¹ See Message from the President transmitting the 1982 United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the Convention, S. TREATY DOC. NO. 39, 103d Cong., 2d Sess. (1994). The latter agreement, which was adopted on July 28, 1994, and signed by the United States, subject to ratification, on July 29, 1994, is not discussed in this article, but its provisions are critical to acceptance of the 1982 Convention. It is discussed in a forum consisting of Bernard H. Oxman, The 1994 Agreement and the Convention, 88 AJIL 687 (1994); Louis B. Sohn, International Law Implications of the 1994 Agreement, id. at 696; and Jonathan I. Charney, U.S. Provisional Application of the 1994 Deep Seabed Agreement, id. at 705. For the text of the Convention, opened for signature Dec. 10, 1982, see UN Doc. A/CONF.62/122 (1982), reprinted in UNITED NATIONS, OFFICIAL TEXT OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA WITH ANNEXES AND INDEX, UN Sales No. E.83.V.5 (1983), 21 ILM 1261 (1982).

² Letter from Lee Weddig, Executive Vice President of the National Fisheries Institute, to Walter B. Jones, Chairman, House Committee on Merchant Marine and Fisheries (Aug. 17, 1982) (on file with author).

³ Letter from B. J. Putnam, Chairman of the Gulf of Mexico Fishery Management Council, to President Ronald Reagan (June 8, 1982), reprinted in Status of the Law of the Sea Treaty Negotiations: Hearings Before the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries, 97th Cong., 2d Sess. 420 (1982) [hereinafter House Hearings].

⁴ Letter from Patrick L. Carroll, Chairman of New England Fishery Management Council, to President Ronald Reagan (Sept. 24, 1982) (on file with author).

⁵ Memorandum by Lucy Sloan, Executive Director of the National Federation of Fishermen, reprinted in 128 CONG. REC. 12, 859 (1982) (under remarks of Cong. Don Young (R., Ark.)).

⁶ Letter to President Ronald Reagan signed by, inter alia, representatives of the National Ocean Industries Association, the National Federation of Fishermen, the Pacific Seafood Processors Association, and the National Fisheries Institute (Apr. 29, 1982), reprinted in 128 CONG. REC. at 12,869. This letter primarily addressed the question of Part- XI of the treaty but cited an alleged instance of precedential effect and import concerning the fisheries provisions of the treaty. Alleging that the treaty required avoiding economic dislocation of foreigners fishing in the U.S. exclusive fishery management zone, the letter referred to an attempt by Japan to change provisions of a bilateral fisheries agreement with the United States (which was required for Japan to gain access to fish within U.S. jurisdiction). In fact, as might have been predicted, the episode had no precedential effect of any kind. The attempt failed and nothing happened as a result. Since this episode, all foreign fishing has been terminated within the U.S. exclusive economic zone (EEZ), and high seas salmon fishing by Japan has also been terminated pursuant to an agreement between Japan, Russia, Canada and the United States.

⁷ See House Hearings, supra note 3, for the opposing views of several members of the Committee on Merchant Marine and Fisheries, as well as others. Congressman Don Young of Alaska particularly expressed vigorous opposition to the treaty. See his statements in the Congressional Record of April 21, June 7, and June 9, 1982, in addition to his statement in the record of the hearings on July 27, 1982, supra.

⁸ In assessments of the treaty in 1982, “economic disorder,” “confusion,” “giveaway” and “nightmare” were some of the terms employed to disparage the treaty. See, for example, the statement of Congressman Don Young of Alaska, in U.S. Foreign Policy and the Law of the Sea: Hearings Before the House Comm. on Foreign Affairs, 97th Cong., 2d Sess. 30 (1982).

⁹ “Senator, we are also transferring control over our exclusive economic zone. We may be required under sections 62 and 69 of the treaty to allow third world countries to fish within our 200-mile exclusive economic zone.” See Current Status of the Convention on the Law of the Sea: Hearings Before the Senate Comm. on Foreign Relations, 103d Cong., 2d Sess. 3 (1994) [hereinafter Senate Hearings].

¹⁰ Id. at 6. This and other misunderstandings of the treaty and of U.S. law were immediately corrected by Ambassador David Colson. Id. at 11, 56–58.

¹¹ In February 1994, after several years of negotiation, an agreement on pollock conservation in the high seas portion of the Bering Sea was concluded by the two coastal states concerned, the United States and the Russian Federation, and fishing states of the People’s Republic of China, Japan, the Republic of Korea, and Poland. Convention on the Conservation and Management of Pollock Resources of the Central Bering Sea, opened for signature June 16, 1994, S. TREATY DOC. No. 27, 103d Cong., 2d Sess. (1994). For discussion of this agreement, see the text at note 64 infra.

