"Freedom of the high seas" is a principle considered by a few to mean that the high seas are res nullius or "without law" and beyond the jurisdiction of any nation State except that of the flag state. Res nullius is an antiquated concept. In fact, customary and conventional international law indicate that the high seas and its resources are subject to res communis or the "law of the commons". Numerous treaties, including the United Nations Law of the Sea Convention (UNCLOS), restrict the use of the global ocean commons to that which is "reasonable" and does not infringe on the rights of others. "Freedom of fishing" for example, is subject to a whole host of conditions, indicative that the world community considers high seas fishing resources to be common property resources. (Endnote 1.)

UNCLOS, Customary International Law, and States' Practice

The 1982 United Nations Law of the Sea Convention (UNCLOS), with the exception of Part 11, is generally considered to be a codification of customary international law. It will go into force with respect to the ratifying States, on November 1994. UNCLOS requires nation States to take conservation measures to protect the living resources of the high seas, (articles 116, 117, 118, 119, 120), to co-operate and enter into negotiations with "States whose nationals exploit identical living resources, or different living resources in the same area," (article 118); "to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors," (article 119); and to conserve and manage marine mammals in the high seas (article 120). UNCLOS also subjects the freedom to fish on the high seas to "treaty obligations" (article 116 (a)) and "the rights and duties as well as the interests of coastal States" as provided for in provisions dealing with straddling stocks (article 63(2)), highly migratory species (article 64), marine mammals (article 65), anadromous stocks (article 66) and catadromous species (article 67). In order to claim a right to fish on the high seas a State must fulfill the conditions specified. If those conditions are not met, there is no "freedom of fishing", no right to harvest the resources of the global commons. (Endnote 2.) (See Hewison (1993) for further discussion as to the legal status of large-scale high seas driftnet fishing under UNCLOS.)

By the fall of 1991, several nations had already taken action to ban or strictly regulate driftnet fishing in waters under their jurisdiction, including America Samoa, Australia, Canada, the Cook Islands, the Federated States of Micronesia, Fiji, French Polynesia, Guam, Japan, New Zealand, Norway, Papua New Guinea, Peru, the Republic of China, the Republic of Korea, the Republic of the Marshall Islands, the Republic of South Africa, Tonga, Trinidad and Tobago, Tristan da Cunha, the U.S.S.R., the United States, and Vanuatu. Some States also prohibit their nationals from engaging in driftnet fishing on the high seas and prohibit foreign driftnet vessels from using their ports except in an emergency. Japan prohibited its large scale driftnet fleets from fishing west of 170 deg W to avoid having it compete with its own pole and line and jig fleets.

In addition, several regional organizations of States have sought to prohibit pelagic driftnet fishing. In July 1989, the South Pacific Forum adopted the Tarawa Declaration that called on Japan and Taiwan to immediately abandon their driftnet operations in the South Pacific (Tarawa Declaration 1989). In September 1989, the Joint Assembly of the Associated States in Africa, the Caribbean, and the Pacific (ACP) and the European Economic Community (EEC) members adopted a resolution urging all members States to ban driftnet tuna fishing in their own waters. In October 1989, the Commonwealth Heads of Government (CHOGM) meeting adopted the Langkawi Declaration on the Environment, which committed member States to discourage and restrict non-sustainable fisheries and to seek to ban tangle net and pelagic driftnet fishing. In November 1989, the Organization of Eastern Caribbean States (OECS) adopted the Castries Declaration that requires member States to prevent the use of indiscriminate fishing methods in their EEZS and seeks to establish a regional regime in the Lesser Antilles region that would outlaw the use of driftnets by commercial fishing vessels. In November 1989, the Commission for the Conservation of Antarctic Marine Living Resources confirmed an understanding that no gillnets currently were being used in the Southern Ocean, nor was their use planned by members of the Commission.

