the Sea (UNCLOS) is one of the broadest treaties ever
formulated.  It covers three subjects: (1) use of maritime
resources (both within territorial waters and on the high sea),
(2) freedom of innocent passage and overflight, and (3) maritime
research and conservation of ecosystems and species.  Issues of
contention include the spread of locally caused pollution and the
question whether a coastal nation has a right to demand
protection of migrating species important to coastal economies
even while these species are in international waters.  The
Spanish-Canadian turbot conflict in 1995 is the most recent
incident highlighting this issue.

2.   Description

     While the Law of the Sea has been widely and heatedly
debated for its implications on free passage rights and national
security implications, it went almost unnoticed that UNCLOS
"probably contains the most comprehensive and progressive
international environmental law," according to Vanderbilt law
professor Jonathan Charney.  Not only does the convention
address environmental issues, but it also could serve as a
prototype for other international treaties on environmental
protection and resource preservation. 

     Global demand for fish is on the rise.  In developing
countries, fish is the most important source of protein.  In Asia
alone, one billion people rely on fish as their primary source of
animal protein.  And with continuous demographic growth, the
demand for fish is steadily increasing. Yields are steady at
about 101 million tons per year worldwide.  But growing
populations depending on this limited bounty push the per capita
catch downward -- from 18.2 kilograms in 1993 to 18.0 in 1994. 

     Over the past 15 years, the total catch has been augmented
by the growing importance of aquaculture, which account for 14
million tons today -- versus close to nothing in 1980.  The total
catch in 1980 was 72 million tons, or 16.2 kilograms per capita. 
Hence the increase of non-aquaculture fishery yields over one-
and-half decades is 15 million tons, or 21 percent.  That is an
increase of less than a compounded 1.5 percent per annum.  
Aquaculture is, however, not an ever-expandable possibility. 
They divert water from rivers and aquifers, and are responsible
for pollution from high-nitrate runoffs.  While valuable projects
involving the proper and sustainable management of aquaculture
are ongoing under the sponsorship of World Bank, the U.N. Food
and Agriculture Organization (FAO) and other national and
international organizations, at present they do not serve the
lower income groups who suffer most from the decline of coastal
fishing.  These subsistence fishers cannot afford the capital
investment to enter the aquaculture business.

     In the developed nations, fish is now recognized as a
healthier protein source than meat, and demand has been on the
upswing steadily as well.  More than 70 percent of the word's
fisheries are fully exploited, in decline, seriously depleted or
under drastic limits to allow a recovery, a study by the FAO
says.  The catch in Mexico dropped 18 percent in the last four
years, and Japan, South Korea and Chile recorded declining yields
in 1993 (see JAPANSEA case).  Fish catch has fallen in all but
two of the world's 15 major fishing regions.

     The World Conservation Union classifies 3.5 percent of all
fish species as threatened, and 1.8 percent as endangered.
Particularly stocks of the major dietary species (cod, haddock,
tuna) have been decimated by fishing fleets.  In addition,
countries depending traditionally on their coastal fisheries
experience the hardest blows.  Particularly in Southeast Asia,
economic development has allowed some nations to modernize their
fishing fleets, while many still depend on their wind- or man-
powered boats to earn a living on a day-by-day basis.  Absent
conservation regulations, subsistence fishers are crowded out by
profit-making corporations. 

     "The Philippines is the epitome of what's happening in
Southeast Asia. Virtually all major fish stocks are overfished,"
writes the International Center for Living Aquatic Resources
Management (ICLARM).  The archipelago has a 34,600-kilometer-long
coastline and ranks 11th among 80 fish-producing countries, but
its catch-per-unit effort has fallen by 7 percent.

     Commercial fishers and trawlers are also going into
shallower waters, shunning greater depths because the bulk of
fish in tropical waters is above the 40 meter level.  This
exacerbates the overfishing problem in Southeast Asian waters. 
Mathews calls overfishing an infectious disease.  As long as the
global fleets have large over-capacities, unsustainable
exploitation can spread anywhere, almost overnight.  

     Spain's turbot fishing just outside Canada's Exclusive
Economic Zone (EEZ) is a case in point (see UKCOD and CANCOD
cases).  The Spanish-Canadian incident was caused by a drop in
the fishing quota from 60,000 to 27,000 tons.  Spanish fishers
claimed their livelihood was at stake, and they could not feed
their families with such a dramatic drop in fishing quota.  Yet
the numbers are misleading.  In fact, the catch grew from 4,000
tons to 60,000 in just five years and only began at all because
the cod, redfish and flounder before it had been fished out. 
Spanish boats began fishing so far from home mostly because of
fish stock declines in European waters.  

