INTERNATIONAL LAW GOVERNING
DRIFTNET FISHING ON THE HIGH SEAS
Introduction
"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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