In November 1989, the Convention for the Prohibition of Fishing with Long Drift Nets in the South Pacific was opened for signature at Wellington, New Zealand (Wellington Convention 1989). The Wellington Convention requires each party to prohibit its nationals and vessels documented under its laws from fishing with driftnets within the convention area (article 3(1)(a)). Each party must also undertake measures consistent with international law against other driftnet fishing activities within the area, including the transhipment of driftnet catches (article 3(1)(b). Each party may also take measures, if consistent with international law, to prohibit the landing of driftnet catches within its territory, to prohibit the processing of driftnet catches in facilities under its jurisdiction, to prohibit the importation of any fish or fish product caught using a driftnet, and/or to restrict port access and port servicing facilities for driftnet vessels (article 3(2)) The Forum Fisheries Agency is charged with responsibility for collecting, preparing, and disseminating information on driftnet fishing activities in the Convention area (article 6).

Two protocols accompany the Convention: parties to Protocol I, which is open to those countries that fish in the South Pacific region, agree to prevent their nationals and vessels from fishing with driftnets in the convention area. Parties to Protocol II, which is open to all countries in the Pacific Rim, are required not to assist or encourage the used of driftnets in the Convention area and are also obligated to prohibit the use of driftnets in all areas under their fishery jurisdiction and to prohibit the transshipment of driftnet catches within areas under their jurisdiction. Fifteen South Pacific States signed the Convention, which went into force May 17, 1991. In 1992, the United States, Kiribati and Australia ratified the Convention; the United States also ratified Protocol I and Canada and Chili signed Protocol II. New Zealand, a sponsor of UN resolutions 44/225, 45/197 and 46/215, is the depositary of the Convention. In 1991, both New Zealand (Driftnet Prohibition Act) and Australia (Australian Fisheries Management Act of 1991) passed legislation that gave effect to the Wellington Convention. In May 1992, a Treaty on Fisheries Surveillance and Law Enforcement in the South Pacific Regions to enforce the Wellington Convention was completed at the 22nd Forum Fisheries Committee meeting in Niue and signed by the twelve member states of the South Pacific Forum and Palau.

United Nations General Assembly Resolutions
U.N. Resolution 44/225

On 22 December 1989, the General Assembly of the United Nations expressed alarm at the over exploitation of living marine resources of the high seas by driftnets and the likelihood that driftnet fishing would have an adverse impact on the marine resources of the exclusive economic zones of adjacent coastal States. It unanimously adopted Resolution 44/225 recommending that all members of the United Nations agree to the following measures:

(a) Moratoria on all large-scale pelagic driftnet fishing on the high seas by 30 June 1992, with the understanding that such a measure will not be imposed in a region or, if implemented, can be lifted, should effective conservation and management measures be taken based upon statistically sound analysis to be jointly made by concerned parties of the international community with an interest in the fishery resources of the region, to prevent the unacceptable impact of such fishing practices on that region and to ensure the conservation of the living marine resources of that region;

(b) Immediate action to reduce progressively large-scale pelagic driftnet fishing activities in the South Pacific region leading to the cessation of such activities by 1 July 1991, as an interim measure, until appropriate conservation and management arrangements for South Pacific albacore tuna resources are entered into by the parties concerned;

(c) Immediate cessation of further expansion of large-scale pelagic driftnet fishing on the high seas of the North Pacific and all the other high seas outside the Pacific Ocean, with the understanding that this measure will be reviewed subject to the conditions in paragraph 4 (a) of the present resolution; (see (a) above)

In July 1990, the International Whaling Commission adopted a resolution in support of UNGA Resolution 44/225. On 31 July - 1 August 1990 the heads of government of the South Pacific Forum Nations reaffirmed their opposition to large-scale pelagic driftnetting and endorsed the Wellington Convention. In September 1990, the International Conference on the Conservation and Management of the Living Resources of the High Seas, attended by representatives of 15 States endorsed UNGA Resolution 44/225. Also in September 1990, the Fisheries Commission of the Organization for Economic Co-operation and Development (OECD) supported the implementation of the U.N. resolution. On 31 October 1990 the South Pacific Conference adopted a resolution condemning driftnet fishing in the South Pacific region. In December 1990 the United Nations General Assembly passed resolution 45/197 reaffirming resolution 44/225 and called for its full implementation by all members of the international community.
U.N. Resolution 46/215