     In early 1995, Canadian warships seized Spanish fishing
vessels in international waters and confiscated illegal nets,
whose mesh size was so small that turbot too young to spawn would
get caught.  International regulations predating UNCLOS but
adopted into it decree that in order to guarantee the survival of
species, fish cannot be caught before reaching a certain spawning
age.

     While the Spanish authorities do not deny their fishers used
illegal nets, they insisted that the seizure of their ships was
a breach of international law, and the evidence so discovered
could not be used against them.  Some called Canada's actions the
equal of high seas piracy. 

     Under the provisions of the Law of the Sea, Canada can base
its actions on illegal fishing practices.  The Convention says
with regard to fishing in international waters that an allowable
catch has to be determined that would permit the maximum
sustainable yield as qualified by economic and environmental
factors.  Spain has been fishing with nets known to be harmful to
the sustainability of the fish population.  Specifically, UNCLOS
regulates "the introduction by man, directly or indirectly, of
substances or energy into the marine environment" deteriorating
the ecosystem, causing harm to humans, flora or fauna or creating
a hindrance for commercial activity in the future. 

     But UNCLOS strikes a balance between environmental and trade
concerns.  Coastal states may not exceed international standards
for foreign vessels, to prevent that multiple different standards
make international navigation impossible. 3. Related Cases

3.        Related Cases

     UKCOD case
     CANCOD case
     SALMON case
     LOBSTER case
     SQUID case
     SEACUKE case
     BLACKSEA case
     BALTIC case
     CASPAIN case
     DONUT case
     MEDIT case

     Keyword Clusters    

     (1): Trade Product            = FISH
     (2): Bio-geography            = OCEAN
     (3): Environmental Problem    = Species Loss Sea [SPLS]

4.   Draft Author: Thomas Jandl

B.   LEGAL Clusters

5.   Discourse and Status:  AGReement and INPROGress

     Negotiations of the treaty are complete, but not all U.N.
members have signed on, and many have not yet ratified the
treaty, so that the overall status can be described as in
progress.  At the United Nations, the number of signatories is
substantial, and opponents are few.  In the 184-member United
nations assembly, 121 nations last year voted for the latest
round of amendments, with seven abstentions -- by Colombia,
Nicaragua, Panama, Peru, Russia, Thailand and Venezuela -- and 56
delegations not participating (see Appendix B).

6.   Forum and Scope:  UN and MULTIlateral

     The legal venue of UNCLOS is the International Seabed
Authority, to be installed in Kingston, Jamaica, and the Tribunal
in Hamburg, Germany.  Both entities are branches of the United
Nations.

7.   Decision Breadth:  60 (Law of the Sea)

8.   Legal Standing: TREATY

     But the provisions for the EEZ and exploitation of
continental shelf areas belonging to multiple nations'
territories call for bi- or multilateral negotiations.  The
Seabed Authority or the Tribunal would only intervene by default,
when the involved parties can not find a solution and call on the
United Nations for arbitration.  This is the case in the turbot
dispute between Canada and Spain.  Canada towed the seized
illegal nets up the Hudson River to the U.N. headquarters.  If
UNCLOS were already fully functional, Canada would have to ship
proof to Hamburg for a decision in the case.

     Gwenda Matthews of the U.N. Division of Ocean Affairs and
Law of the Sea said there was no funding for the Tribunal as of
now.  The 60 nations that have so far ratified the treaty have
put in 60 percent of the proposed organization's budget.  Until
the Tribunal is established, countries can take their disputes to
the International Court of Justice or special arbitration
tribunals with expertise in ocean-related disputes.

C.   GEOGRAPHIC Clusters

9.   Geographic Locations

     a.   Geographic Domain : ATLANTic
     b.   Geographic Site   : Western Atlantic [WATL]
     c.   Geographic Impact : CANADA

10.  Sub-National Factors:  NO

     Environmental regulations for a country's subjects can be
more stringent than UNCLOS.  They can also be less so, if no
international waters are harmed.  Canada, for example, could
require its own fishing fleet to use nets with even larger mesh
size than prescribed by international law.  It could not force
the Spanish trawlers, however, to adhere to these more stringent
standards.

     On the other hand, if Canada were able to guarantee that
waste discharge from its fishing fleet does not affect
international waters, it could permit vessels within its waters
to discharge these waste products. 

     UNCLOS is a qualified law.  It specifies that every
signatory must take actions within the scope of its capabilities,
thus establishing some leeway for nations with lesser financial
or technological capabilities.