¹² GA Res. 46/215, UN GAOR, 46th Sess., Supp. No. 49, at 147, UN Doc. A/46/49 (1991), recommended termination of all fishing on the high seas with large pelagic driftnets. 31 ILM 241 (1992). It was then believed (and still is in many quarters) that the North Pacific high seas squid fisheries were responsible for an excessive bycatch of salmon (and marine mammals, turtles and seabirds) in the North Pacific. For discussion of this action with a different view, see text at note 56 infra.

¹³ Law of the Sea Committee, North Pacific Fisheries Management Council, Draft minutes (Sept. 28, 1994) (on file with author).

¹⁴ David Benton, Director, Office of External and International Fisheries, Alaska Dep’t of Fish and Game, Statement before the Senate Comm. on Commerce and Transportation (July 21, 1994) (on file widi author).

¹⁵ In general, straddling stocks are those species occurring both within the EEZ and beyond. For a comprehensive account of this phenomenon, see Evelyne Meltzer, Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries, 25 OCEAN DEV. & INT’L L. 255 (1994). For the most recent developments, see text at notes 65–67 infra.

¹⁶ Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, Feb. 11, 1992, S. TREATY DOC. NO. 30,102d Cong., 2d Sess. (1992), reprinted in 2 MARINE MAMMAL COMMISSION, COMPENDIUM OF SELECTED TREATIES, INTERNATIONAL AGREEMENTS, AND OTHER RELEVANT DOCUMENTS ON MARINE RESOURCES, WILDLIFE, AND THE ENVIRONMENT 1360 (1993). For the most recent North Pacific developments, see text at note 46 infra.

¹⁷ See Benton, supra note 14. Senator Murkowski of Alaska raised this same issue in August 1994, in hearings conducted by the Senate Foreign Relations Committee. See Senate Hearings, supra note 9, at 42–43. It is not irrelevant in this connection that all three Alaskan representatives in Congress now occupy powerful positions in the Senate and House.

¹⁸ See 128 CONG. REC, supra note 5, at 12,859-60 (statement of Cong. Young). The specific alleged disadvantage of the LOS treaty is that it would prohibit withholding a surplus in the EEZ from foreign fishing for the purpose of gaining market access for the stock withheld (tanner crab). Id. at 7366 (statement of Cong. Young). Although the latter species would not be subject to Article 61 of the LOS treaty (sedentary species are subject to the continental shelf regime, not the EEZ regime), it is suggested that an analogous situation could arise for species that are subject to Article 61. As noted below, other costs are also incurred if foreign access must be permitted. As mentioned in the text at note 19 infra, the LOS treaty does not create these problems because under die treaty the United States would.wholly control the decision to declare a surplus.

¹⁹ Article 61 of the treaty provides that coastal management measures are to be directed at maintaining levels of stock abundance at die MSY level, “as qualified by environmental and economic factors,” listing some of these factors. The effect of this provision is that it is the coastal state that decides on die level of stock abundance and permissible catches of fish within its authority. Article 297, paragraph 3(a) declares that the coastal state’s powers to determine the allowable catch and its harvesting capacity are discretionary and not subject to compulsory dispute setdement procedures. These determinations are the means, dierefore, for realizing coastal state interests.

²⁰ The basis for the statement in the text is that, if a coastal state establishes an allowable catch at less than the estimated MSY, the difference might be considered “surplus” biological product. However, to allow foreign fishing of this “surplus” will have the effect of reducing stock abundance on which coastal fishing also depends. The effect is to increase the amount of effort needed by coastal fishermen to take the same catch as was to be taken from that stock. The increased effort results in additional cost to take the same amount of fish. See sources cited in note 26 infra.

An additional consideration is diat to allow foreign fishing to bring the overall catch up to the MSY level is to invite serious management problems. It is estimated that, because of unavoidable errors in estimating MSY, allowing fishing at the level of MSY abundance will result in overfishing 50% of the time. The price of overfishing is reduced stock abundance and increased likelihood that future catches will have to be reduced. The impact of such reduction will clearly fall solely on coastal fishermen. See generally UN FOOD AND AGRICULTURE ORGANIZATION [FAO] FISHERIES DEP’T, REFERENCE POINTS FOR FISHERY MANAGEMENT: THEIR POTENTIAL APPLICATION TO STRADDLING AND HIGHLY MIGRATORY STOCKS, esp. at 10–13 (FAO Fish. Circ. No. 864, 1993).

