The Law of the Sea in the 1990s:A Framework For FurtherInternational Cooperation

Copyright ~c 1992 by the La~ of the Sea Institute, University ofHawaii. All rights reserved. Manufactured in the United States ofAmerica.

International Standard Book Number 0-911! 89-23-8

Library of Congress Cataloging-in-Publication Data

l a~ Of tre Sea Inst,ti t ~ . Cchferance l24th '.99G tokyo. Japar >, he laii p< tne sea in the t99~js a fraaeicr ~ ipr further

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This book may be ordered from:

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Cite as Tadao Kuribayashi and Edward L. Miles eds.!, The La~ of theSea ie the 1990s: A Framework for Further International Cooperation,]page numbers] �992!.

The Law of the Sea Institute is housed and sponsored by the WilliamS. Richardson School of Law, University of Hawaii, and is a project R/PP-2! sponsored by the University of Hawaii Sea Grant CollegeProgram under Institutional Grant No. NA89AA-D-SG063 fromNOAA, Office of Sea Grant, Department of Commerce. The UnitedStates government is authorixed to produce and distribute reprints forgovernment purposes notwithstanding any copyright notations thatmay appear herein. This is Sea Grant publication UNIHI-SEA-GRANT-CR-92-04.

This volume is dedicated to the memory ofSenator SPARK M. MATSUNAGA

of the State of Hawaii

The life of Spark Matsunaga was motivated by the samemotivation that leads the Law of the Sea Institute to dedicate itsefforts to the resolution of conflict by consensus and peaceful means.As a young soldier in World War II, as a Japanese-American engagedin conflict with the land of his origins, as a member of the 442ndBattalion of the United States Army, wounded in battle and believingthat he was dying, he saw the horror and futility of using war as anextension of political policy. He then resolved to dedicate his life tothe resolution of conflict through law and legislation.

He was responsible for the establishment of the United StatesPeace Academy, but more than that, he recognized that solutions tomankind's problems are found not in words but in deeds, and thatamong those deeds is the wise use of the ocean. He thus initiatedlegishtion that advanced the development of ocean thermal energy anddeep seabed mining. En perhaps his last offici.al act, he wrote to thePresident of the United States and to senior members of his cabinetsuggesting that the Administration examine the potential of oceanthermal energy for meeting the energy, fresh water, and marineprotein needs of the developing world in a manner that benefited theenvironment.

In dedicating this proceedings to Spark Matsunaga we need notendorse the specific concepts that he espoused, but we do set forth asour example his dedication to the generation of proposais for thesolution of the problems of mankind. We must be dedicated, as he was,to international consensus on the policies and laws by which the oceancontinues to be of benefit to mankind, the common heritage, and thecommon good.

The co-sponsors wish to thank the following persons and institu-tion for financial support of this conference:

Alcan Aluminum Limited

Kgusa Foundation for International Cooperationin the Social Science

Exxon Corporation

Ford Foundation

International Communication Foundation

Japan Fisheries Association

Japan Foundation

Japan Motorcycle Racing Organization

Andrew W. Mellon Foundation

Mitsui Engineering 8c Shipbuilding Co., Ltd.

Nihon University

Sea Grant College Program, University of Hawaii

William S. Richardson School of Law, University of Hawaii

Republic of China Taiwan!

Tokyo Club

Tokyo Geographical Society

TABLE OF CONTENTS

~ ~ ~ » ~ ~ ~ ~ ~ ~ > ~ » 3OPENING CEREMONIES..., .

CONCEPT OF INTERNATIONAL COOPERATION IN THE LAWOF THE SEA AND THK KXTENT OF SUCH COOPERATION

International Cooperation in the New Regime of theLaw of the Sea,..........................,..... 9

Ambassador Motoo Ogiso Ret.!

D |scuss1on ....,,......,....................,..... 30

LUNCHEON SPEECH

International Cooperation in the Law of the Sea:The Indonesian Experience .......................... 39

Mochtar Kusuma-Atmadja

Relation Between User States and Coastal StatesWith Respect to International Navigation ................ 5l

Dalchoong Kim and Jin-Hyun Paik

International Cooperation in Shipping for the Nineties ..... 68Ivette Ng- Jaen

International Regulation of Maritime Crimes .........,... 82Takane Sugihara

CommentariesJoan Donoghue ...,..........Frances Lai.................Artemy Saguirian

INTERNATIONAL NA VIGATION

~ ~ ~ ~ ~ ~ ~ ~ > l 8~ ~ ~ ~ ~ ~ 0 ~ > ~ i ~ 22

~ ~ ~ ~ ~ ~ ~ ~ > ~ ~ > 24

Disposal of %aate and Right of Passage.......,...., 92Casey Jarman

~ 4 ~ ~ I ~ i i ~ ~ i 1 V04

LIVING RESOURCES PART 1!

b Coastal State Fishery Management Successful or Not!..... 113Douglas Johnston

Some Thoughts on the Straddling Stock Problemin the Pacific Ocean......,....,................... 127

Kunio Yonezawa

D Qcuaaion ~ + ~ ~ ~ w ~ ~ ~ ~ ~ ~ + ~ ~ s ~ ~ o ~ ~ ~ s ~ ~ ~ ~ ~ 4 s ~ ~ ~ ~ ~ ~ ~ e 1 48

LUNCHEON SPEECH

Proposals Regarding a Twelve-Mile Limit for the TerritorialSea by the United States in 1970 and Japan in 1971:Implications and Consequences ......,..............., 159

Shfgcfu Oda

LIVING RESOURCES PART 2!

175

High Seas: Drift Gil!nets, Highly Migratory Species, andMarine MamrnaIs .................................. 237

Nan Shearer

Technological Aspects .....,...,.................... 259Yoahiaki Matauda

VL11

D Ncuas lo n I ~ 4 ~ i ~ ~ ~ 4 ~ ~ + ~ ~ ~ ~ ~

Comme ntarieaNikolai Shcherbina .....Daniel Huppert ...,....Hugo Llanos Mamilla ...

State of High Seas Resources .....Serge Garcia and J. Majkovraki

136138

145

CommentariesNorio Fujinami..........................., ., 281

D !scussjon ~ ~ ~ ~ ~ ~ ~ ~ i ~ ~ ~ ~ ~ ~ ~ 1 ~ ~ ~ ~ ~ ~ i ~ ~ ~ ~ i ~ ~ ~ ~ ~ 0, 287

DEEP SEABED MINING

Evaluation of Deep Seabed Mining Technology: Past, Present,and Future................................, ... 293

Masamichi Fujimori

Common Heritage of Mankind: A Concept of Cooperationin our Interdependent Worldf.............,...,..... 312

Levan Imnadze

Reflections on Institutional Aspects and How to FacilitateUniversal Acceptance of the Convention ..........,,.... 319

Mumba Kapumpa

Commentaries

Jan Magne Markussen ......................... 336Milton Drucker..................,........... 351

354D iscussion

LUNCHEON SPEECH

Prepcom and Midnight Group: Deep Seabed Efforts~ g ~l Ln Limbo ....... e ~ ~ ~ ~ ~ ~ ~ ~ e ~ ~ ~ o r ~ ~ r ~ ~ e ~ ~ ~ ~ r 369

Renate PlatzMer

The Evolution of Ocean Policy......................, . 379John P. Craven

REEVALUATION OF THE FUNCTIONS OF THE SKA BASED ONNEW KNOWLEDGE OF THE SEA

In Search of Hydrocarbons in the Frontier Areas ofSoutheast Asia ......... ~ e ~ ~ e ~ + ~ ~ ~ ~ ~ ~ ~ o ~ ~ ~ ~ t r 398

John A. Katili

CommentariesGeoffrey Holland ............................Jaswinder Singh Mand......................

401

407

D 5cusskon ~ ~ ~ ~ ~ ~ ~ a4 ~ ~ ~ ~ ~ ~ at t r ~ ~ ~ ~ ~ ~ ~ ~ 4ll

LUNCHEON SPEECH

The Main Trends in Soviet Legislation on Ocean Affairs .... 417Anatoly Kolodkin

PICHTR: A Model for International Cooperation inTechnology Development and Transfer,.........,...... 427

Ronald J. Hays and Patrick K. Takahashi

International Cooperation in Salmon Fisheries and aComparative Law Perspective on the Salmon and OceanRanching Industry ...............,...,,....,..., . 432

Francisco Orrego Vicuna

China's Strategy for Development of Its Marine LivingResources in the EEZ .............................. 460

Bilan Du

Cooperation on Development of Tuna Fisheries .......,Guillermo Gomez

470

CommentaryKaxuo Sngai .............,,................. 483

D Isc uss !On ~ s ~ ~ ~ ~ ~ ~ ~ ~ + ~ ~ ~ e ~ ~ ~ i e ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ t ~ ~ ~ ~ I 4 86

INTERNATIONAL COOPERATION IN THE ASIA-PACIFICREGION

BANQUET SPEECH

The Completion of the Work of the Preparatory Commissionand the Universality of the Convention .....,...,....... 497

Jose Luis Jesus

LIST OF PARTICIPANTS........,............,,.... 51I

NDEX e ~ ~ t ~ ~ ~ ~ ~ ~ ~ ~ t e ~ ~ o e ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ ~ ~ r ~ o ~ e 523I

OPENING CEREMONIES

OPENING CEREMONIES

Tadao Kvribayashi; I would like to extend a warm welcome to all ofyou gathered here in Tokyo for the 24th Annual Conference of theLaw of the Sea Institute. The program, with a total of seven sessions,is focusing on one theme: The Law of the Sea in the 1990s: AFramework for Further International Cooperation, where an activeexchange of opinions and discussions is expected to take place.

Before introducing our two speakers, I would like to say a fewwords. At the Third UN Conference on the Law of the Sea, we hearda number of times from the floor of the conference room, "Do notopen Pandora's Box!" This was said in the attempt to reach a consen-sus, as a compromise could be mandated to avoid never-endingconfrontations of different viewpoints. This Tokyo conference,however, is not a table of treaty negotiations. We are here to examine,as professionals, every possible issue on the law of the sea fromdiverse perspectives. Our task, when we find a Pandora's box, is toopen it.

In Greek mythology, Hope, the idle laggard, missed its soleopportunity to get out of the box and therefore was shut up. I, as oneof the chairs of this conference, strongly hope that we, as specialistsin the field, shall look with fresh insights into what has been consid-ered as tradition in the order of the oceans, or what is taken forgranted as facts that we all agreed upon, so that we shall be able tolocate some hope in our future society.

Now, let me introduce Professor Edward Miles, who will deliveran address on behalf of the Law of the Sea Institute.

Edward Miles; Good Morning, ladies and gentlemen. Welcome to the24th Annual Conference of the Law of the Sea Institute. My col-leagues and I are honored and delighted to be able to hold our firstfull Asian conference in Japan. We have thought about this and havediscussed it with our Japanese friends for many years, and finally ithas come to pass. I would like to thank our kosts for their extremelygenerous support and hospitality, their easy cooperation, and theirvery efficient organization. I want to phy particular tribute to Dr.Kazuo Maeda, the president of the Ocean Association of Japan, mycolleague and friend of long-standing, Professor Tadao Kuribayashi,and Ambassador Shigeru Tokuhisa.

It is fitting to focus on the theme of international cooperation atthis stage in the evolution of the new law of the sea. Even before the

UN Convention pf 1982 is in force, implementation of the Conventionin all its aspects iS the critical policy issue. The fact that seabed miningis now much less urgent than it was pnce thought to be may help us to«nd some way out of the impasse with respect to U.S. accession to theConvention. I think we need the ingenuity, cooperation, and goodwillof all concerned to make that happen, Since the conclusion of theConvention, a series of high-seas problems has emerged, especiallywith respect to fisheries and to pollution. These pressures havestimulated once again coastal state demands. If not solved, theseproblems may stimulate additional coastal state action that will beharmful to and even possibly destructive of the balance that wasachieved in the l982 Convention. The need to find solutions to theseProblems is now urgent. Where the issue was not treated in theConvention itself, solutions must be in the spirit of the Convention tobe stable and to avoid harmful consequences. We need always to beaware that, irrespective of jurisdictional lines drawn, the ocean is aglobal commons. There are few real benefits in using this commonswithout cooperation of some kind,

In the time available, we will examine only a few issues. naviga-tion, fisheries in the exclusive economic zone and on the hig»eas.seabed mining, changing uses and functions of the sea in the light ofnew knowledge and new technology, and cooperation in the Asia-pacific region. The program is designed to involve new participantsand many younger participants. It is designed, also, to reach out to allof the multifaceted Lsw of the Sea Institute constituency, not just tolawyers.

Many of you know that the Law of the Sea Institute has recentlylost a great friend and supporter in Senator Spark Matsunaga. SenatorMatsunaga was the personification of the present theme of ourconference. He spent much of his professional life building interna-tional cooperation, particularly between the U.S. and Japan, and alarge proportion of his efforts was directed at cooperation in the studyand development of the oman. It was Senator Matsunaga who was thedriving force behind President Ronald Reagan's decision to establishthe Pacific International Center for High Technology Research, It wasSenator Matsunaga who was primarily responsible for creating the U.S.program for the development of ocean thermal energy and the MarineMinerals Technology Center. We say also, with gratitude, that SenatorMatsunaga could always be counted on to restore the funding of theNational Sea Grant Program when each year, for eight years, therewere attempts to eliminate this program from the federal budget. SeaGrant, as you know, has been very important to the life of the Law ofthe Sea Institute.

On the basis of the contributions that he has made, the Law of theSea Institute and the Ocean Association of Japan have agreed that itis only fitting that we should dedicate this conference and itsproceedings to the memory of Senator Spark Matsunaga. It gives megreat pleasure to do so now.

Tadao Auibayashr. Next let me introduce Mr. Maeda, the chairmanof the Board of Mitsui Engineering and Shipbuilding Company. Adoctor of engineering, Mr. Maeda is also the president of the OceanAssociation of Japan, the co-sponsor of this conference,

Kayo Naeda Honorable co-chairmen, ladies and gentlemen, onbehalf of the Ocean Association of Japan, which is one of the co-sponsors of this conference, it is my great honor and privilege towelcome you to this cornrnemorative opening of the 24th AnnualConference of the Law of the Sea Institute, which is being held for thefirst time in Asia. I am deeply impressed that so many of you,scholars, experts, government officials, staff members of internationalorganizations, as well as representatives of business circles throughoutthe world, all of whom are influential figures in your respective fields,have been able to gather in this hall from every part of the world fora free and frank exchange of views. Through your efforts here, theinternational community can expect even greater progress in solvingvarious problems of the oceans. I would like to express my convictionthat your profound knowledge, rich experience, sense of balance, andcooperation without a doubt can contribute to fruitful discussions atthis conference. I am sure that your participation will assure thesuccess of this conference.

As you all know, the UN Convention on the Law of the Sea wasadopted in 1982; however, it has not yet entered into force. I wish toreiterate the following remarks, which are written at the beginning ofthe conference brochure:

As we enter the last decade of the century, it is all the morecrucial to continue every effort to strengthen the legal order of thesea, through settlement of problems, either pending or newlyemerging, which arise from various conflicting interests. How canthese problems be resolved?

Believing that the vital element is maximum cooperationamong all parties concerned, this conference will focus on theissue of "The Law of the Sea in the 1990s: A Framework forFurther International Cooperation."

Under this main theme the conference will deliberate on seventopics, all of which wiH be of great importance for our future. I dohope that all participants will have a sense of accomplishment as aresult of our four days of fruitful discussions in Tokyo. As to thepreparations for this conference, my association owes a great deal togovernment agencies and many other organizations as well to the Lawof the Sea Institute. I should like to extend my heartfelt gratitude toall of you for the invaluable support and advice given to my Associa-tion. Regarding specific arrangements for the schedule of theconference I wouM like to apologize, in advance, for any possibleinconvenience that may be caused to any participant in spite of thebest intentions of your host country. I would be grateful if I could relyupon your warm generosity in this regard, Finally, I wish you allsuccess and hope that your stay in Japan will be an enjoyable one.

SESSION I:

CONCEPT OF INTERNATIONAL COOPERATION INTHE LAW OF THE SEA

AND THE EXTENT OF SUCH COOPERATION

INTERNATIONAL COOPERATION IN THE NEW REGIMEOF THE I AW OF THE SEA

Motoo OgisoProfessor of International Law

Tokai University

Introduction

The background of the Third UN Conference on the Law of the Sea UNCLOS III! could be summarized as a combination of idealism,which purported to utilize the deep seabed for the common benefit ofmankind, and the concern of the developing countries that broad highseas and narrow territorial seas would only profit the developedcountries. The idea of the deep seabed as the common heritage ofmankind was first pronounced in Ambassador Arvid Pardo's speech in1967 and eventually led to the UN resolution of 1970, which declaredthe principles governing the deep seabed. The UN Convention on theLaw of the Sea, which was adopted at the Law of the Sea Conference,is a massive convention, encompassing a wide variety of mattersrelated to the sea.

The Convention determines the breadth of the territorial sea, whichwas not agreed to in the Geneva Convention of 195&. It includesprovisions on such matters as the deep seabed, international straits, theexclusive economic zone, archipelagic states, the continental shelf, theprotection of the marine environment, technology transfer, the highseas, scientific research, and the settlement of disputes.

Since it is not possible nor practical to touch upon all these issues inthe time available, I would like to focus on the exclusive economiczone EEZ! and the deep seabed mining regime, two of the mostimportant issues discussed in the Third UN Conference on the Law ofthe Sea. In my speech, I would like to explore how these have fared inaccomplishing the intended objectives, namely, to contribute to theeconomic development of the developing countries.

The Establishment of the EKZ and Fishing

The provisions concerning the KEZ were incorporated in theInformal Single Negotiating Text ISNT! in the comparatively earlystages of the Conference under strong pressure from the Group of 77 G77!. At the time, it seemed that the developing countries wereoverladen with the concern that their offshore resources would be

exhausted by the developed countries! as a result of large-scalefishing or over-development. Therefore, the 677 thought thatguarding these resources through creation of a 200-mile economiczone was an urgent task, as the first step towards their economicdevelopment. Such train of thought is evidenced by the fact that theopinion favouring optimum utilization of living resources" or"maximum sustainable yield" was received dubiously by otherntembers of the Evensen Group and other informal groups where theEKZ was discussed and also by the fact that results of discussions wereincorporated in the ISNT in a hasty manner and later, that the articlesconcerning the EEZ were practically excluded from the negotiation asa fait aceomp i.

Later, in the latter half of the 1970s, many participating States to theConference, including the U,S., the Soviet Union, and other majorfishing nations, enacted domestic legislation establishing 200-mileeconomic or fishing zones. Japan, which had long maintained itsobjection to the EEZ due to its position as the largest distant waterfishing nation, had also established provisionally a 200-mile fishingzone in 1977 in order to cope with the general trend around the seaarea of Japan's fishing activity. Under these circumstances, the rightof coastal States to establish 200-mile zones, either as economic zonesor fishing zones, in which jurisdiction is exercised over offshore livingresources, can be said to be more or less established as internationallaw. It is doubtful, however, whether the original aim of the 200-milezone, which was to contribute to the economic development of thedeveloping countries, has been fulfilled.

One can attempt to answer this question by the statistics of the Foodand Agriculture Organization FAO! on the world catches of fish,comparing the catches in 1978 when 200-mile zones began to beestablished with catches in 1987 when most recent correspondingstatistics are available. In 1987, the main fishing nations in order of the volume ofcatches were Japan, the Soviet Union, the United States, China, Chile,Peru, India, Republic of Korea, Indonesia, the Philippines, Thailandand Norway. These were also the twelve main fishing nations in 1978.In other words, although the establishment of the 2GO-mile zonesengulfed 95 percent of the world catches of fish in these zones, themain fishing nations of 1978 retained their status regardless ofwhether a nation was developed or not. On the other hand, otherdeveloping States do not seem to have gained as much benefit byestablishing a 200-mile zone so as to make them main fishing nations.When one looks at the twelve main fishing nations individually,

1G

however, the economic effects of establishing the 200-mile zone arevaried. To take the case of Japan, in 1978, 25 percent of the catchcame from fishing in foreign 200-mile zones, but as more countriesestablished 200-mile zones, the percentage of fish caught in foreign200-mile zones was reduced to 9 percent in ten years. As a result, itis said that 40,000 fishermen have been forced out of work. Despitethese circumstances, Japan continues to be the world's largest fishingnation thanks to its efforts such as making fishing more efficient,expanding aquaculture, and continuation of fishing in foreign200-mile zones through fishing fee payment and joint venturearrangements,

Japan's annual catches of fish, however, leveled off between 1978and 1987, although among the developed countries, the U.S. increasedits catch by nearly two-fold in the ten years following 1978, andamong the developing countries, China more than doubled its catch inthe same period. Furthermore, Peru, Chile, Indonesia, and othercountries have recorded a gradual but firm increase in their catches offish. The world's total catch of fish was 93 million tons in 1987, whichwas a 32 percent increase from 1978, but a large part of this increasecame from increases in catches by the main fishing nations such asChina and the U.S. As indicated before, when one looks at the catchesof fish, it might be said that the developing countries that claimedtriumph by the establishment of the economic zones were not reallythe victors, but rather, the victors were countries like China, the U.S.,and some other limited number of countries that increased theircatches in the ensuing ten years. The EEZ is deemed to be sui generisin character, different from that of the high seas or the territorial seas.In other words, the EEZ allows freedom similar to that of the highseas as regards navigation of vessels, but a coastal State possessessovereign rights concerning the development of resources. Unlike thecase of the territorial sea, however, this sovereign right entailsobligations on the part of the coastal State. One obligation is tomaintain a species of fish at levels which can produce the maximumsustainable yield Article 41!.

Another obligation is to give other States access to fish in its zonewhen the coastal State does not have the capacity to harvest the entireallowable catch Article 62!. At the salne time, the Convention leavesroom for the coastal State's discretion to determine the allowable catchand its capacity to catch fish, and to allocate surplus in the allowablecatch to other States. On the other hand, para. 3{b!, Article 297 of theConvention provides that when a coastal State arbitrarily misuses itsrights to determine the allowable catch and its capacity to harvest its

living resources or to allocate surplus to other States, it could besubject to compulsory dispute settlement procedures. These provisionsare not sufficiently effective, however, to prevent the arbitrarydetermination of allowable catch or capacity to harvest by the coastalStates, since disputes might arise over whether an act of a coastal Stateis an arbitrary misuse of rights under Article 61 or 62, or whether itis within the discretion permitted to a coastal State.

One of the reasons why such a problem was left unsolved stemsfrom the fact that much of the negotiation during the Third UNConference was conducted in informal meetings. As a result, unlikethe case with other multilateral treaties, it would not be possible forStates to depend on travaux pleparatoires for interpretation of theConvention, Also, as further negotiation on the lSNT was rejected asa jail accompli, it was not possible to propose amendments or clarifythe meaning of various provisions. Therefore, if the Convention istaken up based on its legalistic interpretation, it would accentuate thedifference of positions and would only make international cooperationin marine resources development difficult. Rather, what is expectedof an advanced fishing nation like Japan might be to promoteinternational cooperation bilaterally and through internationalorganizations. By doing so, many developing countries could deriveconcrete benefit from the EEZ under the Convention which is, atpresent, merely a legal framework that in reality cultivates few livingresources for them.

On this point, I would like to introduce Japan's experience in theten years after 1978. During the Third UN Law of the Sea Confer-ence, Japan asserted that if coastal States were given jurisdiction overdevelopment of living resources in the EEZ, coastal States should beobliged to conserve and fully utilize living resources, and since it isnot practical to rely solely on national management by developingcoastal States, which do not always have the necessary technology anddata for such management, management should be undertaken withthe technical cooperation of international organizations or developedcountries. lt is regrettable that such viewpoints were not sufficientlyreflected in the Convention. Nevertheless, with the same intention,Japan is undertaking economic cooperation in the EEZ of thedeveloping countries through 197 joint ventures. A large part of thecooperation is undertaken in Asia and the Oceania. The actualcooperation includes fishing such as trawling, in particular shrimptrawling, aquaculture, cold storage, and seafood processing. I believethat these joint ventures contribute to economic development of thedeveloping countries by increasing seafood exports and foreign

12

currency revenues. In the future, cooperation should be extended topreparation of scientific data on resources in the EKZ and formulationof basic plans for nurturing the fishing industry through cooperationwith international organizations and bilateral technical cooperation inaddition to joint ventures.

I have already mentioned that since a coastal State has exclusivejurisdiction over resources in the KEZ, there is a danger that problemsmight surface as to the conservation and the optimum utilization ofthe living resources. On this question, I would like to add a few wordsconcerning conservation of highly migratory species. Since highlymigratory species migrate between the KEZs of multiple countries orbetween the EEZ and the high seas, over-catching in one waters isdirectly connected to the catch in other waters. Under the presentprovisions in the Convention, however, the coastal State could refuseto give consent to research on the matter in its KEZ. Therefore, asregards highly migratory species, the States concerned should preparea special agreement which wouM allow an international organizationto make recommendation not only concerning resources in the highseas but also in the EEZs.

Deep Seabed Mining Regime

In the late 1960s, the existence of abundant mineral resources suchas manganese nodules, which are rich in various metals, becameevident, and developments in exploration and exploitation technologygave rise to expectations that development of the deep seabedresources might become possible in the near future. Motivated by suchexpectations, it was declared that the deep seabed, a common heritageof mankind, was to be utilized for the benefit of mankind as a whole.To ensure that the development of the deep seabed was undertaken inaccordance with an international regime established by an internation-al convention on the basis of the declaration, the Third UN Confer-ence on the Law of the Sea was convened. This original idea isreflected in Article l40 Activities in the Area shall be carried out forthe benefit of mankind as a whole and financial and other economicbenefits derived from activities in the Area should be shared equita-bly, taking into particular consideration the interests and needs of thedeveloping States! and Article 150 Activities in the Area shall becarried out in such a manner so as to promote international coopera-tion for the overall development of all countries, especially thedeveloping States!.

Eight years after the adoption of the Convention, however, none ofthe countries that have engaged or originally intended to engage in

l3

activities in the deep seabed have ratified the Convention, and thereare no certain prospects for them to ratify it in the future, contrary tothe expectation at the time of the formulation of the Convention.

What is the reason for such a miscalculation?In the late 1970s when the Convention was being formulated, it was

expected that huge profits were to be made out of the deep seabed andthat commercial production would start in the mid-l980s. Develop-ments in the following years, however, indicate that such premiseswere misjudged, In the early 1980s, the price of metals extracted fromthe manganese nodules had begun to go down and remained sluggish,and it is predicted that the market will remain stagnant in the longterm with only temporary recoveries. In addition, the cost of researchand development for commercial production is expected to be as muchas several times what was predicted when the Convention wasformulated. As a result, at presen.t, there is no one who believes thatdeep seabed mining is "profitable business." The Group of TechnicalExperts, which was convened last summer, submitted a report to thel'reparatory Commission which estimated the commencement ofcommercial production to be twenty to twenty-five years in thefuture, Now that prospects for commencement of commercialproduction are far away, the provisions of the Convention have beenrendered completely unrealistic,

First of all, according to the Convention, the International SeabedAuthority is to be established upon entry into force of the Conventionand wiH manage the deep seabed. What is the use of State Parties'contributing substantial amounts to maintain the Authority, however,if exploitation is over twenty years away?

Secondly, according to Article 151 on production limitation, theAuthority is to allocate a share of deep seabed production based on theannual rate of increase of world nickel consumption in the most recentfifteen-year period, and no deep seabed production exceeding theallocated share shall be authorized. In the fifteen years between 1965and 1979, which was the last phase of the negotiations on theConvention, the annual rate of increase of world nickel consumptionwas 3.71 percent. Supposing that commercial production wouM startin 1990, the calculation based on the above rate of increase wouldresult in four projects eligible for production authorization, excludingthe Enterprise, The annual rate of increase between 1972 and l986,however, was only 1.58 percent, which would allow only one projectto be eligible for production in 1990, Furthermore, even if commercialproduction were to begin in either 2000 or 20l0, the number ofprojects to be authorized will still remain at one project for the

14

Enterprise and one for the other entity. Such an assumption was notenvisaged by the Convention.