On 20 December 1991, the U.N. General Assembly agreed to a non-binding resolution (UNGA No. 46/215) that called on the international community to implement resolutions 44/225 and 45/197 by, inter alia, taking the following actions: (a) Beginning on 1 January 1992, reduce fishing effort in existing large-scale pelagic high seas drift-net fisheries by, inter alia, reducing the number of vessels involved, the length of the nets and the area of operation, so as to achieve, by 30 June 1992, a 50 per cent reduction in fishing effort;

(b) Continue to ensure that the areas of operation of large-scale pelagic high seas drift-net fishing are not expanded and, beginning on 1 January 1992, are further reduced in accordance with paragraph 3 (a) of the present resolution;

(c) Ensure that a global moratorium on all large-scale pelagic drift-net fishing is fully implemented on the high seas of the world's oceans and seas, including enclosed seas and semi-enclosed seas, by 31 December 1992.

The Reponse to the U.N. Driftnet Moratorium

Subsequent to the initiation of the U.N. driftnet moratorium, several states reported that they were concerned that the practice of reflagging to avoid legitimate management controls was emerging as a serious problem in a number of high seas fisheries around the world (UN Secretary-General's Report 1992). The matter of illegal fishing practices by vessels flying flags of convenience was discussed at length at the United Nations' conference on straddling and highly migratory stocks in the summer of 1993 and resulted in the adoption by the Food and Agricultural Organization (FAO) of a draft convention entitled the "Code of Conduct for Responsible Fishing". In February 1994, the FAO Conference adopted the "Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas" to control reflagging of high seas fishing vessels. Under the Agreement, parties must take those measures necessary to ensure that their flag vessels do not engage in any activity that undermines the effectiveness of "international conservation and management measures," including measures adopted under agreements to which the flag state is not a party. (Endnote ) The Agreement covers all high seas fishing vessels, not just those that have been reflagged, and forms an integral part of the proposed code (Kimball 1993).

On 25 June 1993, the Food and Agriculture Organization of the United Nations (FAO) reported that the General Fisheries Council for the Mediterranean (GFCM) Committee on Fisheries Management was concerned about the transfer of driftnet vessels to States not bound by EEC regulation 245/92 and that the use of large-scale driftnets was continuing in the Mediterranean, primarily by Italian vessels. However, the FAO concluded that since 1992, there had been a significant decline in the use of large-scale driftnets in accordance with UN resolution 46/215 (UN Secretary-General's Report 1993). The North-West Atlantic Fisheries Organization (NAFO) reported that the UN resolutions concerning large-scale pelagic driftnet fishing were endorsed by its members and that large-scale pelagic driftnet fishing was not being practiced by the contracting parties of NAFO "in the Convention area" (UN Secretary-General's Report 1993). The International Council for the Exploration of the Sea (ICES) reported that according to ICES member delegates, there was no use of large-scale pelagic driftnets in the North Atlantic area. The International Baltic Sea Fishery Commission noted that UN resolution 46/415 did not apply to the Baltic Sea.

The South Pacific States' Response

The Forum Fisheries Agency (FFA) confirmed that it had received no reports of driftnet fishing in the South Pacific region during 1992 and 1993. On 16-18 December 1991, the FFA convened a Fourth Consultation on Arrangements for South Pacific Albacore Fisheries Management, in accordance with Article 8 of the Wellington Convention. The Conference was attended by all FFA member states, as well as Taiwan, France, Japan, the Republic of Korea, the United States, and the South Pacific Commission, but little progress was made in the development of a cooperative management arrangement.