²¹ LOS Convention, supra note 1, Art. 61, para. 2.

²² However, there may be nations for which employment needs are so urgent that the risk of some degree of overfishing seems necessary. The same formula that allows economic needs to be taken into account would allow for this decision as well. Any desirable impact of such a choice would seem to be very short-term.

²³ The relevant provision states:

Any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this subchapter shall be consistent with the following national standards for fishery conservation and management:

(1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.

16 U.S.C. §1851(a)(1) (1988). Optimum yield is defined as

the amount of fish—

(A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and

(B) which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor.

Id. §1802(21) (Supp. V 1993).

²⁴ LOS Convention, supra note 1, Arts. 62, para. 2 and 297, para. 3(a).

²⁵ Id., Art. 62, para. 3.

²⁶ For background discussion explaining these propositions, see B. J. Rothschild, Achievement of Fisheries Management Goals in the 1980s, in GLOBAL FISHERIES 160–61 (B. J. Rothschild ed., 1983); J. A. Gulland, Conditions of Access to Fisheries: Some Resource Considerations, in FAO, REPORT OF THE EXPERT CONSULTATION ON THE CONDITIONS OF ACCESS TO THE FISH RESOURCES OF THE EXCLUSRVE ECONOMIC ZONES 81, 82 (FAO Fisheries Rep. No. 293, 1983); L. S. PARSONS, MANAGEMENT OF MARINE FISHERIES IN CANADA 42–44 (1993).

²⁷ FAO FISHERIES DEP’T, supra note 20, para. 24 n.2.

²⁸ Id., para. 104.

²⁹ Id., para. 31.

³⁰ Article 62, paragraph 2 of the LOS Convention, supra note 1, provides in relevant part: “Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch ….”

³¹ 16 U.S.C. §1821 (d) provides that the total allowable level of foreign fishing offish subject to U.S. exclusive fishery management authority “shall be that portion of the optimum yield of such fishery which will not be harvested by vessels of the United States, as determined in accordance with this Act.”

³² Article 62, paragraph 3 of the LOS Convention, supra note 1, simply says: “In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia” listing a number of factors.

³³ Id.

³⁴ 128 CONG. REC, supra note 5, at 7366 (extension of remarks by Cong. Young).

³⁵ This provision states:

(b) Where no settlement has been reached by recourse to section 1 of this Part, a dispute shall be submitted to conciliation under Annex V, section 2, at the request of any party to the dispute, when it is alleged that:

…

(ii) a coastal state has arbitrarily refused to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in fishing; or

(iii) a coastal State has arbitrarily refused to allocate to any State, under articles 62, 69 and 70 and under the terms and conditions established by the coastal State consistent with this Convention, the whole or part of the surplus it has declared to exist.

The argument summarized in the text is more fully made in a paper from a group of U.S. fishermen submitted by Congressman Young of Alaska, 128 CONG. REC., supra note 5, at 12,859.

³⁶ LOS Convention, supra note 1, Ann. V, Art. 7, para. 2 declares that “[t]he report of the commission, including its conclusions or recommendations, shall not be binding upon the parties.”

³⁷ LOS Convention, supra note 1, Art. 297, para. 3(c) provides that “[i]n no case shall the conciliation commission substitute its discretion for that of the coastal State.”

³⁸ Id., para. 3(a).

³⁹ 16 U.S.C. §1855(d) (1988).

⁴⁰ Garcia and Newton point out the increasing risk of depletion of developing-state resources to benefit developed states’ markets as a result of joint ventures and international trade. A part of some developed fishing nations’ strategy has been to transfer their excessive fishing capacity for use on the fishery resources of developing nations. See S. M. Garcia & C. Newton, Current Situation, Trends and Prospects in World Capture Fisheries, Paper presented at Conference on Fisheries Management, Global Trends, Seattle, Washington, (June 14–16, 1994) (on Hie with author).

⁴¹ For this line of argument, see 128 CONG. REC, supra note 5, at 13,260–61 (Cong. Young).

⁴² For a recent, dubious holding that a domestic quota decision by the Mid-Atlantic Fishery Management Council was arbitrary and therefore invalid, see Fishermen’s Dock Cooperative v. Brown, 867 F.Supp. 385 (E.D. Va. 1994).

⁴³ See note 9 supra. It is not clear what group of states he had in mind, if any, other than landlocked, the group to which Article 69 applies.

⁴⁴ See generally WILLIAM T. Burke, THE NEW INTERNATIONAL LAW OF FISHERIES 69–77 (1994). See also the similar assessment by Ambassador Tommy Koh, Remarks, in CONSENSUS AND CONFRONTATION: THE UNITED STATES AND THE LAW OF THE SEA CONVENTION 390–91 (Jon Van Dyke ed., 1985).