Thirdly, provisions on the financial terms of contract are alsobecoming disconnected from reality. Due to the recent slump in metalprices and the rising cost of development, current prospects are thatdeep seabed production will not be economically viable, even if it isphysically possible. As part of the financial terms of contract, thecontractor is obliged to pay an "annual fixed fee" of $1 million fromthe entry into force of the contract, regardless of whether productionhas started. Under circumstances in which the commencement ofcommercial production is estimated to be twenty to twenty-five yearsin fhe future, the contracter will have to pay $1 million each yearwithout knowing when revenues will start to Aow in. Furthermore,after the commencement of production, the contracter has to pay a"production charge" in proportion to the market value of the processedmetals and a "share of net proceeds." However, in view of the presentsituation in which deep seabed mining is expected to be a costly andrisky business, it is said that the these financial burdens are too heavy,As a result, under the present provisions, the Convention regime mighthinder the development of the deep seabed. This is ironic, since theConvention was formulated with the intention of fostering sounddevelopment of the deep seabed,

This is not a full list of the problems of Part XI of the Convention,but these three points clearly show that the deep seabed mining regimeof the Convention, which intended to contribute to the overalldevelopment of the developing countries, cannot fulfill its purpose inits present form. Then, what would be the deep seabed mining regimethat would help achieve the original purpose?

One suggestion is to restrain the size of the Authority at the initialstage to a minimum and to postpone the establishment of the Enter-prise until prospects for commercial production become clear. Bydoing so, the State Parties to the Convention will be spared anexcessive financial burden. The Report of the UN Secretary-Generalon the potential financial implications for States Parties to the futureconvention on the law of the sea A/CONF.62/L.65! of 1981 reckonsthe annual administrative expenses of the International SeabedAuthority, the Enterprise, and the International Tribunal for the Lawof the Sea at $34 million and the total cost, including constructioncosts for the headquarters of these organs, at over $200 million.Furthermore, when the initial cost of the projects of the Enterprise isincluded, the total cost is estimated at nearly $400 million. At present,there are forty-two ratifications, and the total percentage of contribu-tion from these countries, according to the scale of assessment of the

15

UN regular budget, merely amounts to 4.32 percent. Considering thatthe funds for initial activities of the Authority and the Enterprise aredependent upon contributio~s of State Parties based on the UN's scaleof assessment, if the Convention enters into force with ratificationsmostly from developing countries, it will probably be impossible toestablish and manage the Authority, the Enterprise, and the Interna-tional Tribunal for the Law of the Sea to the full extent provided inthe Convention. From the standpoint of financial burden, theestablishment of the Enterprise without prospects for commercialproduction should be avoided, even if some of the industrializedcountries ratify the Convention.

Secondly, since the provision of technology, funds, and personnelfor the Enterprise is expected to be difficult, particularly during theearly stages, it would be more realistic for the Enterprise to undertakejoint ventures with a competent mining entity. As I mentioned earlierin relation to the EEZ, the joint venture is an effective means oftechnology transfer, and it would also eliminate concerns of privateentities concerning compulsory technology transfer, Other concerns ofthe private entities relating to the terms of contracts and the produc-tion limitation should be removed so as to make deep seabed mininga more attractive undertaking.

Thirdly, as regards assistance for the developing land-basedproducer States which suffer serious adverse effects, it is prematureto discuss the matter when prospects for commercial production are sofar away. It ~ould be realistic to examine the matter in light of therelevant circumstances when prospects for commercial productionbecome clear.

In order to attain a more realistic deep seabed mining regime,international coodination of States with diverse interests is indispens-able. In this connection, it is encouraging that many States seem tohave come to recognize the importance of the universality of theConvention.

At any rate, leaving the Convention without entry into forceundermines the effectiveness of the whole Convention, not just PartXI. Something must be done to change such circumstances, Thenegotiations on the Obligations of the Pioneer Investers seem to haveentered a final stage. The conclusion of this negotiation in a manneracceptable to all the Pioneer Investers has important implications forthe future of deep seabed development and will also serve as a Lydianstone in achieving the universality of the Convention. I understandthat the position of the Government of Japan on ratification is that itwill make the final decision by taking into account all relevant factorssuch as the results of the Preparatory Commission's work and the

positions of other States. If the main industrialized countries were notto ratify the Convention, it seems unlikely that Japan would ratifybecause of its financial burden. However, I personally feel that if theproblems in the deep seabed regime were resolved by negotiation ofStates concerned in the manner that I have explained, Japan wouldratify the Convention from the broad perspective of contribution tothe international society, without waiting for ratification by all themain industrialized countries.

17

COMBER,B a ax r

Joan DonoghueAssistant Legal Advisor

Oceans, International Environment, and Scientific AffairsUnited States Department of State'

I shall make a few comments concerning Ambassador Ogiso'sremarks. He emphasized two aspects of cooperation in the law o f thesea -- the resources of the exclusive economic zone and deep seabedmining. I would like to make just one point on deep seabed miningand then turn more generally to the conference theme of cooperationin the law of the sea.

First of all, Ambassador Ogiso made several interesting observa-tions concerning Part XI of the Convention. The United States' objec-tions to the Convention's Part XI are well known to you, and I won' tgo into them here. I would just simply note that those objectionsremain. Recently there have been some indications of willingness onthe part of a number of governments to address those concerns, andthese signs are eacouraginL but at this stage it is not clear that thedeveloping countries are prepared to make the kinds of fundamentalchanges that the United States would require.

While the deep seabed mining provisions of the Convention relato matters that are, as Ambassador Ogiso indicated, decades away, the

e

rest of the Convention addresses real problems that governments faceevery day as they engage in competing uses of the ocean. Beginningwith the first clause of the preamble, the Convention is replete with

pe ' among states an such matters as conserving livingresources, suppression of piracy and narcotics trafficking, respondingto marine pollution, and carrying out scientific research. I believe that

e for cooperataon has sometimes played anamportant role in shaping national policies in th

e reason for this, I think, is that ovein ese areas.

governments lIke oblagataono persuade another to take certaan stepsone state wants to

i as use ul to point to a mandate to coo rate.o cooperate. After all, a plea for

seems so reasonable that it is diffi n -- especially if it is supported by a treat r

y requarement--

obligation to cooperate also helps diffuse doa it as difficult to reject it out of hf 'l l ' beac ion, cause it provides an option that is between

%16 apakkills RO illy pat50hal, flQt ggjciao, capacity.

inaction and unilateral action. On the other hand, a government thatis being pressured by another government to take certain steps mayfind it useful to point to its obligations to cooperate to explain why itmust take actions that are going to be unpopular domestically.

Recent developments with respect to high seas drift net fishingillustrate the importance of the Convention's mandate for cooperationin this regard. In the successful efforts by the United States tonegotiate enforcement and monitoring agreements with the drift netfishing nations, we placed great reliance on the Convention's call forcooperation in the conservation of high seas living resources. Ourability to point to the Convention's cooperation mandate may havehelped us, so far at least, to restrain those in the United States whohave called for unilateral U.S. actions against drift net vessels.

The consensus UN General Assembly Resolution on high seas driftnet fishing also recalled the Convention's obligations to cooperate andcalled upon members of the international community, especially thosewith fishing interests, to strengthen their cooperation in the conserva-tion and management of living resources. While tkose from drift netfishing states can speak to this better than I, I suspect that thosegovernments found the Convention's duties to cooperate to be valuablein explaining to their publics why they have agreed to policies thatwere undoubtedly controversial domestically. I think that the recentefforts to address the problems associated with drift net fishingdemonstrate some of the concrete benefits that can accrue from theConvention's requirement that states cooperate. The world communitywas able to reach a consensus on how to address concerns about driftnet fishing, and most recently the government of Japan has announcedthat it will cease drift net fishing in the South Pacific in advance ofthe date called for in the UN General Assembly Resolution. W i t hrespect to the North Pacific, the data that will be gathered through theUnited States' cooperative efforts with Japan, Korea, and Taiwan willmake a significant contribution to the upcoming scientific assessmentand review of the effectiveness of conservation and managementschemes.

A mandate for cooperation may add less to the Convention's otherrights and obligations in settings in which it does not form a part ofa public political rhetoric, but rather simply requires one state toaccommodate the interests of another state. Ambassador Ogiso hasnoted, for example, that the exclusive economic zone has not provento be as beneficial to developing states as had been hoped. He hasurged increased joint ventures in developing states' EKZs andincreased cooperation in the development of scientif ic data. Increasedknowledge about resources in an EEZ could kelp a state to improve its

management and utilization. The Convention makes clear that a coastaIstate has jurisdiction to regulate scientific research in its EEZ..including its right to require researchers to obtain consent. Efforts b!foreign researchers to conduct research in another state's EEZtherefore pose no threat to the coastal state's sovereignty. Nonetheless,the United States' experience has been that some coastal states placemany obstacles in the way of scientific research and therefore mapdeter research that could prove beneficial to them. Lack of timel>response, for example, sometimes forces cancellation of projects.

I do not mean to suggest that those obstacles are necessaril>interposed intentionally, but instead that the procedures that accompa-ny the requirement of coastal state consent have not always workedwell in practice. We in the U.S. are encouraged by the efforts of theUN Law of the Sea Office to promote uniform national procedures taimplement the marine scientific research provisions of the Conventionin ways that we hope will become universally acceptable. These areimportant because, while a couple of scientists seeking to study theocean off of a foreign coast may not attract the same degree o'<political attention as a fishing method that has been described as a"wall of death," all of these issues are important to those concernedabout implementation of law of the sea,

Political pressures on governments to cooperate in implementingprovisions on marine scientific research, for example, may not be verystrong, An invocation of a requirement for cooperation may thereforebe less important in influencing the behavior and decisions ofpoliticians. But if the non-seabed provisions of the Convention are toremain a measure of acceptability of ocean uses, effective implemell-tation of all aspects of the Convention is important.

This brings me to one final aspect of cooperation. In the absenceof major changes in the deep seabed mining provisions of theConvention, the world community faces the prospect of a Law of t~eSea Convention that has not been accepted by some of the majorpowers. %e all share an interest in cooperating to ensure that t~eConvention's provisions are not eroded by state practice inconsistentwith the Convention, Excessive coastal state exercise of authority overocean areas, for example, threatens the balance that was struck in t~eConvention. U,S. practice has been to protest such measures as. forexample, illegal restrictions on overflight or excessive maritime claims-We have encouraged others to do so as well and to make those protestspublic.

Publication of such protests in the Law oj the Sea Bulletin is +good way for the world community to exchange views about how the

Convention is being implemented. Such an exchange avoids creatingthe impression that a legal claim has been accepted or has becomecustomary international law. This final aspect of cooperation in thelaw of the sea, therefore, is the sharing of information about the waysthat the Convention has been interpreted and applied by variousmembers of the world community.

21

COMMENTARY

Frances LaiCentre for Asian Pacific Studies

Lingnan CollegeHong Kong

First of all, I would like to thank the organizers for the opportunityto speak on this panel and especially to respond to the very distin-guished speaker, Ambassador Ogiso. During the ten long years ofnegotiation of UNCLOS III, many new legal concepts and definitionsevolved. Whether we like it or not, whether the Convention is ratifiedor not, some of these concepts and definitions are here to stay. Someof them involve the extension of jurisdiction over vast geographicalareas and over considerable resources. Ambassador Ogiso has rightlyreminded us that the whole idea of UNCLOS III originated from theattempt to reconfirm and preserve the ocean and ocean resources asthe common heritage of mankind.

Thus, he argued, states are not only given additional jurisdiction butare also obliged to conserve and utilize the living resources within it,The motivation was to help especially the developing countries toharvest economic benefits from such extensions of jurisdiction.Focussing his discussion on the EEZ and the deep seabed regime,Ambassador Ogiso pointed out that without appropriate technologyand know-how it would be difficult for the developing countries toturn such legal frameworks into concrete benefits for themselves. Heargued that joint ventures would be the best way to do so. I agree withthe ambassador's thesis and I am happy to learn that the Japanesegovernment has been operating 197 joint ventures in this respect, butI would argue further that technological transfer, including managerialknow-how and capitalization know-how, are essential to this formula.

Without such transfer and know-how, joint ventures will bringtemporary benefit but will not relieve the developing countries fromultimate dependency. It is only cooperation on an equal footing thatwill ensure a long and enduring advancement of the human race.

As for the monitoring of migratory species, it is indeed a difficvltproblem, as many of the fishermen in the region, or in the world, aresmall, unorganized groups or individuals who are difficult to monitor.As the ambassador pointed out, it is necessary to have an internationalinstitution to coordinate such fishing of migratory species, but shortof setting quotas for the entire stock, such coordination would not bevery easy to achieve.

As for the deep seabed regime, I do need some clarification andelaboration as I am not familiar with the statistics and data. Myquestion is: if the price of metal extracted from the manganese noduleshas gone down and the cost of research and development for comrner-cial development has increased several fold, making deep seabedmining no longer profitable, at least in the short term, why advocatethat the enterprise undertake joint ventures? No cornrnercial interestswill enter into a nonprofitable arrangement. Wouldn't it be better toplace a hold on the exploitation of seabed resources until the demandarises'? Even if we can have a successful joint venture with a compe-tent mining entity, wouldn't such a success further depress me&Iprices at the expense of the few poor and developing countries whoseeconomies rely on the export of such metals? I believe this is theoriginal reason for controlling the rate of production.

On the other hand, as Professor Miles suggested, the lack ofimmediate profitability of seabed mining may help to overcome theimpasse the major powers have reached in ratifying the Convention,Having heard the ambassador's discussion, I do support the suggestionto restrain the size of the Authority at the initial stage. If the estab-lishment of the Enterprise is to be postponed, ho~ever, the Authoritymay perhaps also oversee and undertake initial operations in the arearather than leaving the seabed development entirely to commercialinterests. The future Enterprise will be better prepared for paralleldevelopment in the future as outlined in the Convention.

In line with Ambassador Ogiso's discussion of the implications ofcommercial liability and international cooperation, I too observe thatthere is a similar trend towards international cooperation in many lawof the sea issues. It seems that the presence of substantial viableresources enhances international settlement and cooperation. Examplesinclude the North Sea oil exploration and the Thai-Malaysian jointventure. Whenever concrete benefits are unknown or not forthcoming,even when there are favorable conditions for cooperation, thecountries involved tend to shelve the issues for future resolution. But~here concrete profit is available, there is an urgency to resolveissues, even though temporarily, so that both can reap the benefits.

Another example of the concept of cooperation is the "package deal"approach. Advocates of various positions have mentioned provisionsof the Convention in a very fragmented way. I hope they willremember that the fairness of a clause only comes in the form of thepackage deal out of which the Convention was originally designed.Problems of abuse or of inconsistency in the implementation of theConvention may occur, but they need to be smoothed out, not handledby picking and choosing as one sees fit.

23

COMMENTAR Y

Artemy SaguiryanSenior Researcher

Institute of World Economy and International RelationsAcademy of Sciences

USSR

According to Hegel, seas and rivers brought people closer together,whBe mountains separated them. But seas bring people closer only atmore advanced stages in the evolution of productive forces. As wasrightly pointed out by the great Russian philosopher, Georgii V.Plekhanov, seas hamper relations among people at the lower stages ofhuman evolution.'

The ocean has long ago ceased to stand in the way of evolvingrelations among states. Moreover, today's world economy is inconceiv-able without the exploitation of the world ocean. Man's reliance on theworld ocean -- its role in shaping our planet's climate and long-termglobal changes, or in meeting man's needs for minerals, raw materials,and biological resources, or, indeed, in satisfying man's fast-growingcommunication requirements -- is commensurate with his dependenceon the atmosphere.

As never before, today's world is increasingly interdependent. Theinternational division of labor and the internationalization of economicactivities as well as the need for an effective mechanism to solvecurrent global problems has expanded the scope of internationalregulation to an unheard-of scale. The United Nations and its special-ized agencies alone have combined to initiate over 600 internationaltreaties and agreements, which were concluded in the post-war yearsand affected virtually every domain of human endeavor and interac-tion among governments. Javier Perez de Cuellar, the UN SecretaryGeneral, pointed out that

No nation is immune from others' action or inaction. Thus ofnecessity nations have established a network of regulation,reciprocity and cooperation.... That role of international law! is

~ I!'Mitioa {Moscow: Ehoaomlca, 198%!, p. 35.

24

increasing as the more technically advanced and independent webecome.'

The international law of the sea ranks among the fastest-evolvingbranches of international law. Throughout the postwar period aninternational legal environment has been shaping up to regulate oceanuses. The comprehensive Law of the Sea Convention was adopted bythe United Nations in 19S2 to replace conventions that had been calledupon to regulate relations among states in their marine activities.

International legal reguhtions began to emerge when needs forintercourse among states laid the groundwork for reaching agreementon the rules and regulations of such intercourse. International law ingeneral and the law of the sea in particular evolved in keeping withglobal political, social, economic, cultural, ethnic, and other develop-ments and formalized prevailing world trends and new principles ofinterstate relations.

From its very inception, international legal regulation was devisedto reinforce and expand cooperation among states, for it formalizedapproved rules and regulations governing relations -- cooperation andrivalry -- among states and among their physical and juridical personsin the most diverse domains of human endeavor. Thus, from the outsetthere existed a direct, stable, and dynamic link between internationallegal regulation and international cooperation proper.

Evolving international law followed in the footsteps of political,economic and technological changes affecting the environment forinternational intercourse, but it in turn had a strong influence on thebuilding and maturing of such an environment. In other words, badlaw applied brakes on world history-making developments while goodlaw encouraged them to proceed. Against this background we evaluatethe "freedom of the seas" doctrine that Hugo GrotiUs fathered at theturn of the 17th century as an international legal concept that playeda crucial role in promoting and speeding up world evolution, alongsidemajor successes scored in exploring and exploiting the world ocean.Today we may consider as naive Grotius's reasoning that nobody canown the oceans because they are limitless and inexhaustible. We mayalso ask whose specific interests Grotius' doctrine was devised toprotect and justify; it was called upon mainly to protect expandingDutch ocean interests, particularly in conflict with those of Britain.What is important, however, is that the Dutch scholar's brilliant workformalized the fundamental freedom of the high seas in international

¹w' Ptapecdve 19, No. 1, pp. l5-16.

25

legal terms. When affirmed in the international law of the sea, thecriterion proved crucial to converting the world ocean into "a wideroad for all nations to travel along" and to expanding a host ofpolitical, trade, economic, technological, cultural, and other tiesamong states.

kn this connection, as we define the significant role internationalcooperation has to play in the international law of the sea, we mustfirst determine whether the international legal mechanism describedin the l982 UN Convention is effective in satisfying the basicrequirements of the community of states and whether it meets thelong-term purposes of world evolution.

1n examining this problem we should also answer two otherquestions:

a! Did the factor of cooperation figure satisfactorily in thedeliberations and outcome of the UNCLOS Illa'

b! Does the text of the Convention meet the criterion of coopera-tion among states and between them and relevant international marineorganizations'

Our approach to the gamut of problems in the international law ofthe sea is contingent upon the basis of our scholarly examination. Knational interests are made absolute, we will reduce our research tosome fairly unsophisticated inquiries into ongoing developments.interpreting them only as a bitter conflict of, and efforts at coordinat-ing, such interests. But if an objective tendency for integrationrevealed by nation-sites efforts to devise an efficient machinery forregulating international relations within a historically and economical-ly evolved international system to which they agree, is used as thebasis of the present development of the international law of the sea without writing off the pressure that national interests bring to bear!,it may be relatively easy to explain many of the trends and phenomenathat would be hard to detect in the simplified pattern of rivalry amongnational interests. Historically these trends and phenomena revealdifferences between the global character of ocean uses in terms of itsscale and implications! and the disunity of nations under internationallaw.

From this perspective, the 1982 Convention s most distinguishingfeature appears to be its successful attempt to alleviate those differ-ences. The Convention finds a delicate but a viable compromisebetween individual states' desire to expand their offshore resourcejurisdiction as proved to be inevitable after the termination of WorldWar 11! and the universal need to maintain the oceans as the majormeans of world communication. The Convention enshrines generalinternational legal criteria for marine environmental protection and,

26

at the same time, provides guarantees that states' major marineinterests will be protected against unjustified interference.

The Convention includes numerous provisions that prevent thesplitting up and parceling out of the legal regime that governs theworld ocean and deviation from the universal application of its rulesand regulations.

In general, the Convention has been devised on the premise that theunity of the world ocean must be reflected in a single and universalsystem of public law and regulation.

When we say that the world ocean provides lines of communicationand plays a significant role in sustaining and encouraging world-wideintegrative trends, we should remember that in legal terms the 1982Convention expanded the scope of navigational freedoms and rightsfor both commercial and non-commercial purposes. The new Conven-tion recognizes the almost unlimited right to pass through and to flyover straits, even in situations when such straits are overlapped byterritorial waters, on the condition that those straits are used forinternational navigation.

The Convention is deficient, however, in reinforcing and expand-ing cooperation. For example, the Convention succeeded in preventingthe division of the ocean floor beyond the limits of national jurisdic-tion and proclaimed its resources to be the "common heritage ofmankind," but at the same time, it a! failed to preclude the conflictof interests between two large groups, the advanced states and thedeveloping states; and b! bypassed the issue of potentially seriousenvironmental after-effects of the development of the deep oceanfloor. Long-term international cooperation cannot be maintained oasuch a footing, nor, in the latter case, can man's physical survival beunaffected.

Although the Convention has satisfied the universal desire toharness the wealth of resources in offshore areas, it does not offer areliable international legal basis for cooperation among states inconserving and using optimally the world ocean's living resources. Itemphasizes national efforts, which have seldom proved effective onthis issue.

The matters under examination demonstrate, inter alia, the unwill-ingness of sovereign states to measure up to the challenge of our timesand to rise above their restricted national interests and to devise auniform and efficient fisheries policy. Such a conclusion is supportednot only by a law-specific study of the Convention but also by a studyof the existing system of global fisheries regulation in general.

27

When we refer to the inadequacies of the existing machinery, wedo not mean to say that some supranational, monstrous institutionneeds to be established to control the exploitation and distribution ofresources, for the world community of states has a long way to gobefore it evolves into a single quasi-national economic system.Conversely, the universal machinery designed to coordinate thefisheries policies of individual states will be superimposed on theexisting system of legal institutions that regulate worldwide fisheries.

It does appear to be utopian to try to devise a single fisheriespolicy, given the realities of today's world, But reaching agreement onour respective policies is a pressing concern if we are to conserve,efficiently manage,and optimally develop our fish stocks.

Strenuous efforts were made in the postwar period to coordinatestates fishing policies at the regional and, in particular, subregionallevels. But such efforts respond to today's rather than tomorrow'schallenges. Regional and subregional fishing agreements and organiza-tions show their special concern for conserving resources in one oranother marine area through their treaty-limited boundaries ratherthan through preserving the marine ecosystem as such.

Those deficiencies that erode legal regulation stem, of course, fromthe contradictions that are inherent in the very system of internationalrelations, a collision between the global problems faced by mankindand our continuing national, isolated approach to solving thoseproblems.

Perhaps we ought not to pay much attention to the second issueraised above. For the history of the negotiating process, dealt with ina majority of works published on the international law of the sea, isexactly a history of interaction and cooperation among states at theconference and a description of its legal outcome. We might only pointout that today's multilateral negotiations, like the Third UN Law ofthe Sea Conference, stand in need of a high level of cooperation andinteraction among participating states. Various individual states andgroups of states demonstrated their desire to bring their positionscloser together in working out provisions of the 1982 Law of the SeaConvention. The famous "gentlemen's agreement," under which votingwas requested only after every other avenue leading to consensus wasexplored and proved unsuccessful, was a unique rule of proceduredesigned to formalize the cooperative nature of the negotiations.

lt is to be regretted that, as one of the cornerstones in a would-beinternational legal regime for the world ocean was discussed at theConference, a spirit of cooperation based on reciprocal respect for thenegotiating parties' interests yielded gradually to a spirit of collectiveegoism shown by a group of developing nations that sought to

capitalize on their numerical superiority and on the USSR's thenhighly ideologized approach, in an effort to force their lopsidedposition on advanced Western countries.

The Convention often addresses itself to international cooperationfor one reason or another. According to the Index to the Conventionand to Resolutions I-IV, it makes about sixty references to a! theneed for implementing and reinforcing measures of legal regulation ininstances where the Convention's provisions fail to envision an entiregamut of likely circumstances; and b! in situations where Conferenceparticipants failed to couch in clear language international legalregulatory norms, or did not deem it necessary or advisable to do so.

The first group of reasons is what prompted the Convention tomake the overwhelming majority of its references to internationalcooperation, while the second group of reasons accounts for little morethan one sixth of their total number.

The Convention frequently refers to the need for expandedcooperation with competent international organizations. Indeed, as theConvention commenced to establish all-embracing regulation, it madeno provision for the institution of specific-purpose internationalorganizations, except for a regime governing the mining of mineralresources in the Area. The Conven.tion is known to have been designedto fit the existing system of international intergovernmental institu-tions in implementing in practice its formalized provisions.

The future not only of individual provisions in the l982 Conven-tion but of this international legal instrument as a whole is madecontingent upon the state and scope of international cooperation. Jointefforts are called for today to enable the international law of the seato encourage rather than discourage the progressive evolution of worldpolitical and economic processes.

As Oran Young puts it,

rational egoists making choices in the absence of effective rules orsocial conventions can easily fail to realize feasible joint gains,ending with outcomes that. are suboptirnal sometimes drasticallysuboptimal! for all parties concerned.'

Such a course of events may be prevented only by arriving at abalance of basic interests, rather than by railroading the interests ofone group of states to the detriment of another group's interests.

Oran R. Young, International Cooperaion. Building Rqp'nrem for Nanak Resou~ and thecnvieemcnt Bhaca and Leadon: Cornell University Preeo, l989!, pp- l-'s.

29

DISCUSSION

Toru Nakagawa Ladies and gentlemen, we will now hear the com-ments and questions from the floor.

%sea/4g S. Engeuepa I must commend the ex-Ambassador for hiskeynote speech, which shows that, although he is no longer active inhw of the sea work, he is very much attuned to what is going on. Ashe said, among other things that ought to be done to bring about agenerally acceptable Convention is a reduction in the size of theAuthority, In fact, the Group of 77 last year did particularly state thatthey would prefer a lean, cost-effective Authority, so I have noquarrel with that.

I have a problem with regard to two other points. He suggested thatwe may want to postpone the Enterprise completely until such timethat seabed mining becomes operational, What I would prefer is a"nucleus Enterprise," a small group that would be functional in termsof cooperating with a private operator. The Convention refers to ajoint venture with the Enterprise, but you cannot have a joint ventureif you do not have the other partner. This nucleus Enterprise wouMeventually become an Enterprise that may enter into joint ventures.

My second point concerns assistance to the developing land-basedproducer states. Perhaps you may not want to discuss this, since seabedmining is not going to be operational in the foreseeable future. Mypoint is that we ought to discuss it, To discuss is not to finalize. In anycase, the Convention makes provision that if and when seabed miningadversely affects a developing land-based producer state, it may applyto the Authority, which will then undertake studies to determine ifthat is so.

On the comments by the commentator Joan Donoghue: She statedhere that it is not clear whether the group of developing states is readyto accommodate the fundamental objections of the United States. Ithink the question should be the other way around. It is not clearwhether the U.S. will be able to accede to the Convention once thosefundamental objections have been taken care of. The reason for thisuncertainty is very simple; there has been no contact between the V.S.and the developing countries. Last year the developing countries statedthat they are ready to talk to the U.S, or any other country about theConvention. Unfortunately, we do not see any kind of movement.

With regard fo Frances I ai: If I heard correctly, she said that jointventures bring only temporary relief to developing countries. Yes, I

30

agree, but unfortunately, the reality is that the Enterprise may not, infact, be able to do any seabed mining on its own. Dr. Lai asks a veryinteresting question: If' seabed mining is not regarded as commerciallyviable, why should we not keep the Enterprise in the fridge? I thinkI' ll reverse the question. If indeed seabed mining is not profitable,why has there been any exploration? Why are we quarrelling about it?Why don't we just forget about it? Our feeling is that it is not as un-viable as we are made to believe.