The South American States' Response

In November 1991, the Latin American Organization for Fisheries Development (OLDEPESCA) adopted resolution No. 076-CM prohibiting the use of driftnets (UN Secretary-General's Report 1992). In 1993, Ecuador announced that it would not grant high seas driftnet fishing licenses to any vessel, foreign or domestic, nor would it permit vessels equipped with driftnet gear to enter Ecuador waters except for repairs, unscheduled port calls or innocent passage (UN Secretary-General's Report 1993). Venezuela issued a resolution banning the use of large-scale driftnets by its vessels in both national and international waters. Uruguay and Argentina have also prohibited the use of driftnets in waters under their jurisdiction.

The United States' Response

The United States' Driftnet Act Amendments of 1990 (section 107, Public Law 101-627) incorporated and expanded the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (Public Law 100-220), implemented the U.N. moratorium, supported South Pacific efforts, and directed that work continue on negotiations to obtain a permanent ban on destructive fishing practices. As of 1 July 1991, producers of fish or fish products caught with driftnets within the South Pacific Convention area and producers of tuna caught with driftnets anywhere could no longer sell those products in the United States. After 30 June 1992, the ban would apply to all fish products caught anywhere with driftnets longer than 2.5 km. Driftnetting nations that export seafood to the U.S. are required to provide documents certifying that the products were not taken with driftnets.

The United States also extended until 31 December 1992 its 1991 enforcement, regulatory and information-gathering agreements for the high seas squid and large-mesh driftnet fisheries of Japan, Taiwan and the Republic of Korea in the North Pacific Ocean. The agreements restricted the time and area of high seas driftnet fishing vessel operations, limited the number of vessels that could participate in the fishery, provided for the transmission of catch and effort data to the United States, and allowed for cooperative high seas enforcement activities.

In 1991, in response to the failure of Taiwan and South Korea, as flag States, to enforce their agreements, the U.S. government moved to levy trade sanctions against the two States. By October 1991, both houses of Congress passed legislation in some form that required the administration to block imports of fish products, fishing gear and nets from countries that use driftnets or that harbor vessels using driftnets after 30 June 1992. If those sanctions are not effective, the proposed law requires the President to extend the list of forbidden imports to include consumer goods, such as electronic equipment. Any vessel that violates driftnet agreements will also be banned from entering U.S. ports.

In 1992, Congress enacted the High Seas Driftnet Fisheries Enforcement Act (Public Law 102-582) to increase the effectiveness of U.N. resolutions 44/225, 45/197 and 46/215, which it co-sponsored. Permissible enforcement measures include denial of U.S. port privileges for any large-scale driftnet vessel, mandatory sanctions on fish products from countries that continue large-scale driftnet fishing on the high seas beyond the U.N. deadline, including a prohibition on the importation into the U.S. of fish and fish products and sport fishing equipment, and expanded presidential authority under the Pelly Amendment (Public Law 92-219, 85 Stat. 786, 22 U.S.C. 1978) to the 1954 Fishermen's Protective Act to pursue sanctions against non-fisheries imports. To date, none of these provisions has been invoked.

On March 8, 1993, the U.S. announced the steps U.S. enforcement authorities would take if they have reasonable grounds to believe that a foreign flag vessel encountered on the high seas is conducting, or has conducted large-scale pelagic driftnet fishing operations inconsistent with UN resolution 46/215 (U.S. Report to the U.N. 1993). The U.S. also reported that the U.S. Coast Guard had detected four vessels illegally driftnet fishing in the western North Pacific during the first half of 1993 (see above). Three of the vessels were either currently or formerly registered in the PRC. The U.S. provided the PRC with evidence packages, including photographs, video tape, and written accounts of the boarding and inspections of the vessels. In the fall of 1993, the U.S. Navy began developing a worldwide driftnet surveillance program to provide additional support for the U.S. Coast Guard and the National Marine Fisheries Service's enforcement efforts. An operational/training video and a driftnet vessel recognition guide were produced to train fleet personnel.