11.  Type of Habitat:  OCEAN

D.   TRADE Clusters

12.  Type of Measure:  Regulatory Standard [REGSTD]

13.  Direct vs. Indirect Impacts:  INDirect

     UNCLOS is a qualified regulation, allowing for different
levels of compliance, in accordance with a signatory's technical
and financial capabilities.  Furthermore, UNCLOS allows coastal
nations to apply higher levels of environmental protection to its
own citizens or companies operating under its flag.  A coastal
nation can also reduce levels of protection, if it can assure
that none of the negative consequences will reach international
waters.

14.  Relation of Measure to Environmental Impact

     a.  Directly Related     : YES  FISH
     b.  Indirectly Related   : NO
     c.  Not Related          : NO
     d.  Process Related      : YES  Species Loss Sea [SPLS]

15.  Trade Product Identification:  FISH

     The prohibition of dumping overboard anything but organic
waste, and not even that in a designated special area, where
damage is already significant.

16.  Economic Data

     More than 70 percent of the world's fisheries are fully
exploited, in decline, seriously depleted or under drastic limits
to allow a recovery, FAO says (see Appendix A).  Despite rising
demand and increasing prices, global fish catch has stagnated.
Trawlers in Thailand, Malaysia, the Philippines and Indonesia are
catching as little as one-fourth of what they used to net two
decades ago.        

     Although stocks are shrinking, governments invest an
estimated $50 billion of subsidies into a grossly overcapitalized
industry supporting a fishing industry which could not otherwise
stay afloat.  That is not only a problem of the industrialized
nations subsidizing their modern fleets which have grown with
demand but outstripped supplies.  The Chinese Xinhua new agency
reports that the Indonesian government has made a plan to procure
81,069 fishing vessels in the next five years.

     "And the FAO estimates that under sustainable
     management global fisheries could yield $15 billion to
     $30 billion more worth of fish each year. That's the
     cost of the catch-all-you-can mentality measured in
     pure waste." 

17.  Impact of Measure on Trade Competitiveness:  BAN

18.  Industry Sector:  FOOD

19.  Exporter and Importer:  CANADA and MANY

     Extended exclusive economic zones are necessary since only
a country with direct interest in preservation will take serious
and often costly steps to prevent excessive exploitation. 
Spain's interest in the long-term survival of the Canadian
continental shelf region is apparently not strong enough for the
Spanish government to take decisive action against Spanish
fishing lobbies. An agreement in 1995 may help solve the problem.

     There is an interesting side effect to the enlargement of
EEZs, however. The extension adds millions of square miles to
many nations' territory, which they have to police if they want
to enforce UNCLOS.  The trade in naval vessels, particularly fast
patrol boats, has already picked up over the last few years. 
Indonesia recently bought the entire East German navy (no longer
needed after unification). With a missile gunboat costing roughly
$30,000 (1982 figures) per day to operate, every boat devours $11
million per year to operate. 

E.   ENVIRONMENT Clusters


20.  Environmental Problem Type:  Species Loss Sea [SPLS]

21.  Name, Type, and Diversity of Species 

          Name:          Fish
          Type:          Animal/Fish/Bony
          Diversity:     OCEAN

22.  Impact and Effect:  LOW and PRODuct

23.  Urgency and Lifetime:  MEDIUM and 1-3 years

24.  Substitutes:  LIKE products

     In the areas addressed by UNCLOS, substituting for the
problem-goods is not really a high priority.  Lower fishing
quotas will send prices higher, and the law of supply and demand
will do its work, particularly when subsidies are phased out at
the same time.  Substitute jobs will have to be found for the
displaced fishers, but that falls outside the realm of UNCLOS.

VI.  OTHER Factors

25.  Culture:  YES

26.  Trans-Border:  NO

27.  Rights:  NO

28.  Relevant Literature

Brown, Lester.  Vital Signs 1995, World Watch Institute, W.W.
     Norton, New York, 1995
Charney, Jonathan.  "The Marine Environment and the 1982
     United Nations Convention on the Law of the Sea," The
     International Lawyer, Winter, 1994.
Greenwire, "Seas: Pollution, Overfishing Plague Marine
     Resources," January 26, 1995
Mathews, Jessica.  "The Law of the Sea Degenerates Into the
     Law of the Jungle," Star Tribune, April 17, 1995, A11
Son, Johanna.  "Fishing South-East Asia: Oceans of Woes
     Plague Region's Waters," Inter Press Service, March 28,
     1995
Tangsubkul, Phiphat.  "ASEAN and the Law of the Sea,"
     Institute of Southeast Asian Studies, Singapore, 1982
Xinhua News Agency.  "Indonesia to Procure 81,000 Fishing
     Ships In Five Years," November 25, 1994
(Also see the U.N. publication "Law of the Sea, A Select
Bibliography," with 80 pages of titles and documents.)