My last comment is on Artemy Saguiryan's statement, whichsuggests a very strong quarrel, not with the Convention, but with theway it was negotiated. I think he said something like "developingcountries, with the support of the USSR, are then, from a highlyideological position, putting their lopsided ideas onto the advancedcountries." I am not sure that is what I heard, but if so, I entirelydisagree. The USSR may have been ideological, but the cooperationthat existed between the USSR and the developing countries wasmerely to emphasize the need to have a common heritage of mankindprinciple accepted. The system of negotiations that were conductedthrough UNCLOS III was such that no one country could impose itslopsided or non-lopsided ideas on anybody.

Toru Nakagawa Sir, you have asked four questions to each of the fourspeakers, so by the order of your questions, I will first ask Ambassa-dor Ogiso to answer.

hfol00 Ogiso. 'I think it may be an interesting idea to set up some"nucleus Enterprise" that may make some corporate arrangement withprivate operators. That could be one alternative. My point is whetherit is advantageous to establish even a "nucleus Enterprise" that wouldcooperate with the private operator until the price of relevant metalsgoes up and commercial viability of the Enterprise as well as theprivate entity will improve. But a discussion of alternative ideas onthis question would be welcome.

Joun Donoghue: I interpret the commentator's question with respect tomy remarks to ask whether the U.S. would accede to the Conventionif the concerns that it has articulated were all addressed. That's the$64,000 question, and I don't know the answer. There have been a lotof suggestions that the time is right to look carefully at how theConvention can be addressed, and I don't know how the currentthinking will sort itself out. The most I can say is that there are someencouraging signs. It is a difficult issue within the executive branch

31

in the U.S. government and it is also difficult to predict how ourCongrem would respo nd to various changes or proposals that might bundertaken. That is really all I can say about it.

Frances Lar'. I would like to apologize if I have not made myself clearWhen I mentioned the joint venture, I was just following AmbassadorOgiso's line of discussion. A joint venture without a certain transfeof technology and managerial know-how would be just a temporarsharing of resources; it would not really upgrade the ability of thdeveloping countries to do the exploitation themselves. With suchtransfer, however, the joint venture is on a more equal footing, andthe developing company is not kept on a dependent level. That is myargument.

Artery Snguiryac In my presentation, I meant that the USSR'sposition was based on an ideological or political position rather thanon economic considerations. Stated simply it was. What is bad for ouradversary is good for us. That position led the Soviet Union to signand support the Convention without any comprehensive economicexamination of the consequences of the Convention with respect toseabed mining regulation. I agree with you that common heritage is agood idea; this is our purpose, but it depends on how we implementit. What we face in PrepCom now is the result of this balance ofinterests. Of course, this is my personal point of view which hasnothing to do with anybody else' s.

senate Platz8der. I would like to make a comment on Professorgiso's speech, which in many ways could have been a speech b

m self. I wishy . ' to refer to your statement concerning the report of theySecretary-General on the potential financial implications of theConvention. I would like to add that, as early as 19SS, a number ofstates participating in the PrepCom asked f pd r"If I remember correctl as or an update or" this report.remember correctly, Australia asked for it first, followed by otherindustrialized countries i, 'ncluding my own. Unfortunately, the UNsecretariat has not et res ny ponded to this request, which was repeateduring the last session in Kin stono t e chairman of the PrepC' gston and was also included in the reportre er to a decision taken b mf pCom. In this connection I would like to

y my government in l986, by which itere to provide the site and the building for the tribunus t e costs for the States Parties ofwould be lowered by at l $100y at east $l00 million.

32

Mr. Ogiso stated that the financial problem is one of the majorreasons why the Japanese government is not yet ready to ratify theConvention, and the financial burden is also a problem for mycountry. Our parliament will not see itself in a position to accede to orratify any treaty if it is not clear what the financial burdens are, nomatter how large or how small. I must say that the financial burdenitself is not the only reason why my government is not ready to accedeto the Convention.

Harold Spare@ Professor Ogiso, in your comments about the fisheriesin the sea, you limited your comments to those in the EEZ, Would youcare fo comment about the high seas, where we have seen a rapiddevelopment of technology and new exploitation?

Motors Ogisu If your point is that the regulatory measures on high seasfisheries are important, and in that connection international coopera-tion should be further strengthened, I entirely agree with you. One ofthe reasons why I mainly spoke on the EEZ is that, in that respect,cooperation between the developed and developing countries willcontribute to the economic development of the developing countries.I agree with you if your point is that, from the point of view ofconservation, the appropriate regulation of high seas fisheries is alsodesirable. I wish to add that those regulatory measures in the EEZ aswell as on the high seas will have to be based upon scientific researchand scientific data.

Edward hh'les: I want to address two fisheries issues in AmbassadorOgiso's paper. The first has to do with whether or not developingcountries have derived any benefit from the notion of the EEZ. It maybe misleading, in fact substantially misleading, to measure benefitsonly in terms of catching capability. If you look at the work done byJean Carroz and Michel Savini in FAO and the work done by theSouth Pacific Forum Fisheries Agency, it is fairly evident thatdeveloping countries, globally, have derived a wide stream of benefitsfrom the concept of exclusive jurisdiction. Relative to benefits fromthe fisheries that they now control, they are substantially better offthan they were under the previous regime. Even if their catch has notincreased substantially, the total benefits derived have, in fact,increased substantially.

I would doubt, furthermore, that joint ventures are in every casethe most effective measure of cooperation in fisheries. Whether or nota joint venture works should depend upon very careful analysis by

33

both parties as to ihe potential prof itability. It wouia oe in tne interestof neither the developing countries nor the advanced maritimecountries to pursue joint ventures as the sole o" major means ofcooperation in fisheries.

Now let me switch to the tuna problem, thspecies problem. There's a very intriguing proposal in AmbOgiso's pape~ that since catches within zones may affect catchelsewhere in other zones and on the high seas, this fragmentationp luce se ere conservation problems for the highly migratory s» question- There is no doubt that danger exists, but the solutproposes that an organization be created which would makerecommendations not only for high seas but for management withinKKZs as well � is not viable. Because of the prior practice of theU.S. government with respect to tuna, people would f ind the threat o fembargo of products too difficult a memory to deal with, tp permitother countries to have management access to their own zones. Furthermore, the practice of environmentalist organizations within theU.S. to use the same punitive response that the U.S. government didin a prior period � that is, the Embargo Provision -- makes it evenmore difficult to think that countries will permit that kind of activity.So I do not think that his proposal is feasible.

Notoo Ogise' As to the first question, I said that the number ofdeveloping countries that have benefitted from the establishment ofthe EEZ is rather limited if we look at the amount of catch in thesezones. The leading fishing states, among which there are a number ofdeveloping countries, succeeded in increasing the catch of f' h th 'is in eir

s. ut or the other developing countries that were not majorfishing states, it was still difficult to increase the catch in spite of theestablishment of the EKZ.

As tothe uestion fq ion of joint ventures, doubt was expressed not onlyby the preceding speaker but also by Dr. Lai. When I refer to 190Japanese joint venture roprojects extended by the Jap ojects, I have to clarify that these are not

y Jap ~ government They are protween Japanese private corn j

t e eveloping countries. Of coumpanies and the governmental organs of

wi ring about the smooth transfer'lib ' course, to what extent the joint venturecontra .Idon ract. o not say that all of these 190 vansfer of technology depends upon the

ese entu es ap gec no ogy to the develo in c

g,, is entirely aturaing joint y, however it isgy wi shared. I only say that in a num

t h log t nsfe tuallr was actually made.

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As to tuna fishing, I recognize the difficulty for countries that havean economic zone in which those highly-migratory species move andthe need for also setting some quota in the high seas. I do notdisregard the practical problems of making such an agreement. Somekind of cooperative arrangement, however, will become necessary inthe future.

hfochgar Koruna-Atntadja I was attracted by this mention of jointventures by various speakers, including Ed Miles. I think he's correctwhen he says joint ventures are not a cure-all. I suggest that anotherterm be used in cases ~here public policy concerns are included. Wein Indonesia, in Southeast Asia, use the term joint development. Forinstance, if in resource production the question of management arisesbecause of concern for the environment or sustainable developmentresources, it is preferred to talk about joint development rather thanjoint ventures. We restrict the use of joint ventures to cooperationbetween two private entities, and here our experience has indeed beenless than fortunate. The Banda Sea agreements started with thelicensing system. Later we stopped that and went into joint ventureson a profit-sharing basis.

The more sophisticated partner always had a better deal, but it isnot his fault, because when you go out far away to make money youought to make money. Very often the fault lies with our people,because we are very laid back in Indonesia, as in other tropical islands.When we have a joint venture the local guy is happy to get a goodsalary and a car and maybe an office and a title, and he allows theforeign partner to do practically as he wishes. When a capital increaseis needed, the foreign partner says, "You know, we need additionalcapital." The local guy doesn't have capital and he says, "Well, I willbuy your shares out but you keep your name on them."

That is usually what happens. I cautioned my Japanese friends wayback not to do that. If you have a long-term interest in the develop-ment of the fishermen, it is better to teach them how to fish andbecome smarter, and make. them stealthier. If you are just out tooutsmart them, all you get is fish, and you create a lot of bad feelings.In the long run it is better to teach the local people to be smarter,catch their own fish, establish their own factories, and have their ownships, because you as a guy who is ahead in technology will alwayswin. If these local guys become richer, they will buy their gear, boats,and everything from you. And when they have money left over they' llstart buying Hondas and Toyotas, and you' ll have Japanese restaurantsall over the place.

35

%'hen I said that as a foreign minister, of course it carried someweight. I don't know whether it has been influential in changing theattitude of the Japanese in Southeast Asia but increasingly they arenow taking the long view instead of just the short view, and they getas much fish away from the country as possible. That has been ourdecade's experience with the Japanese. They are very smart people,the Japanese, you know. Once they know that their interests lie in aLong-term relationship, they wiH change.

So I suggest not to use the terminology interchangeably; use joi«vertlures for certain private types and joint developrne«s where publicpolicy concerns are involved or where one party is a state agencyofficial agency, oiL-and-gas agency, or minera.ls agency.

T'ore Nakagcnecc Thank you very much, your Excellency. I wish tothank you particularly for your very useful and very interestingadvice.

M'- Altcuut. Ambassador Ogiso has presented an excellent paper oncooperation between states, I want to comment on a few things that hereferred to, especially his view that the acceptance of the EEZ has notbenefitted developing countries as it was expected. You see, thedeveloping countries, even those that do not have Long coastlines, havebenefitted a lot, because who was getting the fish, who was exploitingthe resources, before the KEZ was accepted? Only the developedcountries could do that.

Now, for the first time, these developing countries have a 200-milezone in which their sovereign jurisdiction has come to be acceptedover the economic exploitation of the resources. Now, whether theyare joint ventures or joint developments, agreements are being reachedbetween the developed and developing countries. To say that only afew of the developing countries that have long coastlines have beenhelped is not entirely true.

Another question concerns the United States' not having acceptedthe common heritage of mankind. Whether the U.S. accepts it or not.it has already come to be accepted as, more or less, customary law- Ai>the world accepts it and by saying they do not, the U.S, is just closing.its eyes to the fact. Once the principle has come to be accepted, it isgoing to be extended in other areas, not only Antarctica, but also theenvironment and space. The whole world depends upon thesecommons and has accepted this principle, and it does not matter no~whether the U.S. specifically accepts it or not,

36

LUNCHEON SPEECH

INTERNATIONAL COOPERATION IN THE I.A% OF THE SEA:THE INDONESIAN EXPERIENCE

Mochtar Kusuma-AtmadjaIndonesian Center for the Law of the Sea

Padjadjaran UniversityIndonesia

In the following twenty minutes I would like to share with youIndonesia's experience on cooperation in the law of the sea.

The years since the coming into power of President Sueharto havebeen important for the political stability in Southeast Asia, and fromthe point of view of international cooperation in the law of the sea,the last twenty-five years have been particularly interesting.

When the new government of President Sueharto took effect in1967, af ter two years of uncertainty following the failed coup attemptin 1965, Indonesia was left with a legacy of suspicion on the part ofits neighbors as to its motives and intentions following the "confronta-tional" policies conducted in the past by the late President Suekarno.It was imperative, therefore, for Indonesia to convince her neighborsof the change of heart that had taken place. The initiative we took in1967 to establish ASEAN and SE-ASIA in general during the last twodecades has completely changed its former image.

In the field of the hw of the sea, in the context of her goodneighbor policy, Indonesia embarked upon a series of boundarydelimitation talks with her neighbors starting with Malaysia in 1968.This effort over the years resulted in no less than fifteen boundarydelimitation agreements and treaties of different kinds, not countingfisheries boundary delimitation agreements.

While we were at it, the body entrusted with boundary delimitationnegotiations was also entrusted with negotiating a land boundary,resulting in the 1974 treaty between Indonesia and the Commonwealthof Australia replacing the treaty between The Netherlands and theUnited Kingdom of 1898 on the land boundary between West PapuaNew Guinea and the territory of Papua and New Guinea. This treatywas later endorsed by the independent state of Papua New Guinea andis now known effectively as the Indonesia-Papua New Guinea Treatyon the land boundary between the two countries.

Going back to the sea, the fifteen or so agreements and treatiesinclude: �! the continental shelf boundary delimitation agreementssubsequently called the increasing seabed boundary delimitationagreements, �! the territorial sea boundary delimitation agreements

39

ia a�d Singapore, and Papua Newnotably between Indon, ' hese agreements and treaties wereguinea. Indone Th -1 d Australia, and Papua Newsia's counterparts in t e

sia Singapore, Thai an,n Vietnam and the Philippines

t s are very interesting, as they are note a reements or treaties areth strict sense of the term, I wouMbetween Indonesia and Ma'laysia onndar agreements in t e s ri

inention here the treaty tweenh' 1 gic regime and transit between peninsular+

reco nition of the arc ipe agic rr g M 1 ' and lately the much discussed IndonesiaMalaysia and East Malaysia anAustralia Treaty on oin ooJ ' tCooperation in the Timor Gap, aseabed areasouth of East Timor. ~ + fThe latter treaty is interes int ' 'nteresting because it is the first instance o an

l iinstitutiona ize orm o1' d f of a joint undertaking to explore and exp oit oil

the seabed between two countries under a jointI hllauthority especially established for the purpose. If time permits s a

Indonesia undertook her efforts to negotiate the sea boundaries'th h neighbors in the belief that "good fences make good neigh-

bors" and the success in these boundary negotiations has been he p uin restoring confidence on the part of Indonesia's neighbors as topeaceful intentions.

The second area of international cooperation in the law of the sea,in which Indonesia took the initiative and was actively engaged, wasthe Tripartite Agreement between Indonesia, Malaysia, and Singaporeon the Safety of Navigation and Traffic Separation Scheme in theStraits of Malacca and Singapore of 1977. The agreement is a goodexample of international cooperation between coastal states and userstates, in this case Japan, which is the largest user of the straits.

The story of the Tripartite Agreement is familiar to all of you.What I would like to point out here is that the agreement has found agood balance between the protection of the coastal states' interests andthe interests of international navigation, and is proof that with thenecessary goodwilL and common sense the most difficult questions canbe solved. It is fortunate that both Indonesia, as the country with thelongest coastline of the three riparian states and therefore mostaffected, and Japan, as a largest user, both have a tradition ofproblem-solving through consensus. This consensus-seeking attitude.as opposed to an adversarial attitude, in my opinion, has been helpfulin finding solutions between the competing interests of coastal anduser states. It is more in keeping with our present day world, w»c»sbecoming inf initely more compbcated and complex and has been mademuch smaller because of the advance of technology, the growt" '"

population, and our increased dependence on the sea as a source ofwealth and well-being. The results achieved by these treaties andagreements is a good example of how to strike a balance between thecoastal states' interest in the protection of their marine environmentand shipping nations' interest in protecting their shipping and naviga-tion. The position of Singapore in the history of the TripartiteAgreement on the Straits of Malacca and Singapore and TrafficSeparation Scheme is particularly interesting. The signing of thisagreement by the foreign ministers on 24 February 1977 was theculmination of a process which started with a joint statement made in1971 which stated infer alia that any rule relating to the regulation oftraffic in the Straits would be the concern of the coastal states only,and that any move to internationalize the Straits would not beacceptable.

The joint statement further declared that the safety of navigationin the Straits was the joint responsibility of the three coastal states. Italso stated that tripartite cooperation was necessary in this regard andthat a body for cooperation to coordinate safe navigation through theStraits composed only of the three coastal states would be established.The statement also pointed out that the waters of the Straits ofMalacca and Singapore do not constitute international straits, Their usefor international shipping in accordance with principles of interna-tional passage, however, was fully recognized. The firm stand in thejoint statement reflected the positions of Indonesia and Malaysia onthe matter, whereas Singapore's position was indicated as merelytaking note of the statement.

The Joint Statement of 16 November l971, described above, was aresponse to a Japanese initiative, which proposed to IMCO that aninternationally recognized traffic separation scheme for the Straits ofMalacca and Singapore be established. Prior to this, Japanese interestshad conducted hydrographic surveys of the waters in the Straits ofMalacca and Singapore and attempted to negotiate with the threeriparian states on an equal basis. The Japanese side was constituted byJapanese shipping and oil interests and did not represent the JapaneseGovernment. For this purpose the Straits of Malacca Council wasestablished in 1969. The Japanese initiative to unilaterally! conducthydrographic surveys, prompted by concern about an increase involume and density of tanker traffic through the Straits of Malaccaand Singapore, was not acceptable to the riparian states of the Straitsof Malacca and Singapore, especially Indonesia and Malaysia, whichhad previously declared the Straits part of their territorial waters. Infact, Indonesia had concluded treaties with Malaysia and Singapore in

41

delineating the boundary between the1971 and 1972, respective y,ers of Indonesia and those countries.mber l97l in wh h I dThe Joint Statement of 16 Novem r, iook strong positions, with Singapore formally taking nof

positions on the matter.It must be sou to ed t the credit of the Japanese shipping and Qjl

they be}mme aware of the strong positions theinterests that, once t eyriparian states e onh ld n the ma«er theyproved to be very cooperativein carrying out e ecisiot th decisions recommended by the technical expert ofthe three coastal states.

The Tripartite Agreement between Indonesia, Malaysia, andSingapore on the Safety of Navigation in the Straits af Malacca andSingapore and Traffic Separation Scheme of 24 February l977 wasadopted by IMCO on l4 November 1977 by Resolution A.375/Res37' X! entitled "Navigations through the Straits of Malacca andSingapore." The document has six annexes containing the details of thetraffic separation scheme and navigational aids to be installed.

The Traffic Separation Scheme came into effect in May 1980 andwas supplemented by a revolving fund for the payment of compensa-tion and damages arising out of poHution of the marine environmentcaused by accidents related to oil spills. It is an example of successfulcooperation between coastal states and shipping interests to overcomea contemporary hazard faced by nations bordering narrow and shallowStraits. It shows what can be done when expert groups from nationswork together to solve, in a pragmatic manner, a problem that in itselfis very complicated. The fact that the three ASEAN member countriesinvolved had the political wiH to solve the problem was important.Also helpful was the fact that the Japanese oil and shipping interestsinvolved were very cooperative.

The experience with the Tripartite Agreement and Traffic Separa-tion Scheme in the Straits of I}}thslacca and Singapore had a b Yprod«tin the form of an oil spiH contingency plan. This plan was laterimproved upon and provided the impetus for the ASEAN contingencyplan, formulated later. No signiTicant marine casualty has occurred inthe waters off the coast of Indonesia, Malaysia, and Singapore to testthe contingency plan, so we cannot say with certainty how it works inpractice. The important thing is that it is there and the machinery «take care of the consequences of a marine casualty or oil spill are ~nplace. What is important is that the plan has the support « theMalacca Straits Council and the shippiag and oB interests representedin the Japanese bodies involved in the navigation scheme»darrangements in the Straits of 544}gca and Singapore.

Experience with the Traffic Separation Scheme in the Straits ofMalacca and the increased activity in offshore production of oil andgas in the Southeast Asian seas have increased considerably theconcern for and awareness of the need to protect the marine environ-ment, providing the impetus for the third area of cooperation in thelaw of the sea. This indeed is one of the outstanding features in thedevelopment of the law of the sea in the ASEAN seas region. If at firstawareness and concerns were focused on the protection of the marineenvironment from oil spills and other hazards created by shipping andoffshore installation activities, this increased attention on the part ofthe ASEAN governments, shown in particular by the governments ofIndonesia, Malaysia, and Singapore, later on led to the introduction ofpolicies and measures related to the protection of the environment ofa much broader scope.

In 1985 and 1987 important decisions were made in ASEANMinisterial Meetings, respectively dealing with the protection of theenvironment and the conservation and sustainable development of marine! resources.

On 9 July l985, an agreement was signed in Bangkok by theASEAN Foreign Ministers representing their governments on theConservation of Nature and Natural Resources. Article l9 states interaIia that

�} Contracting Parties that share natural resources shallcooperate concerning their conservation and harmoniousutilization, taking into account the sovereignty, rights,and interests of the Contracting Parties concerned inaccordance with generally accepted principles of inter-national law.

�! To that end, they shall, in particular a! cooperate with a view in controlling, preventing,

reducing or eliminating adverse environmentaleffects which may result in one ContractingParty from the utilization of such resources inanother Party;

b! endeavour to conclude bilateral or multilateralagreements in order to secure specific regula-tions of their conduct in respect of the resourcesconcerned.

43

be a duty for advance notifications of pertinentThere should so af l t nitiate or make a change in, the conservationf th esource. There is also an obligation to enter i >uiiHzation or t e resour

consultation, no i iotification of emergencies, or sudden grave natu~eventsw ic may vh' h .ay have repercussions on their environment. whenever

' te i e. for sharing! Contracting Parties should engage;jomt scien i ic s' ' t ntific studies and a!sessments, with a view to facilitat,ngcooperation wi rration with regard to environmental problems related to a shar~resource, on the basis of an agreed date.

Paragraph 3 of Article l9 provides that

�! Contracting Parties shaH especially cooperate togetherand, where appropriate, shall endeavor to cooperate withother Contracting Parties, with a view to: a! the conservation and management of

� border or contiguous protected areas;- shared habitats of species listed in Appendix I;- shared habitats of any other species of commonconcern;

b! the conservation, management and, where appli-cable, regulation of the harvesting of specieswhich constitute shared resources

- by virtue of their migratory character, or- because they inhabit shared habitats.

Article 20 states that Contracting Parties have the responsibility ofensuring that activities under their jurisdiction or control do not causedamage to the environment or the natural resources under thejurisdiction of other Contracting Parties or of areas beyond the limitsof national jurisdiction.

The article further provides that

�! In order to fulfill this responsibility, Contracting Partiesshall avoid to the maximum extent possible and reduceto the minimum extent possible adverse environmentaleffects of activities under their jurisdiction or control,including effects on natural resources, beyond the limitsof their national jurisdiction.

�! To that effect, they shall endeavour a! to make environmental impact assessment before

engaging in any activity that may create a risk ofsignificantly affecting the environment or the

natural resources of another Contracting Party orthe environment or natural resources beyondnational jurisdiction;

b! to notify in advance the other Contracting Partyor Contracting Parties concerned of pertinentdetails of plans to initiate, or make a change in,activities which can reasonably be expected tohave significant effects beyond the limits ofnational jurisdiction;

c! to enter into consultation concerning the above-mentioned plans upon request of the ContractingParty or Contracting Parties in question;

{d! to inform the Contracting Party or ContractingParties in question of emergency situations orsudden grave natural events which may haverepercussion beyond national jurisdiction.

�! Contracting Parties shall, in particular, endeavour torefrain from actions which might directly or indirectlyadversely affect wildlife habitats situated beyond thelimits of national jurisdiction, especially habitats ofspecies listed in Appendix I or habitats included inprotected areas.

In a meeting in Jakarta on 29-30 October l987, the DeputyMinister of Development of Brunei Darussalam, the State Minister forPopulation and the Environment of the Republic of Indonesia, theMinister of Science, Technology, and the Environment of Malaysia,the Secretary of Environment and Natural Resources of the Republicof the Philippines, the Minister for the Environment of the Republicof Singapore, and the Minister of Science, Technology, and Energy ofthe Kingdom of Thailand signed the Jakarta Resolution on SustainableDevelopment.

The operative paragraphs of the Resolution state.

That ASEAN member countries adopt the principle ofsustainable development to guide and to serve as anintegrating factor in their common efforts.

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[I. That ASEA coopSEAN ooperative efforts be focused upo n thosecommon resourcesces and issues that affect the coinrnonwell-being o ef the peoples of ASEAN, including, but notlimited to:- the common seas- land-resources and land-based pollution;- tropical rain forests- air quality; and- urban and rural pollution.

The foregoing is a description of attempts within the ACEANframework to deal with the problem of marine! environmentalprotection in scientific and ecological terms supported by the politicalwill and policies of ASEAN member governments. As stated earlier,this concern for the protection of the environment in the ASEANregion started originally with the concerns for the protection of themar ine environment.

The fourth area of cooperation in which contributions of coastalstates in the ASEAN region are worth mentioning is in the jointdevelopment of the production of oil and gas. Mention should be madehere of the recently concluded Indonesian-Australian Treaty on JointCooperation in the Timor Gap seabed area. This agreement constitutesan interim solution of a long-standing dispute over the seabedboundary south of the East Timor, formerly under Portuguese control,now part of Indonesian territory.

As an example of a Joint Development Zone for the production ofoil and gas, the Indonesian-Australian Treaty is interesting in thatproduction of oil and gas in the Joint Development Zone is carr ied outor administered by a Joint Authority established under this treaty.Actual activities of oil and gas production are carried out by oilcompanies who act as contractors for the Joint Authority. Theseactivities are conducted according to a Mining Code especially agreedupon by the two contacting parties, which together with the ModelProduction Sharing Contract are contained in Annexes 2 and 3 whichform an integral part of the Treaty.

The Authority conducts administrative and managerial f unct»nsaccording to provisions contained in the treaty itself. It also establishe~the Ministerial Council, whichsets policy guidelines for the Autho«ty.It is the body ultimately responsible for the implementation of thetreaty. It remains to bey. 'ns to be seen how this new concept to cond uc«ilgas production in the J 'the Joint Development Zone works in actual practiceas the treat has et ty yet to be ratified by Indonesia and hence is not Yetoperative.

46

Our experience has shown that the production-sharing system is agood system for oil and gas production, as it enables the owner of theresources to have control of the production process, as management ofproduction is not left entirely to the oil company. The owner of theresources is represented by the State Oil Company in the productionsharing contract which contains the rights of obligations of thecontracting parties.

One of the interesting features is that production activities startingwith the exploration stage are based on a work program whichtogether with a budget is submitted by the Contractor to the Authorityfor approval. Provisions regarding protection of the environment andmeasures to safeguard the sustainable development of the resources arebuilt into it, We like to think that with the production-sharing system,we can, with some justifications, speak of a rational management ofoil and gas resources instead of mere extraction of oil and gas.

The fifth area of international cooperation involves living resourc-es, After a cautious policy spanning a period of almost twenty yearsof limiting exploitation of its living resources by foreign fishinginterests because of her disappointing experience with the Banda Seafishery agreement, Indonesia has gradually allowed foreign privatecompanies to exploit its living resources. This is done either bylicensing or by joint venture, and at present fishing operations in theIndonesian EEZ is conducted mainly by Korean and Taiwanesevessels. The recent understanding between the Indonesian and Thaiheads of governments to have cooperation between the two countriesin fisheries is an important step in Indonesia's plan to share its livingresources in the EEZ with its ASEAN neighbors. It is a wise decision.The Indonesia and Thai situations with regard to fisheries are mirrorimages of each other.

Indonesia has an abundance of living resources in its large marinespace and a !ow capacity to exploit them. Thailand, on the other hand,has an over-capacity of fishermen and vessels and an overexploitedsmall marine spaces. With the good relationship existing betweenIndonesia and Thailand, I am sure that an arrangement can be workedout to the mutual benefit of both countries.

In 1988 Indonesia signed a Memorandum of Understanding withAustralia on Fisheries, which replaces a similar agreement signed inl 978,The traditional fishermen of the eastern part of Indonesia havesome difficulty in adjusting their long-standing habits and way of lifeto the provisions of the new agreement, and some solution should befound that would not victimize them. Thought is being given to

47

engage these people in the aquatic or marine tourism projects that zr<being developed in these areas.I hope that the foregoing has convinced you that claims f,extended jurisdiction of coastal states over their adjacent sp~ Qpnecessarily lead to the exclusion of the pursuit o f outside i�t<w~H-be'ng of the international community, but that, on the contthe preservation of the marine environment, safety 0 f navigat,' �suswnable development of marine resources may, in fact, bserved in a rationally-managed marine space than unsystem of unbridled freedom of the seas.