The Canadian Response

Canada reported that it was continuing its air surveillance enforcement efforts in the North Pacific, which were begun in 1990. Canada also held bilateral consultations with Thailand, Malaysia and Singapore in an effort to stop the continuing trade in illegal salmon. Canada estimated that during 1992, 6,000 tons of North Pacific salmon were illegally caught by Taiwanese vessels north of the squid driftnet fishing boundary, and canned, frozen and re-exported from Thailand, Singapore, Malaysia, Indonesia, Hong Kong and the PRC to Europe and Australia (UN Secretary-General's Report 1992). Thailand has agreed to curtail the purchase and export of illegally caught North Pacific salmon; Malaysia and Singapore have merely notified their processors of Canada's concerns (UN Secretary-General's Report 1993). Canada also noted that "while the Japanese [Regulatory, Enforcement and Information Gathering] programme specifies measures to be taken by Japanese vessels to reduce fishing effort and areas of fishing operations, it is unclear if resolution 46/215's objective of a 50 per cent reduction in fishing effort by 30 June 1992 has been achieved as a result of these measures" (UN Secretary-General's Report 1992). In May 1994, the Canadian Senate and House of Commons passed a law allowing Canada to arrest fishermen who violate a ban on catching near extinct fish stocks in international waters. The law gives Canadian officials the authority to go beyond Canada's EEZ and intercept suspect vessels.

The Response from Japan

On 1 July 1993, the Japanese government announced that it stopped issuing large-scale driftnet fishing licenses after 31 December 1992 and had established an enforcement plan that would utilize six patrol vessels for a total of 495 days. The government has also established a compensation program for driftnet vessels that fished in one of the driftnet fisheries at least two of the last three years of the fishery. Compensation was available to squid vessel owners over a three-year period, but to large-mesh vessel owners only in 1992. The government is not planning to expand licenses in alternative fisheries in order to create new opportunities for ex-driftnet vessels, since most fisheries are already fishing at or beyond sustainable levels. Licenses must be purchased from vessels that already have them. Vessel owners are entitled to dispose of their vessels in any manner they wish, as long as they do not attempt to continue operating in the driftnet fishery. Vessels over 15 years old will probably be scraped. Several driftnet vessels were reportedly sold to Taiwanese and PRC nationals.

The Response from the Republic of Korea

In its 1992 submission to the U.N., the Korean government announced that as of the end of June 1992 it had decreased its effort 50 percent by decreasing the number of vessels 24 percent, the length of its nets 15 percent, limiting its fishing season to April-November, instead of April-December, and changing its western driftnet fishing boundary from 160 deg W to 145 deg W. On 14 September 1993, the ROK informed the U.N. that as of 30 November 1992 it had completely suspended all large-scale pelagic driftnet fishing and has offered a compensation program to pay driftnet vessel owners for some conversion and scrapping costs. The program does not provide for full compensation and as a result some owners have threatened to continue driftnetting. However, the government announced that it would try to expand licenses in distant water fisheries such as squid jigging off South America. It is expected that the majority of the squid driftnet fleet will convert to squid jigging (Huppert 1993).

The Response from Taiwan

On 11 November 1992, Taiwan stated that in compliance with UN resolution 46/215 it would prohibit all driftnet fishing by Taiwanese vessels on the high seas after 1 January 1993. Violations would be punished by withdrawing the vessel's fishing certificate. Taiwan also announced that in the past three years it had revoked the fishing certificates of 14 vessels for violating driftnet regulations and during 1992 had cut its large-mesh fleet in the North Pacific to half and its Indian Ocean fleet to a third. In addition it directed those vessels that wished to continue to fish in the Indian Ocean to "call at the port of Singapore or the port of Cape Town within the designated time for inspection by the Fisheries Officers stationed at Singapore or Cape Town to ensure that the driftnet fishing equipment on board has been dismantled and their driftnet gear properly disposed of" (Taiwan Policy Measures 1992).

The Taiwanese government has also established a program to buy back driftnet vessels older than 15 years and provide low interest loans to owners of vessels newer than 15 years "to help them make the transition to other fishing methods" (Register-Guard 1991). As of 5 March 1993, 93 vessels had been bought back and 69 had applied for conversion loans (Huppert 1993). Vessels that were bought back were either used as artificial reefs or destroyed. Scrapping costs were paid for by the government. Owners assert that the compensation costs do not cover the full amount they believe their vessels are worth. Apparently they are also upset that the government is not buying back driftnet gear, nets and satellite transmitters, particularly since they feel the government encouraged entry into the driftnet fishery (Huppert 1993).