                          Appendix A
          Environmental Problems in the World's Seas

   An overview over the situation of the seas, by Greenwire.
      BLACK SEA: Fertilizer and human waste have overloaded the
Black Sea with nutrients, feeding thick mats of algae and
bacteria that consume oxygen needed by other marine life.  Toxic
pollution and overfishing also share the blame for plummeting
fish populations.  Most fishermen and tourists say the sea is
already dead.
      YELLOW SEA: Partly because rapid industrial growth on
China's coasts has occurred with few or no pollution control
measures, heavy-metal levels there may be among the highest in
the world.  Other problems include smog-bound cities and air
pollution from coal-burning plants and dumping by coastal
industries.  North Korea, South Korea, China and Russia have
resorted to force to defend their declining fisheries.
      BALTIC SEA: Organochlorines from Swedish and Finnish
pulp and paper mills are linked to the near-extinction of the
Baltic's sea eagles, seals and minks.  Fossil-fuel burning has
helped boost the region's metal concentrations five-fold over the
last 50 years.
      CASPIAN SEA: Hydropower and irrigation dams have lowered
water levels on the Volga River, concentrating the wastes that
are dumped into the Caspian Sea.  Catches of pike and perch have
dropped 96 percent over the past 30 years, and the Caspian's most
valued product -- caviar, or sturgeon's eggs -- has been
virtually wiped out.
      BERING SEA: Marine life thrives in Bering Sea waters   
that are relatively free of pollution and habitat destruction. 
But since the 1960s, Russian, American, Japanese, Korean and
Chinese vessels have competed over pollack in international
waters.  Mostly because of overfishing, catches crashed from
nearly 1.5 million metric tons in 1989 to 11,000 tons in 1992.
      SOUTH CHINA SEA: Virtually all of the problems   
afflicting seas worldwide are exacerbated in the South China Sea
by political conflict.  China, Vietnam, Indonesia, the 
Philippines, Taiwan and the United States all have an interest in
the sea because of its fisheries, oil fields and militarily
strategic location.
      MEDITERRANEAN SEA: A major shipping route, the
Mediterranean in the 1980s absorbed one-fifth of the world's oil
spills.  Naturally low levels of rainfall and species diversity
leave the Mediterranean with little leeway to absorb pollution
from spills, marine dumping and urban and coastal discharges. 
But the situation arguably is not as bad as it might be, due to
joint anti-pollution efforts by coastal countries.

                          Appendix B
     Signatories of the Law of the Sea (ratified in bold)

Algeria                  Angola         Antigua & Barbados  
Argentina                Australia      Austria             
The Bahamas              Bahrain        Barbados            
Belgium                  Belize         Bolivia
Bosnia                   Botswana       Brazil              
Burkina                  Cameroon       Canada
Cape Verde               China          Comoros
Cook Islands             Costa Rica     Cote d'Ivoire
Croatia                  Cuba           Cyprus
Czech Republic           Denmark        Djibouti
Egypt                    European Com.  Yugoslavia (former)
Fiji                     Finland        France
The Gambia               Germany        Ghana
Greece                   Grenada        Guinea
Guinea-Bissau            Guyana         Honduras
Iceland                  India          Indonesia
Iraq                     Ireland        Italy
Jamaica                  Japan          Kenya
S. Korea                 Kuwait         Laos
Lebanon                  Luxembourg     Macedonia
Malaysia                 Maldives       Mali
Malta                    Marshall Isl.  Mauritania
Mauritius                Mexico         Micronesia
Monaco                   Mongolia       Morocco
Namibia                  Netherlands    New Zealand
Nigeria                  Oman           Pakistan
Paraguay                 Philippines    Poland
Portugal                 St. Kitts      St. Lucia
St. Vincent              Sao Tome       Senegal
Seychelles               Sierra Leone   Singapore
Slovakia                 Slovenia       Somalia
South Africa             Spain          Sri Lanka
Sudan                    Swaziland      Sweden
Switzerland              Tanzania       Togo
Trinidad & Tobago        Tunisia        Uganda
United Kingdom           United States  Uruguay
Vanuatu                  Vietnam        Yemen
Zaire                    Zambia         Zimbabwe

     Source: State Dept., June 12, 1995


                          References




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