SESSION II:

INTERNATIONAL NAVIGATION

THE RELATION BETWEEN USER STATES AND COASTALSTATES WITH RESPECT TO INTERNATIONAL NAVIGATION

Dalchoong KimInstitute of East and West Studies

Yonsei UniversityRepublic of Korea

and

Jin-Hyun PaikInstitute of Foreign Affairs

and National SecurityMinistry of Foreign Affairs

Republic of Korea

Introductioe

Up to the rniddle of this century the traditional pattern of jurisdic-tion in the ocean was one consisting largely of high seas, free for allStates to use, with narrow bands of territorial waters over whichcoastal States exercised complete sovereignty, subject ta the right ofinnocent passage by foreign vessels. This rather simple picture,however, has been fundamentally changed in the latter half of thiscentury. Beginning in 1945, the movement to widen coastal Statejurisdiction over its adjacent waters and seabed began in earnest. TheTruman Proclamation of 1945 precipitated a pent-up desire of coastalStates to claim jurisdiction over wider areas of the world oceanadjacent to their shores. Sometimes characterized as the process of"creeping jurisdiction," maritime claims have everywhere grownspatially extensive, functionally inclusive, and jurisdictionallyexclusive. A central purpose of ten years of negotiation in theUNCLOS III was to put a stop to this process of creeping jurisdiction,It remains to be seen whether the Conference eventually achieved thatpurpose. At present, the Convention adopted provides variousmaritime zones with different jurisdictional competencies reflectingthe attempts to bahnce two competing interests, that is, the "exclusive"interests of coastal States and the "inclusive" interests of user States.

Within the closed waters under such maritime zones are most of themajor ocean navigation routes. This paper is essentially concernedwith how the two competing interests mentioned above are accom-

rnodated in respect of navigation in the new law of the sea. The papercan be divided into two parts.First, it assesses the regime of navigation in the territorial sea andinternational straits.' Particular attention will be paid to the relation-ship between coastal States and user States rnaritirne States! withregard to two specific categories of navigational controls -- that is.innocent passage in the territorial sea and transit passage in interna-tional straits. A reference point for the assessment is the 1982 UHConvention on the Law of the Sea hereinafter LOS Convention!.Although the Convention has not yet entered into force, manyprovisions are considered to be declaratory of existing or emergingcustomary international law, binding upon all states.

After examining the relationship between coastal and user states asreflected in the Convention, attention will be drawn to the watersaround the Korean peninsula. 'The paper examines how two Koreas.namely the Republic of Korea hereinafter South Korea! and th.eDemocratic People's Republic of Korea hereinafter North Korea!regulate navigation in their coastal zones. Four most salient issueswhich could seriously affect the navigational interests of foreig,xlvessels in the coastal waters of two Koreas will be identified and the irvalidity assessed in terms of the LOS Convention.

lnnoteat Passage through the Terrltorlal Sea

The LOS Convention provides a delicate balance between the righ tsand duties of coastal States and foreign ships user States! with regardto navigation in the territorial sea.A foreign vessel enjoys a right of innocent passage through teaterritorial sea of the coastal State. After providing that passage isinnocent as long as it is not prejudicial to the peace, good order, wgsecurity of the coastal State, the LOS Convention goes on to enumerateactivities that are considered prejudicial to the peace, good order. mrsecurity of the coastal state.' Such enumeration clearly indicates tKmt

Streite ueed for international navigation do not belong to a category of maritimeaonee. article S4 of the LOS Convention providee Chat the regime of paeeage throughetr cite ueed for International nevigation eheii not in other reepecte affect the legal et at ueof the wltere forming ouch etraite.

2Losc. Art. 19. Twelve euch ectivitiee are enumerated. The 1989 Uniformtnterpretation of the Ruleeof international Law governing Innocent Peeeage between theU.S. end USSR etatee that Art. l9 '0! eete out ea exhortative liat of ectivitiee Chat ma uh}render paeeege not innoceat. See $4 ANIL %40 �990!.

what makes passage innocent or non-innocent depends not on thecharacter of vessels or the nature of cargos vessels carry but on theirconduct during passage. Thus the coastal State is not allowed todetermine the innocence of passage in terms of the nature of vesselsor cargos. This finding is in line with the notion that the right ofinnocent passage applies to all ships, including warships and othergovernment ships operated for noncommercial purposes, or shipscarrying nuclear or other inherently dangerous or noxious substances,

The right of innocent passage for warships has been a controversialissue and coastal States have been reluctant to permit passage withoutprior authorization or at least notification. State practice remainsconflicting, too.' There is little doubt, however, that under the LOSConvention "ships" of all States that enjoy the right of innocentpassage include warships. Scrutiny of the draft history of the relevantprovisions in the UNCLOS III as well as the contextual interpretationof the Convention clearly testifies to the presence of such right forforeign warships.

It needs to be mentioned, in this regard, that there is a specialprovision for submarines and other underwater vehicles. That is,submarines and other underwater vehicles are required to navigate onthe surface and to show their flag in the territorial sea,' The provisionshould be understood as designed to regulate not the type of vesselsbut that of passage, if not the type of conduct during passage.

From the same line of reasoning, passage must be continuous andexpeditious, and includes stopping and anchoring only insofar as thesame are incidental to ordinary navigation or are rendering assistanceto persons, ships, or aircraft in danger or distress.'

On the other hand, within its territorial sea the coastal State hascertain carefully-prescribed rights.

The coastal State may adopt laws and regulations relating toinnocent passage with respect to, broadly, navigation, protection ofcables and pipelines, fisheries, pollution, scientific research, and

A general eurvey of State practice indicatea that until very recently, there ie littieevidence other than that of free and unconteeted paeeage of foreign warehipe. %'ith theemergence of many newly independent Statee eince lQSS, however, a eignificant number,and perhape a majority, of Statee require prior authoriaation or notice for the paeaageof foreign warahipe.

LOSC, A*. %0.

LOSC, Art. 18 R!.

f g immigraf ion and sanitary iriatters.' hfeed less tp say92

such laws an reguh1 d regulations must be in conformity with the prowl

of the onven ion af h C ention and other rules of internationa! lawState must give due publicity to all such laws. These laws homay not affect the design, construction, manning, or equipment fforeign vessels unless they conform to genera!ly accepted internstandards, but othe~wise foreign ships are bound to complY with hThe coasta1 State may require foreign ships to use such sea la�t f'cseparationschemesasitdesignatesor prescribes In parthen transiting the territorial sea, nuclear-powered ships andcarrying nuclear or other inherently dangerous or noxious s be requhed to carry documents and observe special preca tmeasures established for such ships,'Finally, two general provisions stand as a broad guideline in case ofconflicts between the rights of coastal States and user States.First, the coastal States have general duties not to hamperinnocent passage of foreign ships except in accordance with theConvention.' In particular, in applying laws and regulations, thecoastal States shall not impose requirements on foreign ships whichhave the practical effect of denying or impairing the right of innocentpassage or discriminate in form or in fact against the ships of anyState or against ships carrying cargoes to, from, or on behalf of anyState.Second, the Convention recognizes the rights of protection of thecoastal State. Thus the coastal State may take the measures necessaryto prevent passage that is not innocent. In particular, the coastal Statemay, without discrimination in form or in fact among foreign ships,suspend temporarily in specified areas of its territorial sea theinnocent passage of foreign ships if such suspension is essential for theprotection of its security, inc1uding weapons exercises."

To sum up, innocent passage is a delicate form of accommodationbetween the demand of unimpeded maritime communication and the

LOSC, Art. Xl.

LOSC, Art. 2R.

Lose, Art. ss.

LosC, hrt. N.

'Lose, m. ss.

interests of coastal States. The relationship between coastal States anduser States, therefore, should be approached from the perspective ofbalancing the two competing interests of safeguarding internationalnavigation and ensuring the security of coastal States.

Transit Passage in International Straits

It is estimated that the extension of the breadth of the territorial seato a maximum of twelve miles would put 116 straits of the world usedfor international navigation under the sovereignty of States borderingthose straits strait States!." Given the importance of these straits forinternational navigation, it was natural that the maritime States wouldnot accept such a consequence without their navigational rights beingsecurely insured. For them, obviously, the right of innocent passage,with many uncertainties over the meaning and condition of innocence,would be insufficient.

The introduction of the concept of transit passage through, under,and over these straits was an effort to safeguard the freedom ofnavigation for the user States while providing for some regulatorypowers of the coastal State in such straits.

All ships and aircraft! enjoy the right of transit passage in straitsused for international navigation between one part of the high seas oran EEZ and another part of the high seas or an EEZ. While theConvention does not provide specific criteria for determining "straitsused for international navigation,"" the regime of transit passage doesnot apply to the following four types of straits.

First, straits through which there exists a route through the highseas or through an EEZ of similar convenience with respect to naviga-

M. Reisman, "The Regime of Straits aud National Security: An Appraisal ofInternational Law Making", 74 AJ1L 48-76 �980!,

t The ICJ, which firs employed the phrase "straits used for international navigation"in the 1949 Corfu Channel Case, mentioned, ae the decisive criteria for such designation,the geographical situation of the strait as connecting two parts of the high seas, andthereby being useful to inCernational navigation, end the fact of its being used forinternational navigation. See Corfu Channel Case, ICl Report, 1949. However, it has beensubmitted that any strait connecting Cero parts of Che high seas/EEZ with one another,or the high seas/EEZ with the territorial sea of a foreign State, is, by one another, or thehigh seas/EEZ with the territorial sea of a foreign State, is, by definition, useful forinternational navigation, and therefore should be considered as an international strait.See L. Alexander, JVavigational Resuicuons wiNin the New LOS Codex@ GeographicalImplicaions for the United Starer, 1986, p. 184.

55

tional and hydrographical characteristics." Second, straits in whichpassage is regulated in whole or in part by long-standing internationalconventions in force specifically relating to such straits," Third,straits formed by an island of a State bordering the strait and itsmainland.~ Fourth, straits used for international navigation betweena part of the high seas or an EEZ and the territorial sea of a foreignstate."

Transit passage is the exercise of freedom of navigation andoverflight solely for the continuous and expeditious transit of thestrait between one area of high seas or economic zone and another, orin order to enter or leave a State bordering the strait." A centralprovision in determining whether passage is transit appears to be thatforeign ships are under a duty to refrain from any activities other thanthose incidental to their normal modes of continuous and expeditioustransit unless rendered necessary by force majeure or distress,"Passage without delay," prohibition of the use or threat of forceduring passage against the sovereignty of strait States," or prohibitionof unauthorized research and survey activities" should be understoodin such context. By the same token, submarines and other underwatervehicles, unlike in the territorial sea, may not be required to navigateon the surface and to show their flag, because their apparent commonpractice of transiting some international straits while submerged seemsto be recognized in the above requirement that passing vessels engage

' See LOSC, Art. 56. In such straits, there exists freedom of navigation through thehigh seas/EEZ route, and the right of innocent passage through the territorial seas whichlie on either side of it,

' See LOSC, Art. 86.

uSee LOSC, Art, $8�!,

See LOSC, Art, 46. In the third and fourth cases, there exists a non-suspendableright of innocent passage.

LOSC, Art, 88 Q!,

~ LOSC, Art. S9�! c!.

' LOSC, Art. 89�! a!.

LOSC, Art. 89�! b!.

LOSC, Art. 40.

56

only in activities incident to their normal mode of continuous andexpeditious transit.

On. the other hand, strait States may legislate for passing vessels inrespect of the safety of navigation, the prevention, reduction, andcontrol of pollution, fishing, and the loading and unloading of anycommodity, currency, or person in violation of local customs, fiscal,immigration, or sanitary regulations." The scope of laws the coastalState may adopt in relation to transit passage is obviously narrowerthan that in relation to innocent passage, These laws must notdiscriminate in form or in fact among foreign ships.~ In addition,international standards are imposed on the first two matters, that is,the safety of navigation and pollution control. Therefore, the lawsof the strait States on these matters must be in conformity withgenerally accepted international standards.

The strait States may designate sea lanes and traffic separationschemes in the straits. These must first have been adopted, however,with the approval of the strait States, by the competent internationalorganization -- that is, the International Maritime Organization.~

The LOS Convention provides that any activity which is not anexercise of the right of transit passage remains subject to the otherapplicable provisions of the Convention. Accordingly, any activityother than those incidental to the normal mode of transit would bringthe ship in the strait under the regime of innocent passage, in whichcase passage could be denied for want of innocence. However, transitpassage shall, under no circumstances, be suspended.~

In sum, transit passage allows less coastal State control over passingvessels than does innocent passage, but falls far short of granting thesame freedom of navigation as would have existed had the waters ofthe straits constituted high seas. The most important advantagesmaritime States would get under the regime of transit passage incomparison to that of innocent passage are: first, freedom of over-

LOSC, hrt. 42�!.

WOSC, ~. 42�!.

+LOSC, Art. 39�!.

LOSC, Art. 41.

LOSC, Art. 44.

57

b e ged pasSage Of SubinarineS; and third, nonflight; second, submergsuspension of passage.

Practice of Two Koreag

ln the fol owing ph f ll 'ng part the paper addresses briefly four salient iss�which cou seriouh' h ld eriously affect the navigational interests of foreign shi>in the coas wa eh astal waters off the two Koreas: that is, the straight baselineof North Korea in the East Korea Bay; the right of foreign warshi>to innocent passage through the territorial seas of the two K oreas th<right of' Passage in two straits adjacent to South Korea; and finallythe military boundary zone claim of North Korea. Special attentionwill be Paid to the discrepancy, if any, between the claims orregulations of these States and the provisions of the LOS Convention.

The Straight BaseLine of HortII Korea ia the East Korea BayAs a boundary between internal ~aters and the territorial sea, and

as a line from which the extent of a coastal State's territorial sea andother maritime zones are measured, the location of the baseline isparticularly important to the navigational interests of user States. Thestraight baseline of North Korea in the East Korea Bay, in this sense,deserves some attention. Although North Korea has so far made publicnone of its maritime jurisdictional claims,» their principal contentscan be found in various sources. According to these sources, NorthKorea adopted the straight baseline on the eastern coast connecting thecity of Kosong and that of Kimchaek, thus comprising the East KoreaBay in its internal waters." The straight baseline thus drawn is almost200 miles long, and substantially departs from the general direction of'the coast see Map I!,

Both States aigned the Convention but have yet to ratify it.

North Korea haa aoa haa ao far prcclaimed three maritime jiiriadjctiona, namely the l2-mileterritorial sea in 1955 the1977.

, the spp-mile economy aone and the military boundary aone in

or inetance, U.S. Navy Department, Maes/ of lnrcrrraionol Alanamc Lcnv. 1968 pp-~ «n ~ Regime of the Pacific Ocean, M~

, No. 7, 197p, p, 97,

However, it ia by no meana clear «he'~�kind bein to employed in the North Korean baaelin

ar «he'» � thia atraight baeeline ia the only on««+e ayatem.

Al h h 't is not doubted that the coastal State has a right to drawAlthoug itisno

a straig t ase inht b%ellne where necessary it does not have unfettereddiscretion as to when and how it draws such a line. Above allstraight baseline is permissible in localities where the coa tl'ndeeply indented and cut into, or if there is a fringe of islandsthe coast in its immediate vicinity." Considering the cond;t,-governing the drawing of straight baselines, it seems difficult t«da more irrelevant case to apply such a system of baseline than thextern c Nt of North Korea, which is simple and monotonous withfew offshore islands.The other possibility of justifying the North Korean baseline maybe a clam to a bay. Considering that North Korea spec~focally usedthe name "East Korea Bay" in its territorial sea claims, it might haveused the straight baseline as a closing line of a bay. One quick look ata map, however, wouM be sufficient to conclude that the East KoreaBay is far from a normal or natural bay, which international lawprecisely defines in terms of the indentation the semicircle test! andthe length of the closing line the twenty-four-mile rule!.

Since it fails to meet the requirements of a normal bay, a questionstill arises as to whether it can form a historic bay. It is generallyacknowledged that under customary international law" a State mayvalidly claim a title to a bay on historic grounds if it can show that ithas for a considerable period of time claimed it as internal waters theaffluxion of time! and effectively exercised its authority therein effectiveness!, and that during this time the claim has received theacquiescence of other States acquiescence!, It seems very doubtfulthat the East Korea Bay would faH under the category pf a historicbay.

In sum, it is highly unlikely that the straight baseline drawn in theEast Korea Bay could be justified in terms of the provisions of theLOS Convention as well as customary rules.

LOSC, Art. 7.

32m~~he LOS Conventiou rIBI R ridepteride a dear ale oa the de5aiCion qf g hiat4ric bay'

Innocent Passage of Foreign 8'arshipsAccording to the territorial sea law of South Korea, a foreign

vessel has a right of passage so long as its passage is not prejudicial tothe peace, good order, or security of South Korea.~ Activities whichwould render the passage of foreign vessels non-innocent arespecified, incorporating the twelve items listed in Article l9{2! and thesubmerged navigation of submarines provided in Article 20 of theLOS Convention. In addition, foreign ships may be temporarily andlocally denied innocent passage for security reasons.~ For foreignwarships and non-cornrnercial government vessels, however, advancenotice is required for passage.

According to the North K.orean territorial sea proclamation,~foreign warships must have prior approval from the North Koreangovernment to enter its territorial sea. On the other hand, the innocentpassage of foreign merchant ships through the territorial sea seems tobe permitted. Throughout UNCLOS III, North Korea persistentlyrefused to recognize the right of innocent passage of foreign warshipsthrough the territorial sea and required prior authorization.

Such positions of the two Koreas obviously depart from that of theLOS Convention. The tenability of their positions would be difficultto maintain if the two States eventually ratify the Convention.

Right of Passage in Straits Used for Internationa/ %ligationThere are two important "international straits" in the adjacent

waters of South Korea; that is, the Korea Strait situated betweenTsushima Island on the east and the southeastern coast of the Korean

Law No. 3057, Territorial Sea Law hereinafter TSL!, entered into force on $9 AprB1978. For its English crenelation, see Taritorial Sce Law and Its Keforeenaret Decrees of theApuÃic of Korea, Ministry of Foreign Affaire, Seoul, 1079.

TSL, Art. 6�!.

TSL, Art. 6 %!.

PSL, Art. 6 S!, TSL; EnforeeaWnt Decree, hrt. 7.

~TSL, Art. 6 l!,

See JQpAR.

61

he west, an d the Cheju Strait between the southwest-peninsula on the ~ 1 tf e north and Cheju island ont of the Korean peninsu a on ese p d 3!. The former being twentythe south se psee Maps 2 an '1 the application of the twelve-mileand the latter twelve mi es, e a

ral States would leave no high seas pr EpZterritorial sea by the lottoh J an extended its territorial sea limit from thr~the straits. Although apan exb lgating a new Law on the Territorial S a,�to twelve miles by promo ga ingin 11977, it reserved its app ica id 'ts application to certain designated areas inc uding

the western channe o t e sh 1 of the Tsushima Strait that is, the Korea Strait!for the time ing. obe " Following the JaPanese Practice, South Ko,eaapplied a three-m' e imi'ed h -mile limit to the Korea Strait while it otherwiseextende its terri orid d 'ts territorial sea to twelve miles. As a consequence, theK S 't as left with a high seas corridor l 1.8 miles w>de. withinKorea Strait was e withis corridor, the high seas freedoms of navigation and overojghtwould prevail, assuming that it is a usable corridor, and there wouldbe no question of imposing a rule of transit passage. Needless to say,the regime of innocent passage would apply to the three-mileterritorial seas of respective States."

On the other hand, the Cheju Strait, which is twelve miles in width,now falls entirely within the territorial sea of South Korea. Thus aquestion arises whether the Cheju Strait would amount to a strait usedfor international navigation where the regime of transit passageprovided in the LOS Convention applies. ln particular, the geograph-ical situation of this Strait raises a question of applicability of Article38 l!, which reads that the right of transit passage is excepted in astrait if the strait is formed by an island of a State bordering the straitand its mainland "provided there exists seaward of the island a routethrough the high seas or through an exclusive economic zone ofsimilar convenience with respect to navigational and hydrographical

Fhere iI eotne confusion about the name Korea Straià Por detaBe, ace C H- Par"'The Korea Strait", lnsrssuuiossal Nyvj~ goc4 usaf Jhpatg Ahgagft, 1988, pp. 1Ts- 174.

Art. 0 of Territorial Sea Law. Por the En8hah trauelation, eee S, Yauai an~ K.Aaamura, "Japan and the ESnerging Order Of the Sea - TWO Maritime I.awe or Japan'iJapaersr AnmsAsl 0f Lnreswiona! Lee, 1%7, pp. 92-0S.

'Thua, the Korea Strait wouM amount to the nret ~ Of international etrastesnentioned above. See supra.

4~a ne iocatiun of the Cbeju Strait, connecting two parte of the hi@ aeae, +bvso~l>rnalsee thia Strait one ueecl for iuterruttional navigation.

62

Map 2

63

See o~ arm.

Q~~ ga

,IL~~cov~ Am'

34 W

KOREA,/'/

!

Ri

0

Republic of KoreaMaritime Claims

f

~ ~--.. ~coA gf /Sohuksan-dp ', + g Tgvsh

gt~QhC"Seelwf ~~ /' E~%fining A16y 'E

T

Eau'chgjj~

characteristics." If the Cheju Strait amounts to a strait envisaged inArticle 38 I!, non-suspendable innocent passage, not transit passage,would apply.

In determining whether the Cheju Strait belongs to such a strait, itwould be necessary to clarify what would constitute a route of similarconvenience," Two criteria seem to be relevant to determiningsimilarity in convenience: first, the condition for navigation of thealternative route, such as water depth, weather, prevailing currents,navigational aids, and so forth; and second, the extent of detour thealternative route may cause. The application of these criteria indicatesthat the Cheju Strait may be close to one provided in Article 38 I!.

Enforcement Decrees of the Territorial Sea Law of South Koreaprovide that where the waters constitute a strait used for internationalnavigation in which there are no high sea areas, foreign warships andnoncommercial government vessels are not required to give priornotice for passage. Compared to the right foreign ships enjoy in theterritorial sea, such is the only different treatment applicable to thestrait used for international navigation. Whatever the nature of theCheju Strait may be, be it a strait envisaged in Article 37 or 38 l!, theprovision of the Enforcement Decrees departs from those of the LOSConvention.

Military Boundary Zone of NortIf KoreaIn 1977, North Korea proclaimed the fifty-mile fnilitary boundary

zone for the purpose of defending its national interest and sovereignty see Map I!. The location of the zone is up to fifty miles from thebaseline of the territorial sea in the East Sea or the Sea of Japan! andto the boundary line of the economic zone in the West Sea or theYellow Sea!.~ In this zone on the sea, in the sea, and in the sky!,

Apart from the question of "eimilar convenience, according to one view, it isrelevant whether the mainland bordering the atrait ie fringed with small islands, thusresulting in rather protruding baaelinee. See L. Alexander, 'Exceptiona to the TransitPaaeage Regime: Straite with Routee of 'Similar Convenience", 18 Ocean Development aedInternational Law 480 �98'F!. Aa far ae the validity of drawing apecific baeelinee can bemaintained, however, there ie no reaeon to deny the applicability of Art. 58 l! regardlessof the way a particular strait ia formed.

Enforcement Decree, Art. 4.

According to a South Korean newepaper, the military boundary aone in the EaatSea should be one connecting the following four pointe: Koeong, which ie near to the eastend of the Armietice Line; Najuri located on the mouth of Tumen River; and on theinternational boundary terminus between North Korea and the USSR, 41 46'1S" N and

65

l mation acts of foreigners, foreign militarttp}zp~ are prohibited and civilian shi~cordin to the proc ama 'o

vessels and foreign m itary pnd ci ' l ed to navigate or fly only with appropand cind civilian planes al ow oval." In addition, civilian vessels and c}yiagreement or appro . n a iare not allowed to conduct acts forplanes in the xone are nots ' fringing upon economic interests. Thus the m,l;purposes or acts in ringin' d' t'onal terms appears even nore exclusive than thzone in jurisdictiona eterritorial sea w ere' l h e foreign vessels are entitled to innocent passag

The idea of establishing the maritime zone for defense «se �,.purposes can obe often found in State practice, especially in t;rnwar or during states of belligerency short of war. Although;t,.of the fundamentals of the law of war at sea that neutral shipping mynot be denied the right of navigation on the high seas, this ideabe just~fied as an exceptional measure of self-protection in t memergency. The rationale for such an idea may be found in A t' lof the UN Charter. Needless to say, however, the conditions set forthe application of Article 51 should be met. In this sense, the idea ofa permanent defense zone is inherently difficult to accept. Currentinternational practice also appears to be skeptical of the idea of asecurity zone, except perhaps as a temporary measure that can bejustified by the concept of self defense.

The military boundary zone of North Korea seems to be far fromsuch a case. The zone is permanent, and its jurisdiction even moreexclusive and extensive than ihe territorial sea. The recognition ofsuch a zone would be equal to that of territorial sovereignty, thuscritically affecting the freedom of navigation in the high seas oreconomic zone. It seems difficult to find any justification for theestablishment of the military zone of North Korea under the provi-sions of the LOS Convention as well as current State practice.

Co ncl tIsioo

The brief analysis carried out above shows that the four claims orregulations, relating to the East Korea Bay baseline limitation to theright of innocent passage of foreign warships and to passage throughKorean straits, and assertions to a fifty-mile military boundary zone,are difficult to justify under the provisions of the LOS Convention orcustomary international law. Since the two Koreas signed the Conven-

Mao~8 N~<mw~m.s ea wee, i9s p~mt r l»r.

or the English teXt, ace The p+Qgg I KIQggj to +Qgggt gQf 7

tion, it appears that before ratifying it, they need to review carefullytheir positions on these matters, and modify their domestic legislationtp conform to international law.

67

Oo>KRATIOg Ig SHIPPING FOR THEINTERNATIONAL CNNKTIES

Ivette Ng- JaenInternatioaa! Maritime

Satellite Organization NMARSAT!

990s 11 be a critical decade for the !aw of the seaThe 1990s will be a cri 'd ted 'n 1982 almost eight years ago, the Conventionhaving been adopt inhas not yet enter in ot ed canto force. It is my aim in this paper to identifywhat I be!Ieve are ebel' the four ma n spheres in sh3pping where international cooperation wial t' n will be crucial during the nineties. In the processI shall also strive to underscore my belief that if progress is achiev~with regard to shipping problems during the coming years, the pros-pects for the law of the sea wil! improve proportionally.

The areas I wish to consider ia this paper are: 1! pollution, p! theimplementation of International Maritime Organization IMO! standards, 3! communications, and 4! maritime training. I will discusspollution first, however, because it is the most notorious from thepublic's point of view. The others become salient issues only due tothe recurrence of shippiag's worst side effects -- casualties that ress!tin the sad loss of human lives or in incidents of marine pollution.Effectively handled, progress achieved in all four areas can and shouldserve the more important goal of promoting the entry into force of thelaw of the sea, because the Convention provides the ideal frameworkfor guiding global efforts to preserve aad protect life and the marineenvironment. Had UNCLOS been ia force today, fewer pollutionaccidents aad reduced losses would be the norm.

Intro{!uct!on

Despite the fact that shipping has managed to remain a very privateindustry most of the time, oace ia a whi!e events force outsiders toconcentrate their attention oa mariae issues. It is indeed unfortunatethat only when television cameras bring to life the drama surroundingshipping casualties are people willing to stop and pay attention.

