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