To be eligible for a low interest conversion loan, a vessel must have participated in the driftnet fishery for at least one year. The government currently licenses tuna longlining, squid jigging, trawling, and purse seining, and is not planning to increase the number of licenses. However, if a vessel previously held a tuna longline fishery license, it can convert back to that fishery. According to a COA official, the majority of driftnet vessel owners previously owned tuna longline licenses (Huppert 1993).

In 1992, Taiwan and the United States agreed on regulatory measures for driftnet vessels fishing in the North Pacific between 1 July 1992 and 31 December 1992 (Taiwan - U.S. Regulatory Program 1992). The total number of licenses issued to driftnet vessels was limited to 87, while the number vessels licensed to operate in the North Pacific at any given time could not exceed a total of 64. Driftnet operating grounds were specified by longitude and latitude. All driftnet vessels were required to carry an automatic satellite position fixing device that would allow automatic, real-time monitoring of the location and identity of the vessel. Driftnet vessels were required to prominently display their international radio call signs (IRCS), identify their gear by permanently marking it at every 50 meter interval of net with the name of the vessel and its IRCS, and refrain from discarding used or damaged driftnets. All squid caught in the North Pacific must be transshipped to Taiwanese transport vessels and/or landed in Taiwanese ports. Prior permission must be obtained before tuna or squid can be transshipped at sea. All marine resources harvested by Taiwanese driftnet vessels must be landed or inspected in Taiwanese ports, with the exception of tuna shipped to American Samoa and Puerto Rico. Taiwan also agreed to provide the United States with catch/effort data and information about the fishing and transport vessels. Taiwan agreed to deploy three enforcement vessels for a total of 310 surveillance days in the North Pacific. However, Taiwan has interpreted the agreement as requiring them to report only those violations committed by Taiwanese vessels.

The Response from the Peoples Republic of China (PRC)

On 13 February 1993, the Ministry of Agriculture promulgated a regulation prohibiting large-scale driftnet fishing on the high seas and notified local governments and fishing companies. The PRC announced that the regulation would be enforced by confiscating the catch, fishing gear and related income and imposing a fine; detaining or revoking the fishermen's license; and "bringing to account by administrative means the chief executives of the entities owning the vessels" (UN Secretary-General's Report 1993). The PRC also announced that it had detained and punished the three vessels detected driftnet fishing in the North Pacific in 1993 by the United States. The Yingyu 601 and Yingyu 602 had had their gear confiscated, their licenses repealed and a Y 50,000 fine levied on each vessel. The Dayuanyu 206, who was fishing without a license, was fined Y 110,000 and its gear was confiscated (UN Secretary-General's Report 1993). On 3 December 1993, the PRC and the United States signed a memorandum of understanding on joint enforcement of the UN driftnet resolutions. Under the terms of the agreement, enforcement officials of either country may board and inspect fishing vessels flying the U.S. or PRC flag found using or equipped to use large-scale pelagic driftnets inconsistent with the provisions of the United Nations resolutions. The agreement also provides for enforcement officials of either country to travel on high seas driftnet enforcement vessels of the other country (US/PRC Memorandum 1993).