During the !960s and !970s, a series of major shipping casualtiesbrought about iaternatioaa! concern, not on!y for the safety of crewsand passengers, but also for the environment -- particularly themarine environment. One accident ia particu!ar immediately comes tomy mind: the casua!ty of the Amoco Cadiz in Msrch 1978, the world'ssecond largest oil pollution incideat, when 1.63 million barrels of

Iranian crude oil were dumped into French waters. I actually beganmy shipping career as a result of that oil spill, when I had to representroy country, Panama,, at the 35th Session of IMO's Maritime SafetyCommittee. At the time, I quietly watched the films, listened to thehorror tales, and sensed the anger and impotence of my colleagues inthe French delegation. Although new to the post, because I was agovernment official, I strongly felt I had to shoulder some of theresponsibility for changing the status quo.

pn and off during the 1980s, worldwide attention centered onseveral major marine casualties because of the great loss of life orserious threats to the marine environment associated with them. Withrespect to the former, I must specifically mention a couple of ferryaccidents. The Herald of Free Enterprise was a P&O vessel thatcapsized while leaving the port of Zeebrugge in March 1987. Manypassengers were killed and the accident made British legal historybecause it was the first time a charge of corporate manslaughter hadbeen brought against a company. This casualty so moved internationalshipping circles that IMO has recently amended Chapter II of theInternational Convention for the Safety of Life at Sea {SOLAS! 1974Convention. The other incident worth mentioning took place early thisyear, and it involved the death of more than one hundred passengerswhen the ferry Scandinavian Slar caught fire.

With respect to pollution we must also mention some of the mostrecent disasters. Media headlines still carry stories in the aftermath ofthe largest oil spill in history, the one that took place in 1989, whenthe Exxon Valdez spilled 11 million barrels of Alaskan crude oil intoPrince William Sound. Then, only last month, we witnessed the fiercebattle tp prevent major pollution of the Galveston-Texas coast afterthe explosion on board the 141,000 dwt tanker Mega Borg.

People from all over the world and from virtually every walk of lifefelt and even expressed concern with respect to the loss of lives andthe damage done to the marine environment as a result of theseshipping accidents. Obviously, such vocal expressions of concern andoutrage are good to awaken the international collective mind. But suchexpressions are not enough. Something better must be done with andin shipping to ensure that casualties resulting in a massive loss of livesand/or destruction of the marine environment do not occur frequentlyand better still, not at all.

69

The Key Issues

Polltdiorr~ f f ct that it is the most controversial issue surround-In view of 5e ac~ 0, days I am going to outline for you the differenting shipping these ayselements invo v in1 ed n confronting pollution. I shall do sp by makingof the text provi y'ded by UNCLOS itself. This is, of course to illust,my contention at that there is no better agenda available.

The law of the sea devotes a fuB section -- Part Xll -- Protectionand Preservation od Pr rvation of the Marine Environment -- tp thePollution. In my opinion, the forty-six articles contained in paroffer an excellent, most compreheasive framewprk for dealing w,.ththis problem. The articles cover everything from the general umbrella" obligation of States to protect and preserve the marine enviromeat, to guidelines for enforcement of the provisions. In between, wefind excellent material on virtually every imaginable topic one cancome across when involved with pollution.

In Section 1 of Part XII we find specific mention of the generalmeasures that States should adopt tp prevent, reduce, and control allsources of pollution to the marine environment.

Section 2 deals with how to undertake and promote regional andglobal cooperation. It explains the possibility of doing this eitherdirectly between States or through the competent internationalorganizations. It provides for States to be held responsible fordeveloping contingency plans against pollution; fpr notifying otherswhen pollution has taken place or when there is imminent threat to themarine environment; for cooperating in studies and research programsand exchanging information and data; and finally, for using theinformation and data thus gathered as the scientific criteria for anyregulations they may need to promulgate.

In Section 3 there is an explicit call for improved scientific andtechnical assistance and for granting preferential treatment in theallocation of funds and of the services of specialized agencies in favorof developing States.

The type and extent of measures required in order to monitor a"dassess the impact of pollution on the environment are considered inSection 4.

The detailed requirements for national and international legislatio nto prevent, reduce, and control poHution of the marine environmentfrom land-based� ased sources, from seabed activities, from activities in the~ ~

Area, from dum inumping, from vessels and from or through the atmo-sphere, are contaiaed in Section 5.

70

Section 6 deals with enforcement: how to approach it, depending onthe source of pollution and the actor carrying out the enforcementprovisions.

Section 7 disc"sses safeguards: how to avoid und e hdi iduals, vessels and their owners particula ly fo

also to other States.S ction 8 COverS memureS to prevent reduCe and COntrOI marine

pollution from vessels in ice-covered areasSection 9 covers States' responsibilities for the fulfillment of their

international obligations and their liability in accordance withinternational law. It includes provisions on the need for them tocooperate in order to develop criteria for adequate compensation, suchas compulsory insurance or coinpensation funds.

Section 10 covers the sovereign immunity of States and their vessels.Finally, in Section 11 we find the specific provision for States to

obey the guidelines of other conventions on the protection andpreservation of the marine eilvirorlmetlf to which they may be party,in recognition of the fact that such instruments will have generallybeen concluded in furtherance of the general principles and objectivesof UNCLOS.

I have run down the list of articles and briefly described theircontents in order to illustrate the fact that UNCLOS provides a goodbasis for working on pollution prevention and control. Wheneverpossible and appropriate, this fact should be publicized at internationalgatherings such as this one and in publications and other media.Otherwise, we lose a magnificent opportunity to convey some of thegood news about UNCLOS.

Bearing in mind the general framework for pollution prevention andcontrol that I have outlined above, let us now analyze the other threeareas and look at the means of cooperating that will be available to usduring the last decade of this century.

Key to any effort at international cooperation in shipping for theprotection and preservation of the marine environment is an under-standing of the three principal bottlenecks we constantly come across:

1! Lack of implementation of IMO standards;2! Poor communications; and3! Poor maritime training schemes.

Each of these areas has some particularly difficult features andcharacteristics which hinder, and at times even prevent, the effectiveresolution of conflicts of interest and the improvement of safety andanti-pollution standards in shipping.

,~ I~0 @~~vsTh INplc~ r . ns we must a k ourselves when ponderingThe two pivotal qoestionS we mwhy t ingSah are not as they should be are:

l! What shoul we old do about "Aags of convenience~" and2! What shool we old do to enhance the implementation of I

standards'

overs'al issue of "flags of convenience and th;,The eternally controverslink to major s ippingh' p'ng casualties and ecological disasters must blooked at wit a resth f eshp rsp tive. Where~ argument and st tis!icscan be u to sube sed t bstantiate whatever your personal view pn the subjectis, the tru'th of the matter is that pollution can be generated by anyvessel, any ag. i1, flag Liberian ships such as the Amoco Cadi= and theExxon Valdez have been involved in major casualties, but so have theBritish ferry The Herald of Free Enterprise and the Norwegian tankerMega Borg, Accidents really do not know about flags.

Tobe fair, I think it is necessary for us to establish a clear distinc-tiOn between the traditiOnal Open registerS -- Liberia and Panaina-and the rest. Throughout many long years, these two administrationshave been forced by international public opinion to work hard atimplementing IMO standards for vessels under their flags. Neither hasachieved total success and Liberia has done better than Panama, butboth have made a worthwhile effort.

No, I do not approve of the recent proliferation of open registers.Having had a long association with one of the two big ones, 1 cancertainly warn newcomers that it is no easy task. The degree ofnational involvement required of a country offering its flag goesbeyond the normal expectations of politicians and ordinary citizens-In order to run a basically sound and profitable operation, there mustbe a solid legal, financial, communications, fiscal, labor, and maritimebackground in the country. This can only be developed over time andwith the unquestionable political resolve of generation after generationof politicians and public administrators. In the caM of Panama, withwhich I am most familiar, this has taken the better part o«urrepublican experience � over 65 years! And it must be done throughrain or shine!

Yet it iS impOrtant tO underStand that the iSSue Of their prOliferatio nmost not be negatively addressed, or we risk losing sight of the greatpotential for harm that these new ventures possess if left to thei«wndevices. We must learn to live with these new registers. All nationhave the sovereign prerog t,ve whether we like it or not -- of

72

granting investors whatever fiscal treatment they desire. Time is tooprecious to waste by moping around while genuine links in shippingbetween owners, managers, and flags of registry grow hazier by theday. The same internationalization process is taking place in allspheres of economic activity. This means that we must begin to acceptthe fact that "flags of convenience" are not going to disappear and thatour best bet is to make sure that they understand that it is essential forthem to operate to the highest technical standards possible or they willface continued and intease international political and public harass-ment, The forces of worldwide public scrutiny offer great assistancein this regard.

More particularly, with respect to pollution, we must insist thatthese new registers -- and indeed al! countries that haven't yet doneso-- immediately adopt IMO's key anti-pollution instruments: theInternational Convention for the Prevention of Pollution from Ships,l973 MARPOL 1973! aad its 1978 Protocol; the InternationalConvention Relating to Intervention on the High Seas in Cases of OilPollutioa Casualties, 1969 INTERVENTION 1969!; the InternationalConvention on Civil Liability for Oil Pollution Damage, 1969 LIABILITY 1969! and its 1976 Protocol; the 1973 Protocol Relatingto Intervention on the High Seas in Cases of Pollution by SubstancesOther Than Oil; the International Convention on the Establishment ofan International Fund for Compeasatioa for Oil Pollutioa Damage,1971 FUND 197 l! and its 1976 Protocol; aad the Convention on thePrevention of Marine Pollution by Dumping of Wastes and OtherMatter, 1972, and its 197S aad 1980 Amendments. We have a right todemaad from these new registers, as vehemently and consistently aswe have demanded from Liberia and Panama before, that they workearnestly at implementing international minimum standards.

How should we do this'? By keeping them under strict scrutiny atinteraatioaal fora. By pushing for them to use training and technicalassistance to improve their maritime safety administrations andinfrastructure. By monitoring their progress through port state controlinspections. By criticizing or commendiag them in public.

The above, however, 'must be a clear-cut message sent to allcountries, regardless of size or impormce or type of operation.Failure to convey the urgent need to implement IMO standards willhave, in the very short run, the utterly negative consequence ofunderminiag aII of IMO's work. This, in turn, can lead only to aniacrease ia marginal aad dangerous shipping operations and to aa evengreater exposure to accidents.

As usual, international politics simultaneously provides for thetoughest battlefield aad the best promise. Widely publicized exchanges

73

and fora caa heightenat inter at>o tM problems that caa be brought about by poor

d ~ also provide a much-needed means forpp, d d~~ing alternatives. Since I believe in +

f ur ~~ I would definitely encourage debate at allpositive value o our ca~ bo~ events particularly to emphasize the need fprimmediate acboa onedia tioa on behalf of the marine environment.

CewrNNNNeatioesOne of the most important contributions IMO has offered the worldlately is the Global Maritime Distress aad Safety System b <as GM~. M's project has been carefully prepared over the mtt enty years and will become a reality ia ]992. The GM DSSout of a dire need to modernize the Maritime Distress and SafetySystem contemplated in the International Convention for the Safety ofLife at Sea SOLAS!, 1974 by bCking advantage of modern technologi-cal developments, including satellite systems. The system has beeadeveloped with the continuing assistance of several internationalorganizations, including the International Radio Consultative Commit-tee CCIR!, The International Telecommunications Union ITU!, theWorld Meteorological Organization WMO!, the International Hydro-graphic Organization IHO!, and the International Maritime SatelliteOrganization INMARSAT}. It thus represents precisely the type oflaudable international cooperative effort that we envisage will beundertaken in the future under the umbrella of the Coaveation.

As we discuss a pmible framework for improved communicationsin shipping, we again find that the Coaveation offers aa umbrella. InPart VH � High Seas � under Article 94, paragraph 4, clause c!,eatitled 'Duties of the Flag State,' there is express provisioa formember States to adopt such measures as necessary to ensure '-. c!that the master, officers aad, to the extent appropriate, the crew arefully conversant with and required to observe the applicable interna-tional regulations eoacerniag the safety of life at sea, the preventionof collisions, the prevention, reduction aad control of marinepollution, and the mainteaance of communications by radio--.

The State is furthermore required, under Paragraph 5 of the sa><article, "to conform to generally accepted international regulationsprocedures aad practices aad to take any steps which may be access~to secure their observance.'

Further on ia this section, Article 98 explains the 'Duty to Ren«rAssistance" in the following terms:

74

Every State shall require the master of a ship flying its flag, inso far as he can do so without serious danger to the ship, thecrew or the passengers:

a! to render assistance to any person found at sea in dangerof being lost;

b! to proceed with all possible speed to the rescue of personsin distress, if informed of their need of assistance, in sofar as such action may reasonably be expected of him;

c! after a collision, to render assistance to the other ship, itscrew and its passengers and, where possible, to inform theother ship of the name of his own ship, its port of registryand the nearest port at which it will call.

2. Every coastal State shall promote the establishment, operationand maintenance of an adequate and effective search andrescue service regarding safety on and over the sea and, wherecircumstances so require, by way of mutual regional arrange-ments cooperate with neighboring States for this purpose.

The GMDSS system is based on two IMO Conventions: the Interna-tional Convention for the Safety of Life at Sea, 1974 SOLAS 1974!and the International Convention on Maritime Search and Rescue,1979 SAR 1979!. It is going to be implemented via amendments toChapters I, II-l, III, IV and V of SOLAS 1974, which is IMO's basicinstrument for the promotion of safety at sea. Under the currentmaritime distress and safety system spelled out in SOLAS 1974, certainclasses of ships are required, when at sea, to keep continuous radiowatch on the international distress frequencies assigned in accordancewith the ITU's Radio Regulations and to carry radio equipmentcapable of transmitting over a minimum specified range of 100 to 150nautical miles. This means that assistance to a ship in distress can berendered only by other ships in the immediate vicinity, in a ship-to-ship operation. The system has two major, manually-operated subsyst-ems: the morse telegraphy system on 500kHz for all cargo ships ofl,600 tons and over and aH passenger ships all SOLAS Conventionships!, with the subsequent need for morse-qualified radio officers tooperate the radiotelegraph installations, and a radiotelephony subsys-tem on 2,182 kHz and 156.8 MHz for aH cargo ships of 300 tons andover and all passenger ships.

The basic concept of the new GMDSS concept is that search andrescue authorities ashore, as well as ships in the immediate vicinity ofthe distressed vessel, wiH be rapidly alerted to a distress incident, so

~;nat~ search and rescue operation witltthat they can ~ t will also provide for urgency and safetythe ' ' d f the dissemination of marine safety informcommun - M nd meteorological warnings By aldjnmincluding navigatio an SAR! authori'ties and providingthe search and rescue , GMDSS hould enable ships to operate mpfe safely

dgrmation, GM s ou

ln order to accomphs e a v ,d ff t radio subsystems that form the global systemtionsof the dif erent ioequipment that a s ip wiha h w>ll be required to carry ~ill depend bon the ship's area o operaf operation which can be any of the followin

Area Al - within range of shore-based VHF coast stations �0-30miles!;Area A2 - within range of shore- based MF coas t sta tions exc iudAl areas!in the order of 100 miles!;

Area A3 - within the coverage area of geostationary maritimecommunication satellites excluding A 1 and A2 areas; approximatelYbetween 70 degrees N and 70 degrees S!; and

Area A4 - the remaining sea areas outside areas A 1, A2 and A3,

The GMDSS system has been designed to perform the followingbasic functions efficiently:

1! Distress alerting, either to another ship in the vicinity or to arescue coordination center RCC!. Distress alerting communicationscan be done in three directions: ship-to-shore, ship-to-ship, andshore-to-ship, in all sea areas. Time is expected to be short and thesuccess rate high. A distress alert will normally be initiated manuallyand all wiH be acknowledged manually. %hen a ship sinks, a float-freesateHite EP1RB wiQ be automaticaHy activated.

2! Search and rescue coordinating contmunicarions, includingcommunications between the RCCs and any 'on-scene commander" or"coordinator surface search' in the area of the distress incident.Radiotelephony and radiotelex, or both, will be available, and wi/1 becarried out by terrestrial means or satellite, depending upon theequipment on board the ships and the area in which the incidentoccurs.

3! On-scene communications wiH normally take place in the h4F andVHF bands of frequencies designated for distress and safety traf f ic byradiotelephony or radiotelex. Thea' are the communications betweenthe ship in distress and the assisting units, and they will generallyrelate to the provision of assistance to the ship or to the rescue of

76

survivors. There are even special frequencies for aircraft involved inon-scene communications.

4! Locating signals are transmissions intended to facilitate thefinding of a ship in distress or the location of survivors, They will bebased on the use of SAR 9 GHz transponders at the scene, togetherwith the assisting unit's 9 GHz radar.

5! Dissemination o j marine sa jet y information, including navigationand meteorological warnings and urgent information to shipping, willbe done through broadcasts on the MF frequency of 518 kHz and viaINMARSAT. The new system is intended to provide fully automaticreception of this crucial information.

6! General radiocommunications, those concerning the ship' smanagement and operation and which may have an impact on itssafety such as orders to pilots and tug services!, may be conducted onany appropriate channel, including those used for public correspon-dence.

7! Bridge-to-bridge communications are intership VHF radiotele-phone conversations for the purpose of assisting the safe movement ofships.

The new global system will use both satellite and terrestrial commu-nications systems. In the case of satellites, IMO has decided to use theINMARSAT satellite system, which has geostationary satellites andoperates in the 1.5 and 1.6 6Hz frequency bands, to provide a meansof alerting from ships by using mobile earth stations or satelliteEPIRBS, as well as a capability for two-way communications using ra-diotelex and, optionally, radiotelephone. The INMARSAT system willbe complemented by a near polar-orbiting satellite EPIRB service COSPAS-SARSAT system!, operating in the 406 to 406.1 MHz fre-quency band. This system will provide the main means of distressalerting and determining the location of the free-floating satelliteEPIRBS.

Terrestrial communications will include long range high frequency HF! services oa 4, 6, 8, 12 and 16 MHz bands for transmitting andreceiving distress alerts aad safety calls aad traffic; medium rangefrequencies in the 2 MHz band; aad short-range VHF services on156.525 MHz channel 70! aad 156.8 MHz channel 16!.

The dissemination of marine safety information will be done eitherthrough NAVTEX on 518 kHz, through INMARSAT's EnhancedGroup Call EGC! service, or by HF.

The ship equipraent carriage requirements for the different GMDSSareas can be summarized as follows:

ll carry VHF eQuipment,s ips wl2 h' s will carry VHF and MF eQuipment;

- Area A3 s ips wiA3 h'ps will carry VHF, MF and either HF or sat 0;eQuipment;A4 h'ps will carry VHF, MF and HF eQ»pmen

� all Area A2, A3 and A4 ships will carry a sate ite EPIRB;Ili

- all Area Al ships will carry either a satellite EPIRB o,EPIRB; and

- all ships op rating in areas where NAVTEX service is pro idw>11 carry a NAVTEX receiver,

IMO' Maritime Safety Committee has approved a transition plat toguide national maritime administrations in their implementation o f theGMDSS system. Between 1992 and 1997 ships will be allo~ed to con-form g adually to the new global system, and the present distress andsafety system will be kept in use in parallel with the GMDSS Af>,1997, only the GMDSS will be mandatory on an international basis.

The main reason that I have discussed at length the new GMD55system is that its implementation will be an excellent exercise in inter-national cooperation at all levels: inter-governmental, governmental,and commercial. Taking into account the fact that the concept of safe-ty of human life at sea is fundamentally important to shipping, thisimplementation will indicate the degree of maturity achieved so far bythe world maritime community. National governments will need toprepare plans relating to search and rescue organizations and commu-nications networks. Private manufacturers must develop eQuipmentsthat meet IMO performance standards. The ITU, through the WorldAdministrative Radio Conferences %ARC!, has incorporated the op-erational provisions nece!~y for the use of the new system in'to itsRadio Regulations, and will need to continue monitoring develop-ments. IMO Member States have agreed to amendments to SOLAS1974 and must now develop amendments to the 1978 InternationalConvention on Standards of Training, Certification and %atchkeepingfor Seafarers. Finally, IMO and INMARSAT will sponsor a ineetingof IMO Member States and INMARSAT parties in December 1990 tdiscuss funding for maritime distress an4 safety communications.Governments all over the world are being encouraged, but not co>-pelled, voluntarily to apply the transitional arrangements and to obt»"as much experience with the system as possible beforehand.

Several problems have been identified with the GMDSS concept; itpresupposes the willingness of governments to comply with the newSOLAS re ulationsg ' s and SAR 1979. Money couM be an issue for nations deciding to buildg 'ld shore facilities, such as Rescue Coordination+

78

Centers, and for ships that have not yet bought all the equipmentneeded for satellite technology, for example. Some experts have point-ed out the fundamental disparity of intent between countries that be-lieve that radio officers are no longer necessary some developedcountries! and those that don't some developing countries!. There isalso the problem of overcoming union suspicions and of training sea-farers in the new procedures. The width of the gulf that separatesthese positions is such that it makes positive implementation of theG~DSS an indicator of the political resolve of nations and of the abi-lity of the shipping industry to achieve an acceptable balance betweensafety and commercial interests.

Narifime TraimingLast, but fundamental to international cooperation in shipping dur-

ing the 1990s, is maritime training. The Convention places great em-phasis placed on this topic, particularly in Part VII on The High Seas,in Part XII on Protection and Preservation of the Marine Envi-ronment, and, of course, in Parts XIII and XIV, on Marine ScientificResearch and the Development and Transfer of Marine Technology.

I wish to emphasize the need for international cooperation to fur-ther the essential area of maritime training. In the wake of the marinecasualties I mentioned in my introduction, all accusing fingers imme-diately pointed at "human error." Shipowners tried to focus the argu-ments away from their management practices and from the highertechnical margins of safety that should have been present, to the hu-man factor. Everyone proposed enhanced training and higher ship-board standards as the remedy, but the truth is that the shipping in-dustry and governments all over the world have dangerously neglectedmaritime training during the past decade of economic recession and"survival of the fittest." Governments, shipowners, unions and acade-mies will find it very difficult to respond to the new technologies ina short period of time.

The only exception to the above is the work done by the Interna-tional Maritime Organization IMO! in this field: the development ofthe 1978 Convention on Standards of Training, Certification andWatchkeeping for Seafarers STCW! and the creation of The WorldMaritime University, in 1983.

The STCW is a solid international instrument with basic guidelinesfor the training of seafarers, for their certification by national au-thorities, and for the exercise of their watchkeeping duties once onboard the vessels. The full and immediate implementation of this con-vention by all IMO Member States would lend a major boost to world

79

't would reach all aspiring seafarers and thosesafety levels because it woualready in the profession.ld M 'time University WMU!, created in 1983, dThe World Maritime nivial t' n. The WMU is the vision and heart of onea very special mention. e's Secretar -General Mr. C.F. Srivastava, who made it ~,.ble. The university is sus'ty is sustained today by the goodwill and contributioa

. I opinion the WMU is perhaps the greatest single contribution anyone coune could have ever made to safer ships and clea~,oceans. e

~ Th WMU is a way of helping the shipping communit'yespecia y e ev11 the developing maritime nations, to reach the goal of f�gimplementatio n of IMO technical standards through a unique ex~ment in world peace and cross-training. I am a product 0 f the WMU,s are many of the delegates now representing their countries at IMQ

and other international meetings. We are different and definitely b tter for having had the privilege of attending the WMU, and we allshare a genuine commitment to international peaceful cooperation iashipping.

The cream of the developing maritime world is being trained in atotal of seven two-year Master of Science courses in maritime admi-nistration, education and training, maritime safety administration,technical management of shipping companies and ports and shippingadtninistration, at a rate of 100 or so per year. The WMU works, andthis has already begun to show with graduates already holding high-leve! positions in national maritime administrations, training collegesand academies, port authorities, shipping companies and other mari-time organizations around the world.

The WMU must be supported and encouraged with intellectual andfinancial resources. Already many of the most prominent minds inshipping and maritime affairs are lending their assistance, lecturing atthe WMU and serving on different advisory boards. Mr. Srivastava hasagreed to continue serving as Chancellor of the University for twoyears at the request of IMO's new Secretery General, Mr.O' Neill. Major shipping groups, maritime organizations, port author>-ties, classification societies, major oil companies, educational andcharitable foundations, publications and private individuals fro>around the world are contributing to the WMU's sponsorship campaign, through cash donations, fellowships, funding of humanresources, exchange of expertise, and contributions for trainingequipment and library acquisitions.

My emphasis in training, however, has yet another bent. I be»ethat greater efforts should be also spent to train the seafarers fro. thedeveloped world, because they are the ones usually in command ovessels. People working in ports and harbors, people in charge o«es

80

cue centers, people doing pollution clean-up, you and me, we shouldall be trained. Even the most basic awareness of the subjects I havetouched upon today would be beneficial.

Qoaclusloa

Today I have tried to identify and explain in some detail the fourareas in shipping where international cooperation will be crucial dur-ing this last decade of the twentieth century. Pollution, the implemen-tation of IMO standards, communications, and maritime training arethe most important activity areas for the 1990s. Because shipping is avery visible maritime activity, any progress we are able to achieve,however minuscule, will go a long way towards strengthening theground for the entering into force of the law of the sea. Yet failure onthe part of UNCLOS advocates to grab the opportunity and "market"the excellent framework it provides for dealing with the threat ofpollution will in effect be a wasted opportunity.

REFERENCES

Guy, J. 1988. "A Net With Too Many Holes". Fairplay 307: 7-8.International Maritime Organization. 1987. Global Maritime Distress

and Safety System. London, 1987.Singh, N. 1983. 1nternational Maritime Law Conventions. 4 Volumes.

London: Stevens k Sons, 1983.

I~RQATIO>AL RKGUI ATIOI OFMARITIME CRIMES

Takane SugiharaHokkaido University

Japan

The theme assigned to me is International Regulation of MaritimeCrimes" As is well known, various kinds of maritime cr.,mes h �been regulated by international law and treaties: acts of piracytrade, submarme cable breaking, illicit traffic in narcotic drugs, pirateradio broadcasting, maritime terrorism or seajacki ng of a ship, and soon. Since it is aot possible to deal with all of these offenses in thisbrief report, I would like to confine myself mainly to two questions-illicit traffic in narcotic drugs by sea and the question of maritimeterrorism. These are questions of serious concern to all states today.

Before entering into the question of narcotics smuggling, I shouldlike to refer very briefly to the suppression of the slave trade in thenineteenth century. The state that took the most vigorous attitude to-wards the suppression of the trade from overseas was Great Britain. Iaorder to prevent the trade, the British government entered into a num-ber of bilateral treaties with European states. These treaties commonlyadmitted a reciprocal right of search to be exercised by warshipsagainst vessels of the other contracting states suspected of engaging inthe slave trade. Two major states, however, were missing in the treatynetwork.' The U.S. and France put up stubborn resistance to therepeated British proposition for a conclusion of an anti-slave tradeagreement, which accorded a mutual right to visit and search a vesselof the contracting states on the high seas. In l8l8, then Secretary ofState John Quincy Adams replied to the British government that theadmission of a right in the officers of foreign ships of war to enterand search the vessels of the United States, in time of peace, underany circumstances whatever, would meet with universal repugnan«in the public opinion of this country ... that the search by fo«ig"officers, even in time of war, is so obnoxious to the feelings and

1lt waa after the beginnin of t' g o he Civil %ar that the U.S. 5rat accepted an ~ t'treaty «ith Great Britain which included a mutual t18si t t hrea y wit Great Britain, it a--~, i a~ed in excluding the rmght min tween both atatea. Thereafter hreughout the nLnetee

er recogni thia right.

recollections of this country, that nothing could reconcile them to theextension of it, however qualified or restricted."' In 1858, the U.S.Senate, with respect to the matter of slave trade by sea, unanimouslyadopted a resolution declaring that "any visitation, molestation, ordetention of such [American] vessels by force, or by the exhibition pffprce, on the part of a foreign power, is in derogation of the sover-eignty of the United States."'

Cpming to the twentieth century, an interesting situation was foundin the relationship between Great Britain and the United States. Theirppsitions concerning the question pf a right of search have becomegenerally reversed. In some matters other than the slave trade, the U.S.has become more active in asserting extensive exercise of a right ofsearch over foreign vessels, while England has turned tp a passiveposition. These phenomena have been clearly seen at least twice.First, we have an occasion when the U.S. promulgated the NationalProhibition Act in 1919. Upon the entry into force of the legislation,the U.S. government was forced tp tackle vessels of foreign registryengaged in smuggling intoxicating liquors into the United States.Having obtained a Supreme Court decision of 1923' which ernbar-rassed foreign states engaging in maritime commerce with the U.S.,the American government succeeded in concluding a series of bilateraltreaties with other states, including Great Britain. These treatiesrecognized certain enforcement jurisdictions of the U.S. over foreignvessels within limited high seas areas adjacent to the U.S. coasts.