⁴⁵ See 128 CONG. REC, supra note 5, at 13,260–61 (Cong. Young).

⁴⁶ Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, supra note 16. The parties to this agreement are the United States, Canada, Japan and Russia.

⁴⁷ Id., Art. III(1)(a).

⁴⁸ Id., para. 1(b).

⁴⁹ LOS Convention, supra note 1, Art. 311, paras. 2, 3.

⁵⁰ Id., Art. 66, para. 3(a).

⁵¹ Id., para. 3(c).

⁵² See Law of the Sea Committee, supra note 13.

⁵³ The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks has been under way since 1993 and two sessions are scheduled in 1995. See text at note 65 infra.

⁵⁴ See the argument developed in Edward L. Miles & William T. Burke, Pressures on the United Nations Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflicts: The Problem of Straddling Stocks, 20 OCEAN DEV. & INT’L L. 343, 353–55 (1989).

⁵⁵ Dave Benton, Statement before the Senate Committee on Commerce, Science and Transportation 10 (July 21, 1994) (manuscript on file with author).

⁵⁶ This is the unequivocal conclusion of the June 1991 international scientific review of the 1990 observations of this fishery. Scientific Review of North Pacific High Seas Driftnet Fisheries, Sidney, B.C., Report for Presentation to the United Nations pursuant to Resolutions 44/225 and 45/19, at 37 (1991). In contrast, “the group expressed great concern over the impact of illegal fishing activities on stocks of North Pacific salmonids.” Id. at 38. The illegal activities were by licensed vessels fishing in violation of national laws and unlicensed vessels targeting salmon. Id. at 36. The relative impacts of the two types of illegal fishing were not known because of lack of data. It is known, however, that Taiwan reported exports of four to six thousand tons of salmon in 1988 and 1989, although there are no populations of salmon originating in Taiwan. Id. at 38.

⁵⁷ This and other information on this fishery is compiled in William T. Burke, Mark Freeberg & Edward L. Miles, United Nations Resolutions on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management, 25 OCEAN DEV. & INT’L L. 127 (1994).

⁵⁸ A view expressed in the Law of the Sea Committee of the North Pacific Fisheries Management Council, supra note 13.

⁵⁹ In Article 66, the concept of fishing for a stock might be interpreted to include any significant taking of a stock incidental to the harvest of another.

⁶⁰ But the conclusions from this review were later mostly ignored or distorted by the United States when it proceeded to steamroller the General Assembly into adopting the 1991 driftnet moratorium resolution. It does not take much discernment to detect significant discrepancies between the U.S. political view of driftnets in its submissions to the United Nations and the careful, moderate statements of both the international review group and the U.S. scientists.

⁶¹ See note 56 supra.

⁶² It must be remembered, however, that the behavior of states following the adoption of the driftnet resolutions may create customary international law regarding the use of this gear. For advocacy of the proposition that die moratorium on driftnets is now customary international law, see Grant J. Hewison, The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing 25 J. MAR. L. & COM. 557 (1994). The same point might be made regarding the meaning of the concept of conservation in the treaty and in customary law. Subsequent agreements and other behavior will be taken as reflecting the provisions of the LOS treaty. In some instances, subsequent behavior may create customary principles that go beyond the treaty, by extending its concepts to new situations.

⁶³ The most comprehensive study of global fisheries bycatch to date shows that five of the ten lowest observed numbers-based discard rates were for driftnets. The rankings, beginning with the lowest, were Bering Sea midwater trawl for pollock, northeast Adantic tuna driftnet, Gulf of Alaska midwater trawl for pollock, Korean northwest Pacific squid driftnet, Taiwan northwest Pacific squid driftnet, subtropical convergence zone tuna driftnet, Tasman Sea tuna driftnet, Bering Sea king crab pot, Eastern tropical pacific tuna purse seine, and Bering Sea cod pot. D. L. ALVERSON, M. H. FREEBERG, S. A. MURAWSKI & J. G. POPE, A GLOBAL ASSESSMENT OF FISHERIES BYCATCH AND DISCARD (FAO Fisheries Tech. Paper No. 339, 1994).

⁶⁴ Convention on the Conservation and Management of Pollock Resources of the Central Bering Sea, supra note 11.

⁶⁵ Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, UN Doc. A/CONF.164/33 (1995).

⁶⁶ Id., Art. 8(4).

⁶⁷ Id., Art. 11.

⁶⁸ Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 UST 138, 559 UNTS 285.