The European Community Response

On 28 October 1991, the European Community (now the 12 member European Union) announced that it would "seek to end all large scale pelagic driftnet fishing along the lines provided for in U.N. Resolution No. 44/225" and adopted a legally binding regulation that prohibited member state vessels from driftnet fishing with more than one pelagic driftnet 2.5 km in length (European Community Regulations L 42/18, 345/92). On 27 January 1992, the Council of Ministers of the EEC prohibited fishing vessels to carry on board or to fish with one or more driftnets whose individual or cumulative length is greater than 2.5 km, applicable to any vessel registered in a member State and all waters within the jurisdiction of the member States as well as the high seas. However, the prohibition did not apply to the waters of the Baltic, the Belts and the Oressund, where the rules of the International Baltic Sea Fisheries Commission are in force. In addition, vessels that had been driftnetting for the previous two years in a section of the Northeast Atlantic that included high seas were permitted to continue to use two contiguous nets of up to 2.5 km each in length until 31 December 1993, provided the nets were suspended two meters below the surface. Only France fit the conditions of the exemption and 50 of her vessels continued to driftnet in violation of the U.N. moratorium. The exemption was to end on 1 January 1994 unless it could be shown with scientific evidence that the nets did not create ecological hazards.

The exemption for France jeopardized the EC's ability to maintain a comprehensive ban on high seas driftnets and caused serious economic problems for other EC fishermen unable to compete with the French driftnets. During the summer of 1993, vessels from Ireland and the United Kingdom joined the French fleet to driftnet fish for albacore in the northeast Atlantic (Marine Mammal Commission unpub. 1993). At the end of the 1993 season, France submitted a preliminary study of incidental catches of cetaceans by the French albacore tuna driftnet fishery in an effort to meet the conditions set forth by the EC. The study was found to be inadequate: no attempt was made to evaluate the effect of the fishery on non-cetacean species, the cetacean data indicated that driftnets caught disproportionately large numbers of striped dolphin compared to their estimated population size, although information on population sizes of all species of cetaceans vulnerable to driftnets in the Northeast Atlantic is minimal. In November 1993, the Scientific Fisheries Committee of the European Parliament determined that over 600 striped and common dolphins were killed in the 1993 season, 50 percent of which were baby dolphins, including many with their umbilical cords still attached. In December 1993, European Union fisheries officials in Brussels ordered French vessels to stop using driftnets longer than 2.5 km in the northeast Atlantic. In the Spring of 1994 both France and Ireland continued to exert political pressure for special driftnet privileges, and in April 1994, the EC Commission announced that was recommending to the EC Council that the "French exception" be continued for another year, despite the fact that there was no required showing of the absence of any ecological risk.

The Response from South Africa

On 23 June 1993, the government of South Africa announced that it had issued additional regulations relevant to the use of driftnets pursuant to its Sea Fisheries Act (Act No. 12 of 1988). They included prohibiting the possession, landing or transshipment of any tuna caught by gillnets, and the use or possession of gillnet, purse seine, longline, or any of several types of trawl nets without a permit. No permits are issued for the use of gillnets. The South African government also announced that during 1992 it had fined three foreign fishing vessels caught in possession of gillnets and had confiscated and destroyed the nets. It also reported that a Honduran vessel with a Danish captain on board was fined and 43 km of net confiscated.

Driftnet Fishing as an Abuse of the Global Commons

Driftnet fishing nations defend their right to fish with large scale driftnets on the high seas as a legitimate exercise of their high seas rights. However, as the international scholar Lauterpacht (1958) once said: "There is no legal right, however well established, which could not in some circumstances, be refused recognition on the ground that it has been abused." The Dutch citizen Grotius (1609), in the 17th century, noted the following high seas principles: (1) the sea could not be object of private or state appropriation, and (2) use of the high seas by one State must leave it available for use by another.

At its peak, more than 1000 vessels engaged in large scale driftnet fishing. Each one may have set between 20 and 60 km of driftnet each night they fished. In addition to the tons of target species caught, many more tons of both wanted and unwanted species were brought in putrefied, mutilated, dead or dying and were discarded. Additional tons of damaged, dead and dying fish dropped out of the net before harvesting. This pillage represented a de facto appropriation of the bulk of the resources of the high seas by only a few fishing nations. Driftnet fishing depletes the high seas so completely of fish and wildlife there is little left for fishermen who use sustainable fishing methods. In addition, the enormous by-catch taken by driftnet vessels also threaten to and in some cases did deplete coastal fishing stocks. Large-scale, high seas driftnetting constitutes an abuse of the right to fish and an abuse of the rights of others.

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