The second occasion happened recently. When a vigorous actionagainst drug smuggling into the U.S. started at the beginning of the1970s, an even wider right pf search over foreign vessels engaged inviolating its laws was asserted. Under the UN Convention on the Lawof the Sea adopted in 1982, all states have a duty to cooperate in sup-pressing illegal drug traffic at sea. Neither the Convention nor thepresent Single Convention on Narcotic Drugs �961!, however, author-izes a right of boarding pr seizure of foreign vessels on the high seas.As noted above, since the early 1970s, the U.S. has engaged in an ac-tive campaign against drug smuggling into its territory, particularlyfrom the Caribbean. So far as judicial decisions on the subject show,the mode of enforcement jurisdiction exercised by the U5. authorities

J,B. Moore, A Digest of Intenuicma/ Law, 1906, Vol. II, p. 918.

Ibid., p. 946.

Custard v. Metlon, 1925, 262 U.S. 100, 67 L. ed. 984, 43 s. Ct. 504.

83

I ot the high seas may be classified into theover foreign vesse otfollowing three types:

First, there 1s a case, h ' case ~here illicit drugs are carried by a stat lvessel, a vesse not yiot flying the flag of any state. Exercise of enforcement tneasures over suover such vessels was justified on the ground that t}stateless vesse is no eI 's not entitled to the protection of international la

The second is that of enforcement jurisdiction exercised over a feign vesse erel after having obtained the consent of the flagboard ' or on the basis of a bilateral agreement which authori~ight to board In this case, questions of international law ma

arise in principle, so long as the boarding or seizure is conductedappropriate manner.

The third is this' enforcement jurisdiction of the U.S. authhas ieen extended to a ship of foreign registry on the highwithstanding having neither prior consent nor a treaty basis. In thiscase, there may arise a certain jurisdictional problem from the standpoint of international law, Judicial decisions of U.S. courts, however,have largely sustained this type of action. To be brief, the reasoningof the decisions for justifying the seizure of foreign vessels on thehigh seas rested either on the ground that Article 6 of the High SeasConvention, which provides the principle of flag state jurisdiction, isnot self-executing, or on the ground that a flag state of the vesselseized is not a signatory to the Convention; thus depriving litigants ofstanding to raise an objection of treaty violation by the U.S. authori-ties.' It may be noted, however, that some critical observations onthese reasonings have been expressed by commentators.' l do not in-tend here to discuss the legal issues of these decisions. But to say theleast, from the viewpoint of international law, the second type ofboarding is preferable to the third one.

With these remarks, I have to direct our attention to a proposedboarding formula set out in a recent international convention: namely,

United Statal v. Cortes, 1979, 588 Fed. 2 d. 108, 1M; United States v. Al~~t-Mena, 1985, 755 Fed. 2d. 1269, 1265.

United Statce v. Patcmn, 1987, 812 Fed. 2d. 48B, 498; Q~~ states v, Hiemal1988, B78 Fed. 2d. 1427, 1442.

7United sta4aa v. Poetal, 1979, 589 Fed. 2d. 882, 875-884; United States v. Cadciila~1978, 585 Fed. 2d. 1262, 1259-1281.

re>d, The Doctrine of Setf-Exec~ting Treaty and U,S, v. Poet4: .» ~tany Price? AJIL, Vol. 74 {1980!, p. 892. See abo, Qaitac3 Sta4e v. Green, 1982, 071 F~.

'I 50

the Convention Against Illicit Traffic in Narcotic Drugs and psycho-tropic Substances,' adopted in Vienna in 1988. The Conventionsupplemented and reinforced earlier measures contained in the Single onvention on Narcotic Drugs of 196l, and the 1971 Convention onPsychotropic Substances. Here I take just one article of the 1988Convention, Article 17, which deals with illicit drug trafficking bysea. The article set out a notable method for the boarding and seizureof a foreign vessel suspected of engaging in the illicit traffic.

Under the provisions of Article 17, a state which has reasonableground for suspecting illicit traffic by a vessel of another state mayrequest authorization from the flag state to board and search the vesselon the high seas. When this request is made, according to the article,the flag state must respond expeditiously whether permission shouldbe given. or not. For this purpose, each state party is required todesignate a national agency or authority to receive and respond to suchrequests. This formula corresponds precisely to the second type ofboarding referred to above with respect to U.S. practice.

In my opinion, the l988 Convention's permission system of board-ing may prove to be effective in suppressing illicit traffic by sea if itis applied properly. In particular, it may be effective where little con-cern is being paid to this matter by the Aag state.

In applying this system, however, care must be taken not to inter-fere with the lawful navigation and maritime commerce of otherstates. Requesting states should be especially careful to ask for permis-sion to board, because this is an exception to the well-establishedprinciple of flag state jurisdiction. Under the l982 Law of the SeaConvention, all states are under a duty to cooperate for the suppres-sion of illegal traffic in narcotic drugs. Therefore, once a request ismade for boarding, it may present a heavy bias towards compelling theflag state to answer in the positive. The principle of flag state juris-diction is without doubt very important in maintaining the freedom ofnavigation. The request for permission to board should therefore bemade as discreetly as possible, restricting it only to cases in whichboarding and search of a vessel on the high seas is urgently needed,leaving no other methods to be taken. In cases when the suspicionsprove to be unfounded and the ship boarded has not committed anyoffense, demand for compensation by the ship may be allowed for anyloss or damage that may have been suffered thereby.

In order to reduce the difficulties that may arise in implementingthe permission system, it seems appropriate fo consider entering into

bilateral «greements between concerned states. By concluding suchagreements, states can provide for procedures and conditions to befollowed i» the boarding or seizure of vessels of another state. A goodexample Of thiS iS the Agreement of 1981 conCluded between theUnited Kingdom and the United States." Under the Agreement, theU.K. agreed not to object to the boarding and search by the U.S.authorities of private vessels under the British flag in any case ia,whiCh the veSSel is reasonably believed to be engaged in importatiarrof illicit drugs into the United States. The Agreement sets forthseveral substantive and. procedural conditions to be observed by theV.S. authorities, including conditions relating to responsibility forcompensation. Moreover, it severely limits the geographic areas inwhich the boarding or seizure may be admitted, The specific areascomprise the Gulf of Mexico, the Caribbean Sea, and maritime areaswithin l50 miles of the Atlantic coast of the United States. TheAnglo-American Agreement may provide a useful example for otherstates facing this problem.

NO%' I mOYe to the SecOnd question; the questiOn of maritirr16terrorism. By using the term marifirne terrorism, I have in mindchiefly terrorist activities committed on board a ship such as so-calle�seajacking. The AcIrilIe L,pro incident of 1985 may be adduced as ~outstanding representative incident,

The AchiIIe Laur0, an Italian-flag cruise ship, was attacked ~4seized by four armed men while sailing on the high seas in theMediterranean. The four Palestinian seajackers were passengers oa.board the ship when they seized it. They demanded the release of fifthsPa!estinians held in Israeli prisons in return for the release of t>epassengers of the hchHle Lauro. When their demands were not metthey dragged out a Jewish-American passenger and killed him.

There has been much discussion whether such maritime terroristacts committed on board the Achille Lmro can be qualified as an actof piracy under international law.u If it does qualify as such, it is aninternational crime to which universal jurisdiction of all states can baapplied. Under the established rule of international law, every stata

BHL, Vol. 5% �901!, p. 471.

Q.R. Coeeianiiaop4e, "Towaccb a, New Definition of Piracy: The Achi7le ~nincident, VaJJL, Vol. Sg �QSS!, p. T$5; G.P, McC bdey, 'The AcMk Laaro Caee: A V~Silly in Criele Law, Polky aa4 Maaageeaeai M.C. Baeeiouni, Legal Respo~ ~haCenaatiOeal TCrrenaw, 1005!, p. 5%5; LC. Halbetliam, Terrorism Safeiy," Ale, VOl. 8%�0gg!, p. %80; C.C. Joyner, "The 1985 940 Convention on Safety of Marital~Navigation: Towards a Legal Reeady for Terroriem ai Sea,' GHL, Vol. Sl �988!, p. RSQ.

86

may seize pirates on the high seas with the right to punish them intheir municipal courts.

In l96l, when a Portuguese liner, the Santa Maria, was seized bya political opponent of Portugal, a similar question was discussedwidely as to whether this amounted to piracy or not." In this case,the opposition declared the seizure of the vessel to be the first stepaimed at overthrowing the Portuguese government. One crew memberwas killed and eight others were wounded in the process. Both cases-- the Santa Maria and the Achille Lauro -- are very alike in appear-ance. But they are distinguishable in some aspects. In the San ja Maria,men seized a ship which was under the jurisdiction of the oppositionstate and confined their actions to that state. In the Achitle Lauro, menseized a ship of a third state and murdered a citizen of another thirdstate. In other words, those who seized the Achille Lauro did not limittheir target to a particular state. They may have chosen a vessel of anystate indiscriminately for their end. In this sense, the action seizing theAchille Lauro appears to be much closer to an act of piracy under in-terna.tional law.

I doubt, however, whether the seizure of the Achille Lauro wouldfall within the legal notion of piracy that is defined in the High SeasConvention of 1958 or in the UN Law of the Sea Convention. In myopinion, the seizure of the Achille Lauro, as well as the Santa Maria,would fall short of qualifying as acts of piracy under those conven-tions. The circumstances involving the seizures appear to fail to satisfythe conditions required to be piracy.

First, motivation for the attack on the Achitle Lauro does not seemto have been "for private ends," as defined in Article l5 of the HighSeas Convention. Although there is a contrary view on this point," itwould be difficult to prove that the action on board the ship was done"for private ends."

Second, there is lacking the two-ship requirement. Under the defi-nition of piracy in the High Seas Convention, to be an act of piracy,the act must be done by a "private ship" against "another ship." In theAchi lie Lauro case, there is no proof to show that the Palestinian groupattacked the Achi jle Lauro from another ship, On the contrary, it iswell known that the group were passengers on board the vessel whenthey seized it. For these reasons, I have to conclude that although the

C,G. Fenwick, "Piracy" in the Caribbean, ANIL, Vol. 55 �981!, p. 428; 1 .C. Green,Tbe Saeta Maria: Rebels or Pimtee BHL, Vol. ST �981!, p. 408.

' McGinley, cy. ck, pp. s27-s35; Halberetam, op. cit, p. 282.

$7

actions on board the Achille Lauro are unarguably unla ful acts ofmaritime terrorism they do not technically qual'f y as piracy under in-ternational law.

Reaching the same conclusion in the Achille Lauro incident, somecomment tors recently pomt~ out th t the present definition of piracy enshrined in the 1958 Convention and 1982 Co nvention -- bothcontain the same definition of piracy -- is outdated and unnecessarilyrestrictive in the modern perspective." According to them, the re-quirements that acts must be done for private ends and against anothership do not necessarily meet the political and social needs of the cur-rent time, From this point of view, some of the commentators proposed to revise the definition of piracy in the Law of the Sea Conventionof 1982, with a view to enlarging it.~

It is not an easy task to evaluate these propositions properly. I amready to accept that the "private ends" requirement should not be readas too restrictive. This requirement is a product of old days when theact of piracy was generally regarded as simply robbery or plunder up-on the sea. In the present time, many of the dangerous acts which con-stitute a serious infringement of the safety of maritime traffic may bedone for public ends rather than for private ends. For example, a vio-lent action taken by a vessel of the environmental group Greenpeaceagainst two vessels engaged in discharging noxious waste at sea wasdeclared in Belgian courts in 1986 to constitute an act "for privateends" within the meaning of the definition of piracy, even though itwas done in order to attract public attention to the harmful dischargeat sea."

Now, as to the two-ship requirement, it appears to be questionablewhether the requirement should be eliminated, as proposed by somewriters. If this requirement is struck out, every illegal act of violenceor depredation which is committed entirely within a ship by the c«wor passengers might be qualified as acts of piracy under internationallaw, thus making them subject to universal jurisdiction of all states.ln my view, such a result would give rise to serious questions. It mightbe a serious blow to the principle of flag state jurisdiction. Suchoffenses committedd on board a ship by passengers should be under theexclusive jurisdiction ofj ' ' on of the state whose flag it flies, unless the flagstate asks for an interventiention by other states. There are several reasons

J nJo Y>~ri ~- m~ Pp. 246-247; Conatan~pla qp.. 7+3.p a, cy. cia., p. 748.15conltantinaple, op. cit., pp. 74s-7sg.16John v. NV Mabeco 1986 KR V o~. 77' p. S37.

why states accepted universal jurisdiction over acts of piracy. First,pirates attacked the ships of all states indiscriminately. Second, thepirate ships were not subject to the authority of any state and there-fore no state could be held responsible for their acts. But this is notthe case where unlawful acts are committed on board a ship of a parti-cular state since the ship is and should be subject to the jurisdictionof the state to which it belongs.

Next, I have to refer to a new convention concluded primarily forthe suppression of maritime terrorism. That is the Convention for theSuppression of Unlawful Acts against the Safety of Maritime Naviga-tipn." Fpllpwing the seizure of the Achille Lauro in 1985, the needfor an anti-terrorism treaty at sea was widely recognized. A draftconvention, modeled on existing conventions, particularly the Hagueand Mpntreal Conventions against airplane hijacking and sabotage,and the Hostage Convention, was considered by the InternationalMaritime Organization IMO! and was adopted in Rome in 1988. Sincethe cpnclusion of the IMO Convention there has been a realization thatthe traditional approach to piracy no longer meets present needs fordealing with threats to maritime navigation and shipping on the highseas.

The IMO Convention on the Safety of Maritime Navigation clearlydefines the offenses to which the mechanisms of the Convention are

to be applied. Al! offenses under the Convention are acts that endang-er the safe navigation of ships. The core of the Convention concernsthe requirement to extradite or prosecute offenders. Each state partywhere an alleged offender is found is obligated either to extradite himto a state having appropriate jurisdiction under the Convention or toprosecute the case under its own municipal laws. This is the so-called"extradite or prosecute" formula. If a state chooses not to extradite anoffender, the Convention obligates that state, without exception, tosubmit the case to its competent authorities for prosecution. In orderto ensure steadfast legal actions, a state party is under an obligation toestablish jurisdiction over offenders, when the offense is committedon board a ship of registry pf that state, or committed in the territorialsea of that state, or comInitted by a national of that state.

The IMO Convention is the first major international attempt tp copewith maritime terrorism threatening navigation on the high seas. It hasmade a sound contribution to international law by defining certainoffenses as unlawful acts of terrorism and by fixing international rulesfor jurisdiction over accused offenders.

lLM, Vol 27 �988!, p. 668.

89

In my open>on ow' ' n however the Convention is not enoughtrates mam y on ex ra '' 1 on extradition and punishment of offenders bses little aim ir1' 1 ' edd'rectly at suppression or deterrence of those activ t'Putting it in anoFu ' 't 'n another way the Convention deals more with trialpunas men o' hment of offenders than with the immediate suppression of thoffenders." Article 9 of the Convention provides:

Nothing in th~s Convention shall affect in any way the rules finternational law pertaining to competence of states to exeinvestigative or enforcement jurisdiction on board ships not fltheir flag,

This Pro ision may be construed as affirming a traditional Pr n 1of flag state jurisdiction, so far as the ship is concerned. Thereforeeven when an offense defined in the Convention occurs on board aship on the high seas, no state other than the flag state can forciblyintervene in it, unless the flag state asks for the intervention of otherstates. The Convention neither admits exercise of a right of interven-tion by other state parties, nor imposes on them a duty to cooperate ininterrupting the offenses committed or in arresting the offenders.

This may be inadequate to iInmediately suppress offenses on thehigh seas. In the Santa Maria incident referred to above, the Portu-guese government asked British, Dutch and American naval vessels tosearch for and capture the Santa Maria, which had been seized by apolitical opponent. The seized vessel was eventually found in interna-tional waters by these naval vessels and boarded by the commander ofan American warship. The opponent group agreed to surrender thevessel, provided they receive assurances that they would be treated asinsurgents, not pirates.'

As evidenced by this instance, a specific cooperative system may beneeded to ensure prompt action to interrupt maritime terrorism and toprotection passengers and crew. The IMO Convention is now silent onthese issues. The present Brussels Convention on Salva.ge �910!, or theConvention on Maritime Search and Rescue �978! is primarily ad-dressed for rescue of ships and persons in distress at sea, not for ass»-tance in cases of terrorism committed on board a ship. Therefore, itmay be advisable to consider to what extent, upon a request of the nagstate, coo rative mperative measures should be taken by other states to ensure

l1Joyner, qp. ck, p. %$8.19IIV hitcman, Digat of lieensat' il,v~.~,p.ees;s~b ~~.e ~ p'~-

effective interruption of terrorist activities when they occur on boarda ship on the high seas.

9ISPPSAI, PF ~ASTE AND RIGHT OF PASSAGE

h4. Casey jarmanWilliam $. Richardson School of Law

University of Hawaii

Iufroducf/oa

The law of the sea is the "Johnny-Come-Lately player in what hcome to be global environmental problems. Until the past fe w decadesthe environmental problems associated with the industrial Revolutionand its aftermath seemed to be the province of land-based legal systems. But the inevitable has occurred. Shrinking availability of landsites for waste disposal has turned nations' attentions to the sea. Theocean has been proposed as a dumpsite for low-level nuclear wage,sewage sludge, and other waste. Technology capable of incineratingtoxic wastes aboard vessels has led nations to permit incinerations ofsuch materials at sea. The Proliferation of plastic packaging on ship-board has created a plastic litter problem in the ocean and on beachesworldwide. And accidents associated with the transportation of oil tomeet energy and transportation needs threatens the ocean and coastalenvironments.

This evolution of marine pollution as a widely-recognized law ofthe sea problem has necessarily had an impact on traditional naviga-tional freedoms. As discussed below, treaties negotiated since the1950s have gradually restricted navigational rights in favor of coastalstate authority to protect its marine environment. Negotiating stateshave attempted to develop a bahnce between the need for uninter-rupted commerce and protection of the earn environment. This paperdiscusses how this balance has been struck and its implications forvesseh and coastal states.

Vessel Source Pollution and Ifl Impact

Land-based pollution has been identified as the biggest culprit inthe marine Pollution arena by far, nonetheless, vessel-source pollutionposes serious threats to the ocean and coastal environments. The mosthighly visible, and highly public~, fo~ of such pollutien are 0Band plastics. Unfortunortunately, our knowledge regarding the assimilative

92

capacity of the ocean is still in its infancy. Short-term effects ofspecific incidents on coastal biota are generally understood e.g.,deaths of marine mammals and seabirds!, but far less is known of thelong-term cumulative impact on living resources such as fisheries andon ocean processes.'

Vessel-source marine pollution originates from l! operationaldischarges associated with tanker tank cleaning; �! bilge discharges;�! marine accidents; �! spills occurring during loading, discharging,etc.; and �! deliberate dumping of waste.' While seldom in largequantities, operational and bilge discharges, usually of oil or refuse,cumulatively have created the most serious overall problem.' Fortu-nately, these types of discharges are the most easily controlled.Adaptation of ship designs, installation of more technologicallyadvanced equipment, improved operational procedures, and bettertraining of shipboard personnel can prevent most of these types ofpollution incidents. Unfortunately, these measures can be costly', so theincentives to prevent pollution from operational discharges must besufficient to justify the added expense.

Spills due to marine accidents are clearly the most visible, andspecific incidents such as the Torrey Canyon disaster prompteddevelopment of many of the international treaties discussed below.The Exxon valdez accident in Alaska in l9S9, while the most seriousin history, is just the latest in a series of tanker and other vesselaccidents that occur with disconcerting regularity.' Although such

1 Assimilative capacity models, which incorporate a number' of factors considered bythe Environmental Protection Agency EPA! in establishing and revising ocean dumpingcriteria, suffer from numerous weaknesses. One of the moat important limitations ia theabsence of empirical data which haa impeded efforts to estimate the endpointa ofcontaminanta for particular ocean areas." [citationa omittedj John Warren Kindt, 'OceanDumping,' 15-14 Deev J Let L 556, 541 Fall SS- Summer S5!.

Short-term environmental analysis haa further compounded the problem situationand led to dangerously Gawed decisions for waste disposal via ocean dumping. Due to thelack of knowledge regarding the ocean'a assimilative capacity, the tendency haa been toproceed with rapacious ocean dumping. Id.

Edgar Gold, Handbook on Mariec PA'lotion at 1N ASSURANCE-FORENtNGENCARD }985!.

Id. at 154.

Id. at 20, 182-154.

93

f pollution From Ships, its 1978 Protocol and fivePrevention o o ' MAgpol 1973/78 >I As itsAnnexes, known commonly as, h oal of MARPOL is to reduce the number of incidsuggests, the g oof pollution rom vm vessels through preventative

tak the form of regulations on ope~t nmeasures ta e edesigned to r uced educe both intentional and negligent poll�tion,� idAmong other things, they �! establish discharge criteria for oil,chemica1 and other wastes, �! prohibit discharges of oil and seinto certain areas, �! ban the disposal at sea of plastic sub +nrequire Parties to build adequate facilities at ports for receivincertain residues, and S! require certain pollution control ~uiand maintenance of specialized waste log books on board

Unde~ Article 5, both the flag state and a coastal state in wh hviolation occurs may proceed against an offending vessel. Artand 6 authorize physical inspection and detention of a vowelor at an off-shore terminal of a Party. While boarding a vessel iatransit is not directly addressed, articles 5�! and 7 imply it mayoccur."

Uarnos sa

OverviewThe treaty with the most far-reaching implications for defining a

workable balance between protection of the ocean environment frontthe adverse effects of ocean dumping activities and preservation oftraditional navigational freedoms is the UN Convention on the Law ofthe Sea.~ Articles 192 and 194 of the Convention place a duty onstates to protect and preserve the environment that includes a

u Convention for the Prevention of PoHution Prom Shipe, doer 2 November 1', tllUlf 1519 lQTS!, Protocol to the ConventiOn, «ith ArtneXea, dOnt 1'I February 19rl-

12I g a Party deruee a fptgjg~ chip entry to the porta or off-ehor« temtinale under i'llJuriadlction ot tahra any action aNLinat enrh n ship for the reneos that the ahip doee notcomply «ith the proviaiona of the preaent Convention, tbe Party chait Lmrnediatelyinform the conIul or diplomatic, repewentative of the Party «hoee flag the etup +entitled to Qy ....' emphaai ~ added!. Id. at Artie 5. The 'takee any action 444 Mcould be interpreted to mean taking action oace in port ae oppoeed to port entry deruaor a broader authority to inspect in «atera rrnder ita jMrledictioo. Alticle~ 4 ~~tomdeglp bl dfoh.toav~~m~hy~d.t~~t mad p,b tdoea not exyreae the location of the ahip. N.

tnternational C1261 {1984!.

rn tional Convention on the La«of tbe Sea dont 10 D bar 1ecern

responsibility to "ensure that activities under their jurisdiction orcontrol are so conducted as not to cause damage by pollution to otherStates and their environment....""

A review of the provisions of the 1982 Convention dealing withnavigational freedoms and marine pollution reveals the uneasy tensionthat exists between navigation rights of foreign vessels and the rightsof coastal states to protect their coastal waters from unwantedpollution. Although the conferees drew few bright lines, some guidingprinciples are evident. First, as noted by Edgar Gold, navigationalinterests are no longer paramount in the law of the sea context

Maritime transportation is now reduced to one of many competingocean uses. At the same time, shipping is addressed basically as apolluting industry, and the rules relating to shipping are almost allenvironmentally-oriented.

Similarly, flag state enforcement is no longer supreme. Although thetraditional system of enforcement of pollution laws through applyingregulations of flag states to its own vessels is not totally replaced seeArticle 217!, coastal states have been granted unprecedented enforce-ment powers under Article 220. Third, incidents of intentional andserious pollution not otherwise permitted by the 1982 Conventionextinguish a vessel's innocent passage right. Under Articles 17-19,foreign vessels maintaining continuous and expeditious passagethrough a nation's territorial sea are engaged in innocent passage andmay be interfered with only under certain limited circumstances.Fourth, a coastal state's authority over polluting vessels differsdepending upon which zone the vessel is traversing, with the greatestauthority in one's territorial sea and the least on the high seas. Andunder Article 220, a coastal state's burden of proof for enforcementis proportionate to the interference with navigation rights created byexercising its enforcement authority. Fifth, the 1982 Conventionprefers the setting of uniform international standards for marinepollution prevention and control see Article 211!.

~~fd. at Article 104.

GoM, HandLeat oe Marine potion at S7 cited in noce s!.

97

g ping for yg purpose of DisposalA for ~llutioa by deliberate dumping for the purpols pf dispo}al

d, th o~ratlo~d~h E"!.theconvenhon squiteexplgit other than opera ioArt}c e

' 1 210 places a duty upon states not only to adopt laws topollut}oa call CauScd by QX$5 dumping, but alSO tO implementthat fCQQlfCS perm}SSiOR Of the gOvernment be fOre unde~,.ocean dumping activities. Rates are also encouraged to ~, ithe deve1opment of international standards and practices fp lluaon ~~ by dum».g ~d ~ ~y event

md s~MA a e ao less stringent than international oumping is allo ed within a cr itor'a!

c continental shelf

approval of the coastal state.Under Article 2�, if the illegal dumping occurs within a coastal

state's territorial sea, KKZ, of oa a continental shelf, the coastal stateand flag state have coextensive enforcement authority; dump}nIviolations associated with the loading of wastes or other matter withina nation's territory or at its off-shore terminals may be enforced bythe state ia which the loading is occurriag or the flag state see Artide216!." Article 226 prevents enforcing states from delaying a foreignvessel beyond the time needed for investigation unless release of tllvessel would present an unreasonable threat of damage to the marineenvironment. In such an event, notice must be given to the flag state.

Article 226 limits initial investigation to inspection of appropriatedocuments. If the vessel is aot carryiag the required documeats or ifthe state has clear grounds for believing the condition of the vessel orits equipment is nonconforming to its documents, further inspectioamay be undertaken. Once a violation is found, release must be madeexpeditiously pending banding or other reasonable financial assuranc-es."

lien.~ a~~t} an~ot~~~aehe ~

~~tel to or ~~ hem the ~ rat eg veaaela acct p}aeaa~t efIR44tar re a pg!pcge other thla ~ IaIra ~~ tb ~ e

M a}Ie ~lc}e SSS ~ 4e Sac state to tahe over «afceeemant ~~~ ~ modem

Other pertinent artideg .Aftlclo Ssl Qotjncatloa ~~ISor '~p~a}t t ~m~'

tl}er~+ael Itatea ereetceeemeot acttxN; ~p tNg diecriNbl+joa ~th raIpect tot~, g Sotwgn vaaaa}a; eggs Aggcje Lfs creat} Cr or +}5}}}aC >~ational obiiga4koese reapeetiag ~

98

The 1982 Convention, then, is fairly explicit regarding dumpingsole]y for disposal purposes in territorial seas, KEZs, or on continentalshelves -- all dumping must be done by permission and coastal statesmust pass regulations no less stringent than internationally approvedstandards. Dumping without such permission subjects a vessel to thedelays and expense of physical inspection and possible monetarypenalties.

Other Disc'bargesIntentional disposal other than that transported specifically for

ocean disposal i.e., operational discharges, ocean "littering," andunintentional dumping, such as spills due to marine accidents andloading, discharging, transferring, and bunkering activities!, poses amore complex problem. With the obvious exception of marineaccidents, such discharges into the territorial sea can be regulated bycoastal states so long as they do not hamper innocent passage seeArticles 211�! and 21 l! f!!. Nonetheless, according to Article 220�!,physical inspection of the vessel is explicitly allowed in the territorialsea when the coastal state has clear grounds to believe its marinepollution laws have been violated. And if the evidence so warrants, thevessel may be detained. Any willful and serious pollution in contra-vention of legally applicable pollution laws results in loss of innocentpassage rights under Article 19�! h!.

