Whose Fish? Whose Ocean?

Repeated abrasive encounters between American fishermen and Latin American governmental authorities over the past year, while meantime Russian trawlers work close in to our own shores, have made many Americans freshly aware of the law of the sea, even if most of us do no more than wonder whatever became of the three-mile limit.

It is appropriate that the overall question of jurisdiction over the sea should be dramatized by fishing disputes, for today these provide many of the thorniest problems. It was not always so. When in 1967 the United Nations began to examine the matter of the ocean's ownership, fisheries were excluded from the deliberations. Attention was concentrated on the seabed: how to control its military use and its oil and other minerals. Since then, many of the world's states have concluded that for them fisheries are of greater importance than other marine issues, and consequently it is expected that fishery problems will be an important feature of the Third UN Conference on the Law of the Sea, which is scheduled for 1973.

While such issues as rules governing offshore oil production, rights of military passage, ocean pollution, and the like attract the attention of some governments, not all are concerned with these matters. However, almost all coastal states engage in some fishing, using their own labor and vessels. Fishery interests are pervasive and, for the world as a whole, are a larger source of revenue than any other marine resource, including oil. Fishery problems are not only more important but more difficult. Problems of oil, for example, relate primarily to the continental margin and can be removed from the international arena by unilateral extension of exclusive zones. Problems of marine fisheries, however, cannot shed their international character because fish, being fugacious, have no respect for boundaries. Some of the more highly travelled species (salmon, tuna) range the ocean. Most stocks are not so broad ranging, but in their lateral movements along the shore they still may pass through the jurisdictions of several states. Thus for fisheries, international rules, at least on a regional basis, are required.

Fishery problems are aggravated by rapidly increasing competition for restricted supplies. From World War II until 1969 the catch grew at 6 percent per year, but for 1969 a decline was registered, and projections of the Food and Agriculture Organization indicate slower growth—down to about 2.3 percent per year. Most conventional species are subjected to extraordinary pressure and many are fished beyond the point of maximum sustainable yield. Rising demand coupled with limited stocks raises the value of fish and makes it profitable to continue fishing even when yields diminish. Thus, the capacity of the U.S. tuna fleet rose 75 percent in the last four years, and the world tonnage of large fishing vessels increased by one-eighth between 1969 and 1970.

Large fishing vessels can cause international disharmony, since they can travel thousands of miles to fish off the shores of foreign states in waters once reserved to local fishermen. In one season they can clean out a local stock and move on to other waters, leaving little behind them.

In 1958 only 6 states claimed exclusive fishing limits of more than 12 miles out from shore. Now the number is 16, of which 10 extend their claim to 200 miles. In asserting its claim, Ecuador collected $1.5 million from U.S. tuna fishermen apprehended within Ecuadorian-imposed limits during the first few months of 1971.

Regardless of where exclusive limits are drawn, increasing pressures on fish stocks require new institutions and management techniques. Past conservation regulations have only resulted in lower catches per unit of effort. For example, in the past 25 years the catch of Alaskan salmon declined by one-third while the number of fishermen doubled.

If yields are to be maintained and costs minimized, some agency must control the amount of fishing effort. This raises difficult questions of how the sea's wealth in fisheries is to be divided. One solution might be to view ocean fish as a "common heritage" which, under suitable institutional arrangements, would be used to generate economic revenues for all. However desirable this might be from the standpoint of efficiency and equity, it would mean that fishermen—many of them very poor—would have to pay for their present free right to fish.

The United States proposed a draft treaty, including provisions relating to fishing, at a meeting of the UN Seabed Committee in August. With regard to the struggle between coastal states and distant water fishing states, the U.S. proposal attempts to give everything to the coastal states while taking nothing from the foreigners. Thus, it would allocate to the coastal state that percentage of the allowable catch which can be harvested by it in adjacent waters while assuring foreigners that the share of the allowable catch traditionally taken by them would not be allocated to the coastal state. The criterion of ability to exploit (coastal state) is in contention with the history of exploitation (foreigners). Recognizing the contradiction elsewhere, the draft urges negotiation between the two parties with respect to traditional fishing rights.

The U.S. position is influenced by its interest in maintaining rights of military passage. Extension of exclusive fishing zones is resisted lest these areas be transformed into territorial seas controlled by the coastal states. The U.S. position, which favors stock-by-stock treatment of each fishery rather than 18 blanket zones of control, has merit from a managerial standpoint, but it does not resolve the question of who gets what share of the stock.

With regard to management of the fisheries, the U.S. proposal is equally unsatisfactory. It speaks of "taking into account relevant environmental and economic factors," but does not specify how this is to be done. Restriction of the capital and labor devoted to fishing is required for efficiency. The guarantee of a specific share of the catch to foreign fishermen might favor a limit on their number. However, under the exploitability criterion the share of the coastal state is expandable, which makes it unlikely that the coastal state would restrict the number of fishermen until it had taken the entire allowable catch.

The necessity for controls on fisheries capital and labor was forcefully presented to Congress at a recent hearing by the director of the National Marine Fisheries Service. He pointed out that the root problems of fisheries lie in the failure of ordinary market forces to make a proper allocation of inputs into a common property natural resource. This is the first time such a statement has been made to Congress by a high government official and it marks the first step toward a system of rational management. But unless the Fisheries Service develops a stronger influence on the Department of State, progress is not likely to be great.

The U.S. draft contains no specific reference to the possibility of treating fisheries as common heritage. However, it apparently intends to provide special treatment for highly migratory stocks, such as tuna and whales, by removing them from the criterion of exploitability by coastal states. This would permit such stocks to be treated as common heritage resources, although it is not specifically proposed.

While the U.S. proposal is unsatisfactory in its treatment of fisheries, it is the only one so far put forward for discussion prior to the 1973 Conference. Unless more preparation is evident by next fall, it may be necessary to postpone the Conference, thereby increasing the temptation to resolve questions by unilateral action rather than international agreement.