Article 21�!, ho~ever, prohibits coastal states from enforcingregulations regarding design, construction, manning or equipment offoreign vessels different from those internationally accepted. Similar-ly, pollution related regulations in the EEZ must conform to "generallyaccepted international rules and standards established through thecompetent international organization" the International MaritimeOrganization IMO! see Article 21l�!!. In ecologically sensitive areasof an EEZ, Article 211�! permits states to adopt regulations morestringent than international standards with approval of the IMO."When a coastal nation has clear grounds to believe a vessel has violatedlegally adopted vessel source pollution laws within its EEZ, it canrequire the vessel, while in the EEZ or territorial sea, to giveinformation regarding its identity, port of registry, most recent andnext port of call, and other 'relevant information required to establishwhether a violation has occurred" see Article 220�!!. Article 220�!allows a coastal state which has similar grounds to believe that the

This proviaiom caaiaina I concomitant aotic» provision to the inCernatioaalcoeunuaify.

99

enough to cause or threaten significant poldischarge was sul ', t 'nspect the vessel physically if it refuses to give thelution, to inspected information or if the information provided is tnanifestly,tent with the evidence.

Port states also have some authority Qve f suspected ~llut,-Under Article 2lS, vessels in a port voluntarily are subject tgatlon and poss ble p oceed ngs for discha ges occu

n another state's internal waters, territorial sea, or KEZ.Manne accidents resulting in discharges po~ a 4;ffoblem. First, the Convention attempts to reduce the lik lih

pt rulesbo al law and other parts of the treaty, which promot

and Article 22 permits use of sea lan 4p»n schemes in territorial seas.» In the ca e of

casualty, coastal states are free to act in the EEZ to prevent majorharmful consequences as long as such actions are proportionate to theactual or threatened damage to their coastal interests see Article 22l!,

Straits RegimeRights of a strait state to interfere with transit passage because of

suspected pollution incidents are less clear and arguably more restric-ted. Transit passage applies in straits used for international navigatioabetween one part of the high seas or an KEZ and another see Article37!. Unlike innocent passage, serious and willful pollution does notextinguish transit passage rights. Nonetheless, under Article 39�! b!,vessels are required to comply with generally accepted internationalregulations" governing marine pollution, a provision resembling Arti-cle 21l's EKZ subsection. Arguably this duty encompasses the regula-tions pursuant to the Conventions mentioned earlier, such as theLondon Dumping Convention and MARpoL. If not, a strait statewould be powerless to act against a foreign vessel discharging sewageor other non-noxious, non-oily substances. On the other hand, a stnitstate could argue that dumping of wastes is not encompasse4 in thedefinition of transisolelyforthe u

of transit passage; i.e., that the 'freedom of navigationy purpose of continuous and expeditious transit of a strait

language of Articleg 'cle 38 precludes such polluting activities, particular >when deliberate.

hrtide %l roar require tantara', n~-0 Use . ~ M~+~~ ~LG4 to LlUo use sea l anna. Sea

States bordering straits, pursuant to Article 42�! b!, also may adoptpollution control laws, which give effect to international regulationsregarding the discharge of oil and noxious substances. This right of thecoastal state to control pollution in its territorial sea is clearly more re-strictive than the right given under Article 2l I to other coastal states.

An unanswered question is what part of a strait state's territoriais subject to transit passage. The narrower the geographic range of thetransit passage right, the greater the power of the coastal state to con-trol dumping from vessels. because passage outside the transit passagecorridor would be governed by the innocent passage and ocean dump-ing provisions discussed earlier. States that have established sea lanesand traffic separation schemes should have a lesser problem, arguingthat transit passage should apply only within such lanes.

Enforcement is problematic also. Article 233 specifically states thatthe Section 6 enforcement provisions do not "affect the legal regimeof straits used for international navigation." Thus Article 220�!'sgrant of authority to a coastal state physically to inspect and, possibly,to detain a vessel when it has clear grounds to believe that, while inthe territorial sea, the vessel violated its pollution laws, does not applyto strait states. Instead, strait states are given the vague authority to'take appropriate enforcement measures" against foreign vessels "caus-ing or threatening major damage to the marine environment of thestraits" see Article 233!. Construed strictly, Article 233 prevents astrait state from acting against a ship in transit passage for violationsof its marine pollution laws, except when major damage is likely to ordoes occur. Clearly, the balance struck in regards to internationalstraits is different from that for non-strait states; i.e., navigational in-terests are stronger vis-a-vis strait state anti-pollution interests thanwith respect to other coastal states.

Archipelagic Sea Lme PassageA passage regime similar to transit passage in straits applies in sea

lanes duly established by archipelagic states in their archipelagicwaters and adjacent territorial seas. Article 53 creates the concept ofarchipelagic sea lane passage, the right of navigation for purposes ofcontinuous, expeditious, and unobstructed transit between one part ofthe high seas or EKZ and another. In other waters, innocent passageprevails see Article 52!. Transit passage and archipelagic sea lanespassage are similar as via Article 54, archipelagic states have the sameauthority as strait states to adopt pollution control laws affectingarchipelagic sea lane passage. One critical difference exists: Section 6'senforcement provisions are applicable to archipelagic sea lane passage

101

~ ' ~ to Article 253 exempts it. But Artide 220as no provision simh ~tal state enforcement, makes no reference towhich deals with coasarc ipelagic waters, only territorial seas and pEZs

biguous as 'to the authority of arc} 'Convention is aN iguousenforce their marineth ' 'ne pollution laws agaimt foreign v~1agic sea hnes.

Dispdc Sej jlementThe dispute settlement pro.'gdures in Section 2 of Pmaintain e bahnce worked out in the 1982 ong r ghts of vessel5 and the rights of coa t 1pOHution resulting f fOm ggf~ dumping aCt'viti

th ngs. to disagreements over;nterfere�cg" tate noncompliance with pollution ru ~ ad

it the 1982 Convention see Article 297�!! ~Wte may choose in writing one of four depute mttl

�! the International Tribunal for the Law of the Sea..�! the International Court of Justice;�! an Annex VII constituted arbitration panel. or�! an Annex VHI constituted special arbitral tribunal see Article

287!.

If the parties to the dispute disagree on the method, Article 287 re-quires them to use an Annex VII panel. The importance of the settle-ment procedure provisions lies in their check on arbitrary action by Icoastal state in contravention of navigational rights.

As noted by Professor Thomas A. Clingan, this check is effectiveonly to the extent that the procedures are applicable to a coastalstate." Debate continues as to what provisions of the 1982 Conven-tion reflect customary international hw and can thereby be assertedby a non-party state. Noting this ambiguity, it is nonetheless impor-tant to recognl28 that nothing in the treaty or other international h+prohibits a party and non-party state from voluntarily submitting tothe dispute settlement procedures. And because other treaties such ssthe London Dumping Convention and MARpOL are applicable. stleast as regards certain controversies, non-participants in the 1952

e A. Chnlau, Jr., Vaerg saecePM're~ Piobdclar of jjgtardoaar Ccegch M ~M~, h Jon M. Van 9yhe,Leery Q. ~greta~ ~ J~ R. borg

198$!.NenaNaeal ÃavigoaNL ~ ~ ggz~~~ AS ~ ~ t ~ ~ S tneiiiute,

102

Convention can avail themselves of these treaty enforcement mecha-nisms to the extent they are parties.

Conclusion

While ambiguity exists, a clear trend is emerging which favors pre-venting the ocean from becoming an unrestricted reservoir for man' swaste materials. Navigational rights, formerly almost sacrosanct, aregradually giving way to other values regarding the uM of the world' soceans. Like the corporate polluter on land, vessels are now bound tobehave in an environmentally sound fashion when carrying on the bu-siness of commerce. As discussed above, the world community has ne-gotiated several international treaties designed to curb the pollutingside effects of marine transportation, as well as to prevent unwantedpollution caused by unrestricted deliberate ocean disposal of waste andother materials. Within the context of these treaties, negotiators haveattempted to work out a balance that protects the integrity of theocean environment awhile at the same time causing minimal interfer-ence with vessel movement. Such efforts are likely to continue in thefuture.

Regional agreements such as the 1975 Convention for the Protectionof the Mediterranean Sea Against Pollution and the 1974 HelsinkiConvention regarding the marine environment of the Baltic Sea areawill continue to be important international legal vehicles. The role ofcustomary international law should not be ignored in the process, butalso should not be relied upon too heavily as the time factor in creat-ing customary law militates against its being an effective legal too!against the pressing problems associated with worldwide marine pollu-tion. The 1982 Convention, in conjunction with earlier treaties, pro-vides a solid, basic framework for a rational regime that protects theinterests of coastal states in promoting commerce, transporting rawmaterials for energy production, exercising waste disposal options, andin protecting the resources of the marine environment.

103

lees Shearer: I wou i. I ould like to comment on the fi~t tl,� t noon The first one, by Professor im and P ofK'

t mention archipelagic sea lanes transit p~have been some proties e problems with archipelagic ~a lanes ~

rith the Philippines declaration purportedly made �d309 of the Law of the Sea Convention as an interpret tito which several states, including my own, have object& Iwhether they have any views on that. Tomorrow, when I

mention some issues of archipelagic sea lanes pbo to the %ellington Convention on Drift ~illnet Fzh

~ Ng-caen mentions the interesting Cue tion fg tion of the states to instruct thei

. She did not mention that the grus, 910, exempt warships. There have been calm wh

c

probably now been repairedwhen the Law of the Sea Convention of 1982 comes into operation,and Article 311 edges precedence over any prior treaties other thaathose compatible with the Convention.

I agree with Professor Sugihara's interpretation of the Achilk Lauraincident that it could not be regarded as piracy. Some people tend tothink that the so-called 'two-ship requirement of piracy is a meretechnicality or an historical anomaly. I think good sense supports therequirement that two ships must be involved for the act to qualify Ispiratical, not only for the reasons that Professor Sugihara quite cor-rectly gives, but for another reason. The Law of the Sea Conventionplaces an obligation on ail states to assist in the suppression of piracy,but to caII upon other states in this way is a very serious claim. If it Ia matter purely internal to that ship, in which there is clear flag statejurisdiction, I do not think that claim should be made.

Intervention, however, raises another question. I was thinking of tbeaftermath of the Achille Lauro incident, in which the U.S. forcefuldown an Egyptian airliner. The only possible justification tha't I ha«heard is an implied exception to the prohibition on the use of «~under Article 2, paragraph 4, of the UN Charter, name! y, force usedin the pro~otion of international justice, which, of course, is one ofthe stated principles of the Unit~ Nations. In other words, it wouldhave to be a very narrowly-stated exception. Perhaps it c«'d +applied to a third-state intervention on a shipjacked vessel so that. if

applied to a third-state intervention on a shipjacked vessel so that, ifthat use of force were absolutely necessary to prevent the escape pfpersons who clearly committed a crime recognized as such by interna-tional law, then, and only then, might that use of force be justifiable.

Jgf. Paik Actually, the omission of sea lanes passage in archipelagicwaters has nothing to do with your concern. Don't worry. This paperwas originail'y intended to shed some light on the prpblems in watersarpund Korea. Korea is not an archipelago, so we dp npt have thatproblem. However, because the paper concerns the relationship be-tween the user state and the coastal state with respect to navigation,we may include archipelagic sea lane passage in a later version.

g!gl>pong Kim Today we had a good luncheon speech by His Excel-lency Dr. Mochtar. I thought at that time that he knew that we missedthat issue in our paper. His luncheon speech was a very good supple-ment to our paper.

Ivettc Ng- Jaem I agree that sometimes warships feel that they are notbound by provisions, but I agree with you that when the Law of theSea Convention is in force, this problem will definitely be solved. Ypucannot force warships to render assistance, but you can encouragethem. There is an IMO document on GMDSS which states that war-ships are urged to not to forget the obligation to render assistance.

Tucana Sugihara The qualifications for piracy include the involve-ment of two vessels. But, according to academic theory, when one ves-sel does not attack another, and the boarding, plundering, or violentacts take place on the same vessel, that could be considered, accordingto some theories, a piratical act.

In 1928, at Harvard, there was a draft for a Convention on PiracyActs. According to that draft, one vessel's attack on another consti-tutes piracy, but when the acts are committed within one and the samevessel, the flag state should treat it, and it does not have to involve athird country. This interpretation has been incorporated in the subse-quent draft. F believe that this principle of flag state jurisdiction isimportant. Therefore, I am of the opinion that to qualify for piracy ora piratical act, two vessels are required.

In the Achille Lauro incident, an American aircraft intercepted anEgyptian aircraft. Whether this is legal or not from the viewpoint ofthe UN Charter is very difficult because the use of force is limited toArticle 51 when ihe UN takes enforcement measures.

Another pro blem 4 with Egypt s sending the culprit to Libya Egis a signatory to eto the hostage convention, and from the �,ethat convention ey st'on they should have turned over the cuipr,>

Nilemkwc crAil Vcrlaec h4y comments derive from Professor Ana~d,tervention, w ict n, wh>ch caused me some concern, if I undeectly. To h best of my knowledgerejected the principle of common heritagesignatories to the UN General Assembly Reso!ution that mtabi

"'le and as <ar as I know, the Reagan pfoclafnatjon'~ the deep seabed mining provisions, but not w th ~

mon heritage principle The U5. does disagree with other cogd MM luences that Aow from the application and the

mentation of this principle, but in these d~not alone.

It is particularly important at this very sensitive juncture in theevolution of the I.aw of the Sea Convention that there be no confusioaon this point, particularly as this point is one of the very few, bgpolitically important, ones on which the U5. agrees with the develop-ing countries. If the U.S. position has changed on this matter I hopethat the U5. representatives here will correct me on the issue. And ifI have misunderstood your intervention, Professor Anand, I would likeyou to correct me as well.

Aeatoly Xolodkic I woold like to congratulate aB speakers on theirfundamental theses and reports. I admired their speeches.

For Professor Kim and Professor Paik: it seean to me that SouthKorea is a sovereign state and has no obligation to wait for NorthKorea to ratify UNCLOS. It is my personal view -- and I hope thatmy colleagues from the USSR share it -- that prior notification withregard to innocent passage is absolutely not in compliance. All statesthat signed the Convention have an obligation in accordance withArticle 310 to harmonize their legislation and to put it in compliancew'th the Convention in accordance with the annual appeal of theGeneral Assembly in the United Nations.

I would like to make two points concerning INMARSAT- It w "be appropriate to add, in the legal qpnference here, thl't some sta eprohibit a transm'ransmission through satelbtes from their ports and territorial sea. That is whadopted between

is why a very unportant international agreeme"p between parties to the e!nvention of INMARSAT to oblige

states that si ned th'through satellite. It is ver

'g d this agreement to aHow foreign vessels « t~. It is very important to increase the applicat>on md

uses of tbe INMARSAT system in the international community for thereaspns in your report, pollution, and safety at sea.

The second point concerning INMARSAT: you mentioned flags ofconvenience, and it is very important to add that in l9$6 the UNadppted the new Convention on the Conditions of Registration ofShips. In this Convention we established the provision about the ident-ification and accountability of' shipowners and the obligation of allstates parties to the Convention to establish national administrationstp mpnitor the compliance of all ships with generally accepted rulesand standards adopted within IMO and at other international levels.

On the point concerning the report by Professor Sugihara, it seemstp me that now we have absolutely separate kinds of internationalcrime, My recollection is that when hijacking appeared we also triedtp find some common features with piracy. The principle that youemphasized in your report is to extradite or prosecute all offenders. Iwpuld like to emphasize that within the IMO Safety Committee, Sovietand other representatives supported the U.S. proposal to elaboratemeasures in each international port, as in airports, to control and tocheck the baggage and passengers. Experts from the U.S. visited ourport of Yalta in the Crimea and exchanged their views and experience.

The last point is on the report by Professor Jarman. I fully agreewith your provision with regard tp archipelagic ~aters. I am not in aposition tp agree with the speaker, who omitted the very importantpoint that the archipelagic state has the obligation to comply with UNConvention Articles 53 and 54. Archipelagic waters are not internalwaters, and all states have a right to enjoy transit passage or archipel-agic passage.

Geo j frowy Hotlarut. I work for the Department of Fisheries and Oceansin Canada. One of my responsibilities has kept me in close associationwith the London Dumping Convention. The gap that is recognized inthis Convention is the possibility of pollution of the international areaby non-contracting parties of the Convention. As pollution controls onland become more stringent, the high seas become more vulnerable. Iwould like to ask Mr. Sugihara to comment on the possibility of a fu-ture international mechanism for control of ships on the high seas thathave engaged in, or are suspected of the intent to engage in, illicitdumping activities. IOicit in this context must be defined, as ProfessorJarman said, as contrary to generally accepted international rules andstandards. Perhaps Professor Sugihara would comment pn a corollaryto that question, the possible right of strait states or coastal states tointerfere with the transit of a ship not actually dumping in the coastal

l07

arRtcfs or anomomic zone but suspected of illicit dumping in the inter-national areas ei1 eas either prior or post-transit. That iscouFÃ.

"f occLG dumping is concernedConvention exists. That Convention does not totallyat sea; it just restricts dumping activities, and sueyfurthered and reinforced. That direction is probably the m

that case, how can we restrict, suppress,dumping activities?

I think we should not permit the intervention o f foreign vesselssuppress the illicit dumping activity of another vessel, because thap llutant or the substance to be disposed of in the ocean has begenerated in some country on had. and the vessel is just transportithat obnoxious substance. S the country that,.s respons,bl fgeneration of such waste should be held responsible for regulatisuch dumping activities. The spirit of the 1972 Convention should bereinforced by enforcing its restrictions.

Casey Jannm As to the Law of the Sea Treaty's current regime forstraits, I find it difficult to argue that a strait state can interfere withthe transit passage of a vessel whose polluting activities occurred iathe high seas outside of the strait. It seems to me that was not contem-plated by the negotiators.

To the extent that the Treaty encourages states to develop interna-tionally acceptable standards rehiring to pollution of coastal states'waters, perhaps it could ultimately be dealt with ia the future. I'm notsure how nation states other than the U5. have interpreted their re-sponsibilities under the London Dumping Convention, but under theU.S. Ocean Dumping Act, U5. aatioaah are not permit ted to dump o~the high seas or anywhere in the ocean without a permit from the U~.To the extent that other nations pass similar laws, clearly the Aag sta«of the vessel would have the authority to deal with the issue. PerhaPs.in some type of diplomatic conversation between the government o<the flae Bag ship of the vessel or the vessel itself and the strait state, maccommodation could be worked out. My reading of the Treaty, as itstands is that i wthat it was not contemplated as an authority given to straitstates under the Law of the Sea Treaty regime.

A astir Cou r. I wpe . I would like to make a comment following Prof~'Kolodkin's remarks onShips and Ivette's ve

a ks on the 1986 Convention on the Regis«at'one s very good paper on this subject. The flag o"

convenience has been changing in function and in form. Its functionoriginally was to escape national laws relating to levels of technologyand safety and national fiscal laws. This then changed to enableshipowners to employ low-cost crews. So the function changed. Theform is also changing. In Europe, most of the countries from Norwaythrough to France are setting up offshore registries. That is, they arebringing ships back from flags of convenience and putting them undertheir own national flags or quasi-national Aags, in which ail their ownlaws apply apart from those that are laid down as not applying in thenew registrations. In other words, they can now employ crews fromanywhere in the world. They have ships under a national flag as agenuine link, as in the 1982 Convention and the 1986 Convention, butthey can go anywhere in the world and employ not only ratings, butin many cases, officers.

The seafarers in Europe are declining. Navigation schools are beingclosed. Seafarers in Japan are declining. Again it is not just ratings.Japan, twelve years ago, had 20,000 ships' officers. Today theyprobably have about 8,000. Now, many officers and most ratings--about 70 percent of seafarers � come from Asia. I would guess thatin the next five to ten years, at least half of the world's ships will haveseafarers who are from countries other than from the countries thatown these ships.

This has very interesting implications, particularly for developingcountries. I was in the Philippines recently and there was a very fineFilipino ship tied up because it couldn't get engineers. 60,000 Filipinosare sailing with foreign ships, 42,000 South Koreans, and so on. Thedivision of labor in shipping has changed. Shipping has become inter-nationalized. I'm not necessarily complaining about this, but there isa view that national registrations are fairly meaningless and we shouldhave an international registration for ships in which all the II-O, IMO,and other relevant Conventions apply and will be enforced by the portstate. I would like to hear Ivette's view on that.

Ivette Ng- Jaem The internationalization of ship registration would bea wonderful idea. It would eliminate many political problems andenable us to concentrate on the real issue, which is upgrading theQuality of shipping activities. I realize that it would probably be verydifficult to put into force, because states still want to be sovereign andto have "control" over activities. Measures to internationalize shippingactivities would be very beneficial, because we are too focussed onpolitical issues. Spending hours talking about flags of convenience andhow awful and evil they are does nothing to improve the situation.

The tea-odd years spent by UNCLAD ia meetings in Geneva was ztay opQQQa money wlsted. The co ave a tio a is d i f f ic ul t to put intofierce becluse people put so much feeling into it. There are so Q|alyhard feehngs, such resentment, that the Convention is Put aside .<should have taken all the money speat by UNCTA D in those years Iltljust donated it to shipping academies around the world or to develop.lag countries or to%MV. l really think if we could work it put >twould be a wonderful idea.

SESSION m:

LIVING RESOURCES PART 1!

IS COASTAL STATE FISHERY MANAGEMENT SUCCESSFULOR NOT2

Douglas M. JohnstonCentre for Asia-Pacific Initiatives

University of Victoria

Introduc tioa

The arrival of a new decade, like that of a new year, is a time forstock-taking, for looking back as well as forward. Did the 1980s liveup to their promise and deliver expected improvements in the man-agement of the world's fisheries' What impacts on fishery manage-ment and development! are discernible since most coastal states beganto institute 200 nm national zones in the late 1970s2 To what extentcan success or failure be attributed to the advent of the exclusiveeconomic zone EEZ! regime, or more generally to the world-widephenomenon of extended fishery jurisdiction EFJ! vested in thecoastal state7

Of the many criteria that can be applied to these difficult questions,only a few can be considered in this paper. Somewhat arbitrarily, Ihave chosen six for special attention: world food production; nationaleconomic development; international equity; conformity withinternational norms; control of inter-state issues, disputes andconflicts; and managerial effectiveness.

World FOOd PrOduCtian

The advent of EFJ seems to have had relatively little effect on theproduction of needed proteins and oils from the sea. The most recentpublished statistics show an increase in the world fishing catch from70,207,000 metric tons in 1978 to 92,693,400 metric tons in 1987,'This increase of over 32 percent in nine years is close to mostlong-term projections of world fish production made in the earlyl970s before the era of EFJ. In this most basic sense, then, humanwelfare has been neither enhanced nor impaired by the establishmentof the EEZ.

On the face of things, however, the element of sovereign discretionvested in the managing coastal state, under Articles 56, 61, and 62 of

FAO, 1987 Vearbook Of Fishery SauiaicS; CatcheS and LandingS, 84:10S.

113

l982 Ug Convention on the Law of the Sea,' hl Prevailed overthe princip}e of "optimum uti!ization" of EEZ s ocks.' Predictably<~~ states have been moved by their immediate national interest&ther th a~~of worldprotein ~uirement, in deciding wheth r~ COlnply with the "duty tO negOtiate" aCCeSS agreementS with diStantfish}ng states interested in harvesting unuti}ized "surplus stocks" in qCOaStal State'S EEZ waterS. TO the extent that a Pril}cipled balanCe wISs�p~ed to be struck, the system has not yet succeeded. But it is t

ly to pmict the future growth Md imp ct of joint ventur~, jointdevelopment arrangements, and regional and other forms of cooperation in the world's fisheries; and therefore too early to say whether t}Ncoastal state system of fishery management has failed the world foodproduction test.

National Economic Derelopmeat

Since the world's fisheries constitute a closed system and ~ @fishery production has not increased very substantially, we wpi}ldexpect to find that increased hndings by certain coastal states havebeen made at the exyense of certain distant-water fishing states.' Yetthe ranking of the world's leading fish producers by tonnage! has not

2hectic}e N h the hey coostit«t}ve provision on II entitlement, voting po«ess iathe coastal state that hW«}e 'eeveseign rights to tbe living r«eonrcee or tbe 306 am~ cN«e. Artie}as gt anc} es, respectively, achno~ge tbe coastal state'e nnahared anthacity«ith epact te the determi«atim af 'ala«ab}a CatCh' aalu OC ite o«n Meetingcapac}ty «ith respect to the hving ~~ «itb}n tbe REX.

Tbe cesetal state's ~powibiTity to 'peosnote the objective oC optinnun ntiTisatien'ie shade esphcit in Artide IN, and ~AeM by the express obligation to I~i}ate

a}}o«able catch' !aaangements «ith statee eeehing to hazveet ggplne etoche ic. the entplne < tbII

pcinc}pled balance, ~ Dmgglaa M. Jc4neton, Bk l~«seeon the concept ot a sspnat «e«mtmhacaacy ~y! Ne«Haven: New Haven ~

oehecht: Martin«e N}jhow Pabhebesa, 19gg, 1Qgg, pp. t,VGI-LJQl- See a}so DD.gg~gygg Ocean M«ILagagnent gag tbe La«gf tbe 5'; S~

of >en}a} < ~ te Fiebesies, 10 Bc«i~ @san {jlwnarty $11 �MO!.

n eeblct}on meath' Ue to Do Patter i <~gggq yf leP4ic

!}eU4iChm. seatt}e gag Landon-. Univac«}ty of Waahis~toO P~

114

changed dramatically between 1978 and 1987.' From the list of thetop fifteen fishing states in 1978 only one Spain! has dropped out infavor of another North Korea!. Of these sixteen states, Chile recordedthe biggest increase in catch almost 150 percent! over the nine years,rising from tenth to fifth position. According to these figures, a verysubstantial increase has also been made by China. At the next level ofnational production, large gains have been recorded by Mexico nowln Seventeenth plaCe! and SOuth Africa twentieth!. At 1Ower levelS,the most spectacular increases in landings are found in the statisticsfor New Zealand an increase of 233 percent!, for Turkey �56percent!, and for Ireland �3 I percent!. At much more modest levelsof national fish production, significant increases are recorded forsmall, developing states such as the Dominican Republic, Fiji,Mauritania, and the Solomons.

For the sake of completeness, it might be added that reductions havebeen reported by Norway, Iceland, Spain, and the United Kingdomand only slightly increased tonnages by leading producers such asThailand, Denmark, and Canada.' Moreover, relatively little changehas taken place in recent years in the ranking of the world's leadingexporters of fish and fishery products measured in dollars.'

Official fishery statistics, however, are much too deficient tosupport precise calculations of national economic benefits and losses,'

See FAO 'Ycarbcek �987!, supra note 1, p. 97.

FAO, jN7 Yaubcekof Fishay Sassisrirw Gmsmodracr, Vol. 65, p. 26. Between 1985 and1987 the moat impressive gain in earnings from fiahery exports waa by China, which rosefrom 4192,47B,000 to 4586,920,000: that ia, from fourteenth to ninth position. In realterms only Japan appears to have lost ground as an exporter, dropping from fifth placeto tenth. For detailed European and otl.er regle nal fphery trade figures, we OECD,Fitheia fssua; 7hgdg act Acorn go geaourccr �989!, pp. 18-22.

It would be especially interesting, and perhaps useful, to have data oa capital, laborand prices. For a proposal to improve existing fishery statistics, we Giulio Pontecorvo,The State ot worldwide Fishery Statistics: A Modest Proposal, S M4rinc' Wourcr

79 �988!. Amos~ hia recommendationa, the author suggest that "[ijf the 5ratcountry Japan, USSR, China, USA, Chile, Peru, India, South Korea, and

Indoneeiaj would provide data on capital, labor and prices, almost t«o-thirds of the«orld catch could be better analyaad; and it «e include the next nine {Thailand, thePhilippines, Nor«ay, North Korea, Denmark, Iceland, Canada, Mexico, and Spain j, theproportion ot total landings increase[aJ to four-fifths of the total. If this bmited numberof countriea could be persuaded to aubnut the «dditional data, the FAO could easilyincorporate it into the existing reporting system.' M., at 81. For reactions to this

115

and theprovided are mLslead ing in several respects

f' ~e; give very little assistance in the calculatioa Of'roanage igu es f' h'aoalie~ -- ~aOmiC beaefits deriv& frOm OCean iS 'ag EstimateS CaN

be ~e of direct revenues whea catch composition figures are addedin, ut reiab t ~liable information on domestic intra-national! sales is

w ely difficult to determine. Foreign trade figures are availablefor the fmh-exportiag countries, but these reveal only a part of thefishing industry Picture for these states Even more formidabgdifficulties face the researcher seekiag to calculate indirect benefitsmd bOth direCt and indireCt COStS. Any sChOlarly ef fOrt tO establiSh aa

urate measurement of aet economic benefit for the fishing statesof the world seems doomed to failure.

Extreme successes and failures in the development and maintenof a national fishing industry can, of course, be identified in vario<impressionistic ways. As the world moves decisively ia the d!rgQt,pgof market economics, profitability may become an increasinglyreliable criterion of industrial success and failure. At present only sfew developed fishing statesare constrained directly by considerationsof corporate profitability, and even in these countries polititmlpressures force the government aad the public to absorb the hiddencost of inefficiencies arising from chronic overcapacity of labor,capital, aad equipment." Presumably the fishing states of EasteraEurope wiB soon be facing the same government subsidy dilemma~

propoeal, eee commente by Michael A. Robinson and Francee T. Chriety, Jr., in 6 MarutRme rc &~eN cr as {lse9!, ~ by aW Oiinand in ~., aa. For ae r piy to 44commenta, eee note by Pontecorvo, ibid., 8'T.

"trodden down puree for 5ahery importe and «aporte are incomplete, &it eem4imNava0able both in toanaaee and doNar vain'. See FAO Ycurteat {1QSy!, ~ note Spss&lc

1~a e overcapacity {or overcro«ding! pre hain ie virtiiaNy cxciiiaive to the developed

Seinng etatee. See, for exainpie Gimnar Iaeteredai, "Fiaheriee Menace me it in tbeNortheeet Atbatic aad in Namibia: A Comparative Deacription, in Milee, ~ note Spp'll ~I% C Doubleday aadotheea, Thehapactof Extended Fieheriee Jnriedic+ + N~«~ +iantic htif pp IS-8; Albert %. Koare, Neet Trende +

> The Northeast h4lantic: EKC', ih f., pp. yy-11'; and Choon-ho Pa i ,f th hf~~~nt ~ D~~~t

~ F"heri - Tb N~~ I'Icicle Regiae @id, pp. 1Yi-184.tt ie aom al to 4et' LlmIh t«o hhcie of enbeidiee for tha 5ehigg indgetOr: ~

deeisned to eu the" ~d iItry ae a «hole, or a large eector thereof, for job mam>y p ction ielionai deveiopment, or other ciommtic purp Neei an

~~~' bt~th ~~~ V~t C~TT~~,t r~~~~y~Pmw>~t~ «~th Wt ~~. Th~f~m~~

l l6

that has confronted such states as Canada, Norway, and the EpCstates, where fishing accounts for a very small proportion of the grossnational product and engages only a small segment of the totalworking pppulation.

Presumably, economists have tried to calculate the corporate ornational "opportunity cost" associated with the loss of "traditional"distant-water fishing grounds now enclosed within the 2pp nm EFZlimits of foreign states. New costs in the form of license fees and othernegotiated conditions of access to these foreign zones are usually madeknown, but these costs should have to be balanced against newbenefits, such as those arising from the discovery of abundant,unutilized stocks by displaced fleets and the net benefit of participa-tion in successful joint ventures. In short, it may be virtually impossi-ble tp calculate with precision the costs and benefits of displacernentfpr distant fishing states."

As for developing coastal states, which were generally regarded atUNCLOS III as the most deserving beneficiaries of the KKZ regime,it is certainly too early to assess the viability of the new or recentlyexpanded fishing industries in many of these countries. But clearly,

iasuea are comphcated by the fact that questions of resource management are governedby the new UNCI OS HI regime and arguably not subject to trade rules. Fislrerks Issuer,nqan note 8, p. 9. On the uae of 6ahing industry aubsidiea in the OECD countriea, aeeibid., pp. 48- 47.

In Che case of the EEC, for example, no member state engages more Chan 8 percentof ita total working force in Che Gahing industry, and in none ia the fishing industry'acontribution Co gross national producC higher than 0.7 percenC. Yet EEC fshery iaaueacontinue to Cake up conference time and political energy wholly disproportionate Co their~ conomic significance. Koera, mpra note ll, et 111.

' In the Japanese experience, overaH fish production haa been maintained, and~ ven increased slightly, but profitability hea declined. Pive principal reasons for reducedp~ta have been suggested: i! higher costa of fuel oila, crew wages, vessel construction,and Sighing materials; ii! the extended length of fiahing trips caused by lower catcheaper unit of effort; iii! additional ecceaa fees; iv! increased administrative costa for

in foreign EEZ'a; and v! atagnant markets because of changes in fish consump-tion patterna. Norio F ujinami, "Perspectives of ~ Fiahing Nation: Japan," in Milee, supranote 6, pp. 186-200 at 195. The author prescribes Che need for Che Japanese fishingindustry to become leaa energy and labor intensive and Co tahe advantage of the currenthealth Crenda in eating in order Co stimulate increased demand for seafood. On thersorganiaation of Japanese fishing fleets in the years of displacement �971-1980!, aee~-i at PP- 196-200. See also Lewis E. Queirola and Richard S. Johnston, "Distant.~er Fiahing Nations and Extended Fiahcriea Juriadiction,' lS Mm&u'Poficy 16 �989!.

117

albeit impression~ canautically it seems that major fishing states like China,Chile, Peru, n ia,, P, India indonesia, the Philippines, cnorth Ko

ha e pr pered in some degree as a consequence of thMexico ve pregime, jus as ct iearly as it appears that develppins s such as South Korea, Taiwan and Th»land h

ically. Many of thnerable, most ocean-dependent, island and co~t l

, the Caribbean, and eis whg g at appear to be lasting b nefi> f,

titl

~e prospect of economic gain, however n,ayke m&blishment of a viable domestic fishing indust h

g 'on and maintenance of regional and c~~rat f. �8 gemenh with distant fishing fleets and th

development of appropriate diplomatic and managerial skills.What is clearer than the quantifiable extent of economic gaia

among developing coastal states is the reality of an immeasurablepsychic or sociopolitical gain in terms of national autonomy: anenhanced "international status and national pride that result frombeing able to deal with larger, more developed countries on an equalbasis, in many cases for the first time."" Ultimately, this psychic gaiamay be the most important developmental result of the new worldwidesystem of coastal state fishery management.

ln conclusion, it must be emphasized that the economic perfor-mance of fishing states in general since EFJ cannot be attributed toany single factor such as this, however important that emergencemight seem to be in historic perspective. Costs and benefits since l975have been influenced by many factors, not least the increase in fuel,labor, and vessel construction and maintenance costs."

41" ~ ~ 4000545 $!I~@ Lo coRQC4l gt4C45 84 h FOOQB of EF~: i! ~; ii! ~hnga; iii! traimiag of 1ocal 5ahe~; >!

; v! caoperatioa iu traiauag and reeearch; m! ~~"»' ~ ~! >~i ~~<~. aiba . Ed atd L., Iatroduction., in Mme,5vp~ ~o>5, pp. XV-XX1 ~ XVI.

16'aaron@, gyp' gag 5

l7~~i ~ note 11, ~ p. tat

118

International Equity

On a totally different plane, it can be argued that the majorpurpose of coastal state fishery management is ethical rather thannutritional or economic; that is, that authority over ocean fisheries wasvested, very largely, in coastal states with a view to effecting aredistribution of power and wealth in favor of coastal -- andespecially developing coastal -- states. The world-wide acceptance ofKFj in state practice, and its adoption at UNCLOS III, represents anominal victory for the coastal states, but real equity is notoriouslyelusive in the worM community.

As Arvid Pardo has argued on many occasions, the extension ofcoastal state jurisdiction was a curiously flawed approach to theProblem of securing distributive justice for the disadvantaged nationsof the world." Whether it was the only realistic approach, given thedynamics of global diplomacy governing UNCLOS III, may bedebated, but it is Probably more useful in the 1990s to test the equityof EFJ in light of events since the conclusion of UNCLOS III.

Obviously treaty texts on their own, however enlightened, cannotremedy structural disparities inherent in the nation-state system, andit is possible to argue that inequity will persist until at least the worstevidences of interstate disparity have been eliminated. In the here andnow, however, most of us may be prepared to live with a lessdemanding standard of distributive justice, provided we see nointrusion of unreasonable obstades designed to block the efforts ofdeveloping coastal states in general, and of small, highly vulnerable,underdeveloped, ocean-dependent states in particular, to takeadvantage of the new opportunities available to them under the coastalstate system of fishery management," In the absence of such block-

See, for example, Pardo, Arvid, "The Convention on the Law of the Sea: APreliminary Appraisal, 20 San Diego Law Review 489 �982/851. On the deficienciea ofthe Convention from the viewpoint of developing states, see in particular, ibid., pp.498-501, Yet EF J still enjoys a symbolic aigni6cance in the minda of some, even amongspecialists in fishery management. One such apeciahat haa described the new regime aa'a decoloniaation of international fiaheriea." Jean-Paul Troadec, The Mutation of Nor!dFisheries: Ita Effects on Management Priorities and Practices, in Miles, supra nota 2, pp.1-18 at 1B.

The meaning of injustice haa been thoroughly discussed in recent years, especiallysince the publication of John Rawla, A Theory of Jusicc Cambridge, Maaa: HarvardUniversity Presa, 1971j. This debate haa been dominated by moral philosophers and legaltheorists, «ho are more or lese detached from current ethical issues in international law

119

ages we aeS we may Continue tO plaCe faith in the se f - re!i ance ethic, wh~h

suppoports that syst+g." In the meantime, it is encouraging to witness

the SUCceSS pf "COI}eCtive Self-relianCe arrangementS SuCh aS theFOrum FiSherieS AgenCy in the South ACifiC," both as a regime fprthat region and as a possible model for other regions of small, highlyvuherable, UnderdevelOPed, OCean-dependent States."COftferlalty arith lateraatlanal NOrlaS

Many international lawyers -- and perhaps especiallyinfluenced by the chssical 'European tradition' in the discipline~-look to the 1982 UN Convention on the Law of the Sea as crucial hthe development of international rules to govern all stateactivities in our ocean environment. In the orthodox view pf th

ry important to secure compliance with these «les ~ ��,-f

and pohtica. On diatributiva juatice in the context of world community Ieaourcepmbhana, ew Oacar Schechter, Shsmeq thr $Ya4fs Resources Columbia Univeraity p~1'!; end Douglaa M. Johnaton, 'Tbe Poundetiona of Juatice in International Lew', ~LoaaId St. J. Macdonald, Dougiea M. Johnaton, and Gerald L. Morria, 7%@ Isamenmg@ac cad Poky 0f Hunsua IVefjbtr Alphea aen den Rijn: Sijtboff end Noordhoff, IQt5!,yy. 111-14$.

fbe UNCLOS III ayatem of extended coeatel atete juriadiction ia deaigned Co rewanlthe propinquity of the neareat adjacent atete, preaImably with a view to eaaiating theiergeat poeeiMa number of atatea to devehrp in the direction of neCionel autonomy overphyaicelly avaBeble reaourcea.

See for ~u4, Lw Clarh, Trenda end Implicetiona of E tended Coeatel StateCa for the Mauayanent end Development of Fiaberiee: The Wwt Central

d So«hw~ p~; m Ma, ~ ~ s, py. F61-ape; wui.~ M. Such~

F~r~h . Aa ~,. 1s~~~~~I+ �~y!i and David >- Douhnen 'In Purauit of Fiaheriea ~~m:

u ~ Porum pnhanea Aleney, 18 UnNarany Of H~ ~ ~ lan

PPAaamodeL J. SwanM t. ' ' ~i ~ preeented et the Peci5c Iaianda Law Of6cera Annealee in', 1'-1sep ~ub~

~On North Ame&~ reaction to Che ''European tradition, aee Do&core ic of ln ionel Law: A Cenekaa pereM'vereorm ic aaea of International

tb 19ae COnfereI~ <etionel Law, 1988!, pp. 45-4S.

and universally as the real world permits. ideally, all states, large andsmall, should sign, ratify, implement, and conform. All normativeprovisions in this "law-making" treaty are deemed to be rules, old ornew, or, if too general to be rules, then principles. Both kinds of�orms are, it is said, designed to "govern" situations.

The difficulty with this orthodox view -- perhaps slightlycaricatured -- is that many of the normative provisions of the 1982Convention do not generate realistic expectations of anything close touniformity or universality in ratification, implementation, or compli-ance. Accordingly, the "functionalist" question arising from UNCLOSiii is whether those provisions farthest removed from the classical"unitarian" ideal should be upheld, despite everything, on the groundof near-universal signature or ratificatory evolution of the instrumentas a whole; or disqualified as rules or principles and given some lessernormative status, such as that of "criteria" or "guidelines," that reflectsmore accurately their operational significance in the behavior ofstates.~ No one should be eager to downgrade the legal significanceof globally negotiated norms, if the negotiating states seem to haveshared essentially similar perceptions of the meaning and operationalsignificance of such provisions. The truth is that legal development atthe UN level is, at best, an untidy affair, operating by necessity atsuboptimal levels of understanding. UNCLOS ili was an exercise inwise diplomacy, and much of the language adopted, including thefishery provisions, served the purpose of deferring unresolved issuesto be dealt with in context by the most interested states."

The best way of dealing with such questions that cause severediscomfort at the level of abstraction is -- in context! The problem of

For a general treatment, aee Douglaa M. Johnaton, Functionaliam in the Theoryof International Law, 26 Canadian Yearboet oe Insennuioaal Law 5 �988!.

For example, deferral waa the only poaaihle UNCLOS III treatment of the highlymigratory atocta" controveray over the queation whether the caaatal atate'a 'aavereignrighta in isa EEZ ahould prevail over the general principle of international cooperation.The papering over of thia political iaaue reaulted in the "tcxtualiaatian of thecontroveray, which now tates the form of a legal diapute over the interpretation ofparagraph 2 of Article 64. See 1amea Joaeph, 'Statua of the Tuna Fiahery int he EaaternPacific Ocean with regard to Management,' in Milea, supra note 6, pp. 210-226 at228-2N. Aa far aa the tuna controveray between the U.S. and the FFA atatea iaconcerned, the iaaue waa reaolved through negotiationa in 1987. B. Martin Taamenyi,'The Treaty on Fiaheriea between the Governmenta of Certain Pacific Ialand Statea andthe Government of the United Statea of America: The Final Chapter in United StateaTuna Policy," 15 & padrlyn Joisrnal of Inccrnationul Law 185 �989!

l21

apn conformity with certain fishery maaagement provisions in1982 Convention, such as the principle of optimum utilizatioa and tbedut� tp negotiate arrangements for foreign state access to surplusst k, should be viewed both ia the context of world food productiona~aadopport nit~and ia th tof sp ific nation~ aad regNedeconomic development needs aad opportunities ln my view, contextshould rarely, if ever, be allowed to negate recent, globally negotiatedprovisions with normative content, such as the fishery provisions 0UNCLQ5 HI; but context may permit a considerable degree pfvariation in interpretation, something less than universalifyrafification, and even substantial diversity in the degree aad mode ofimplementation.

The evil to be combatted is aot deviation from the universal no~as such, but unreasonable and persistently self-interested deviationthat threafeas to undermine a global system that was, presumably,negotiated in good faith for the beaefit of the world commuaity as swhole. Ia my view, the coastal state fishery management system hasnot failed because of aoa-conformity with the norms of' UNCLOS 111.

Control of Iaterstate hsees, Nsyetes aad Eoaflicts

A stronger case for system failure can be made on the grouad that,although the world's KEZs encompass more than 90 percent of themajor commercial stocks of fish, aad although a high order ofdiscretionary authority has been vested ia the coastal state, a numberof serious fishery-related issues, disputes, and even conflicts haveerupted around the world. indeed one is tempted to assert boldly thatthe coastal state system of fishery management has failed the politi-cal" test of conflict avoidance. These problems have been discussed inthe literature, aad some will be dealt with ia detail by the speakerswho follow me: the problems of straddliag stocks,~ drift-netting on

oceana laatitute ocOC Canada, Qmsggk~g Fagepy gaa~ea Apped gag NiJca CcuNdl>~ + ~ N'~~~+~~~~~ 4~44g $4oc4 {lQQO!; Winiam T. Burke, F~Ne ~ See DOEIUC: S~gllha s~ and the Ner lntematioaai La» ot' Filh~J4vke 285 �'!; Rg»~ t,.

Seacka Preb4m; The N~»~

4f the Sar Coevee4we 77roogh hN~~er + Lbe See 4e44ute, lQQO!, pp. %SR-SlT.

the high seas," protection of marine mammals,~ access to highlymigratory species inside the EEZ,~ illegal salmon fishing on the highseas,~ and the general prOblems Of displaCelnent" and fiSheryenforcement,~

All of these problems impinge, directly or indirectly, on themanagerial effectiveness of coastal states. Taken together, they mightbe said to threaten the viability of the UNCLOS III system. But if thisis a truth, it is one of the variable kind. Fishery disputes have alwaystended to generate more heat than light. Scholars should be careful, inthe sCientific tradition, not tO be Swept away by pOpular elnOtiOnS ina context notoriously susceptible to rhetoric and hyperbole. Yet,whatever the merits of the allegations and rebuttals on each of these

Douglae M. Johnston, The Driftaetting Problem in the Pacific Ocean: LegalOoaeideratioae and Diplomatic Optioae, 21 Ocean Developmertt and leternuionol Law 1�990!.

+John Warren Kindt aad Charles J. Wiatheieer, "The Coaaervatioa and Protectionof Marine Matamale, 7 University of Hawaii Law Rev. 501 �986!; aad eympoaium oawhaling, at 17 Lkttver Jounud of Itrtetnatiotral Law and Policy 249 �989!.

Ray Hilborn aad John Sibert, Ia International Management of Tuna Neceaeazyt12 Naritte Policy S1 �988!; William T. Burke, 'Highly Migratory Speciee in Che New Lawof Che Sea, 14 Oceatt Developmettt and Ittterttaticrttal Law Jourttal 275 �984!; and Joseph,siyra note 2$.

Edward L. Milee, 7lCe U.S./Japaro Fisheries Rdaaotrship itt the ¹taheast PacijKe: PraraGej5cl to Cooperation Seattle: Fieheriea Management Foundation and Fiaheriee ReeearchInetitute of Che Univereity of Waahiagtoa, 1989!, pp. 44-89; aad Jill L. Bubier,'International Management of Atlantic Saltnon: Equitable Sharing aad BuildingCormeaeue, 19 Oceatt Clevelopraertt and ltrterttatiowal Law 56 �988!.

For example, on Thailand'e problems, aee Ted L. McDormaa and P. Taeaeeyaaond,"hicreaeing Probleme for Thailand'e Fiaheriea: Malayeia'e New Fieheriee Law, 11 ManrsePM' 206 �987!; aad Ted L. McDorman, "Thailaad'a Fieheriee: A Victim of 200-MileZoaee, 16 Ocean Developtttettt and ltrtematiorutl Law 18$ �986!. See aleo Part, supra note11, and Fujinami, supra note 14.

Chere ie very little literature oa trende in fiehery eaforcemeat «rouad the world,y, iC eeeme, because of the difficulty of securing acceee to relevaaC information aad

of the eeaaitivity of eaforcemeat ieauea. On fiehery eurveillance aad inspection practiceein the Southwest Pacific, eee Swan, supra note 22. See aleo J, G. Sutiaen, h. Rieaer, andJ. R. Qauvin, 'Meaauriag and Explaining Noncompliance ia Federally ManagedFieheriee,' 21 Oceati Devekytacat atrial Itttetaaional Law 856 �990!.

issues, the cumu, th NulStlve effect of controversy in world f shcreation o in ef Nt nsc and gfpwtng political pressures tostabd>ze e ex' y I

whether by a real extension of national jurisdiction, by ncw entitlements o f search and seizure

by stronger international enforcement arrangement on th h; �by regional and other Ends p f cooperative reg~mm, by iventure or joint development strategies, or by a comb~ «cs The need f«areaspnedapprpach is

~ag«al Effectiveness

W t e most difficult question of all is whether thimpaired the work of specialist a d ff; .

y. ~agement and conservation Ap ed survey pf vaf ious regipm

gement systems." Fishery managementhe past when most managem �t h

focused on hrge-scale, international fisheries dominated by developedstates, too much weight was given to fishing effort, and not enough toenvironmental and hydroclimatic factors. ln short, the naturalvariability of stocks was underestimated." Today it is recognizedmore widely that fishery management cannot be conducted pn thebasis of informational certainty. Demands that fishery managementmeet political and social objectives add to the natural uncertaintyinherent in the field." Despite the continuing popularity of catchquotas as a management technique in several regions, the truthapparently is that there is no golden road to Samarkand. All manage-ment techniques have advantages and disadvantages, and the need to

avauabta te COaatal atatee, euCh aa Canada, faCed «ith a thnatelnnsa~ ~~~ ~ tt ~«~ h t ~ th - mZ, ~ ~~g F~

>~~ Bcyee4 2N Mcr, aqua note 26.

Tcoadoc, Jgpllg note $1 p

Jo hn Gnnand 'Fm~6, pp. 266-272 at 267.

' ~Manalen~t:S Caneeuema 7 In~» ~n +

l24

maintain an open, experimental frame of mind is perhaps the chiefprerequisite to almost any effective fishery management system.~

The central role assigned to coastal states in ocean fisherydevelopment, management and conservation does, on the face ofthings mean a less diffuse approach to decision-making than waspossible in the age when regional fishery commissions were domi-nant." It might also seem that the reduced mobility of the worldfishing industry is conducive to more effective management. Butmanaging coastal states in general have failed so far, it is said, todevelop a working formuh designed to achieve socioeconomicoptimization;" and it is felt that few have made the hard politicaldecisions necessary to deal with the domestic problem of allocation,perhaps because of the lack of supportive public opinion.~

Obviously, the increasingly diffuse, eclectic nature of fisherymanagement rationale, at global, regional, and national levels defeatsthe possibility of establishing an intellectually sound case for oragainst EFJ by the test of managerial effectiveness. The moredOg1natiC One chooSes tO be about the "right" apprOaCh tO fisherymanagement, the bolder one can be in purporting to evaluate thesuccess or failure of the coastal state system. But pragmatism, notdogma, is the new order of the day.

Conclusions

These nutritional, economic, ethical, juridical, political, and1nanagerial Criteria SuggeSt different anSwerS tO the queStiOn I waSasked to address. All the answers are tentative in some degree. If anyone criterion can be singled out for special attention, it should perhapsbe the political. Virtually all the interstate issues, disputes, andconflicts with which today's conference sessions are concerned arereflections of increasing dissatisfaction with the UNCLOS III systemof fishery management on the part of the managing coastal states. For

Ibid., p. 268.

8aetcredal, supra note 11, p. 21.

Troadec, supra note 18, p. 10.

G uQand, supra note S8, pp. 255, 268.

125

some critics there is now a basic need for review an4 e'en re>+- ion ofthe system, and for others it is only a matter of "unfinished bmpiness'lefth the wdeof & heroiceffort to~t blah a Mtional glob~ sy tsystem

for the management of the ocean environment.1t is to these criticisms, and rebuttals, that the qznf«en'ence no~

SOME THOUGHTS ON THE STRADDLING STOCK PROBLEMIN THE PACIFIC OCEAN

Kunio YonezawaNippon Suisan Kaisha, Ltd.

Japan

More than a decade has passed since most of the living resources ofthe world's oceans were placed under the exclusive jurisdiction of thelespective coastal states. Yet there appears to be little sign of abate-ment in the fiery conflicts between the high seas and coastal fishinginterests in the use of straddling and highly migratory species. Thereasons for those unabated confrontations are obvious. On the onehand, there have been shifts in fishing activities by the distant waterfishing nations to the areas adjacent to the 200-mile zones of thecoastal states. On the other hand is the remarkable expansion of coastalstate fisheries even to the extent of over-capitalization. Reportedincidence of trespass by foreign fishing vessels naturally adds fuel tothe flames of animosity against foreign fishermen. The conAict usuallytakes place under the guise of resource conservation. Nevertheless, itscore is invariably over the benefits of fishing and, in no less measure,marketing. The case of high seas fishing in the Bering Sea is noexception.

The Pollack Fishery iIc The International Waters of the Bering Sea

Contested as an issue of conservation over a straddling stock, thedispute obviously encompasses a broader scope. First let me look at thebasic facts concerning the biology and the fishery, which are materialto understanding the nature and extent of the controversy.

Article 64 of Che LOS Convention definaa highly migratory apeciea merely aa Choaeliated in Annex I. Yet, the liat in the Annex ia groaaly marred with inconaiaCency andincompleteneae. Many other apeciea not found in Che Annex are juat aa, or more highly,migratory than thoee liated, while many liated hardly quahfy in light of their Inigrationextending liCtle beyond the 200-mile limit of one, or aC moat two, of Che coaatal etatea.For emunple, aaury, which ia liated in Annex I, ia juat aa highly milratoty aa NorthPacinc pollack, which ia not liated. Mexico alao claima Chat aome tuna atocka in ita wateraare atraddling atocka. The diatinction between the two categoriea ia only a matter ofrelativity acroea a continuum. Preciae diacinction may not be called for aince there areno aubatantial differences between the two in terma of righta, dutiea, and obligaCiona ofChe atatee aa provided in the Convention, And thia ia probably the major reaaon whyUNCLOS III gave no more than a curaory glance aC Che Annex.

127

1, The h6tori ~ japanese fishery prior to the 200-mile eraconcentrated on ethe continental shelf and its upper edge on the eastern

Se j ~~ annum itches in the 1970 ranged b tween 1.0Bering Sea. Japanese anand 1.6 million metric tons.

2. Current U.S. fishing generally follows the old Japanem fpatterns an d lands about 1.4 mi14on metric tons Fishing,.

call aH through the year. But, in all probability, the f ish~ ~be Cut ShOrt in Co ming yearS due tO a Continuing iQ flow Of n

m em acory » g "~+~L Md the pronounced tendency fthe fleet to scramble for fish early in the year.

'o ogham agree that walleye pollack exist in enormous qu~tthroughout the Bering Sea and its adjacent waters and th t, ocontinental shelf, pollack is more abundant in rnid- wate thbottom.

ajor spawn'ng areas are identified in the Bering Scontinental shelves off the U5. and the USSR and

g . e bulk of the basin is covered by intern t' ~waters.

5. Pollack in the international waters have much dif ferent biologicalcharacteristics from those on the continental shelves. For example,Table 1 shows the difference in the age-length relationship betweenpollack in the eastern Bering Sea and international waters.

This table clearly indicates the marked difference in the size of fishof the same age between the two regions in question and that thedifference grows linearly as age progresses. For the male, thedifference grows from 2.5 cm at age 8 to 15 cm at age 16, One will seethat age 16 fish in international waters are, on an average, no largerthan age 7 fish on the U5. continental shelf. Such a systematic trendand large discrepancy is very unlikely to occur if intermingling wereextensive, since interminghng between the two regions would maskand offset much of the acted growth differential when the averagesizes of fish from both groups are compared.

Their spawning seasons are also significantly set apart Aprilthrough August in the eastern 3ering Sea and April and May in thewestern Bering Sea as compared with February and Mare»n thecentral Bering Sea.

Tea ~w ~ fartory vaaaala are atated to join the cxiating fteet of fourth' opaar. Growth of ahora-hewed procegejgg capacity ia alao pheoomenQ, with three ~planta conont mto operation aeons.

putting all this together, one can see that intermingling of thepollack stocks could not be of such magnitude as advocated by, say,the proponents of unilateral extension of coastal state jurisdiction

Table 1AGE-LENGTH RELATIONSHIP OF WALLEYE POLLACK

Length in cm!

Eastern Bering Sea International waters

Male Female Male Female

Age

Source: K. Mito, "Stock Assessment of Walleye Pollack in the BeringSea." Presented at the Bering Sea Pollack Symposium, Khabarovsk,USSR, March, 1990.

beyond 200 miles under the pretext of protecting their domesticresource.

Now then, what will be the allowable catch for international waters'Mito undertook this task on the premise that the resource available forthe international fishery is independent of the eastern and westerncontinental shelf stocks after age three. This was also the assumptionemployed by the U.S. in estimating the eastern stock. Mito's estimationfor 1990 is 1.6 million mt., which is substantially higher than the 1988reported catch of 1.3 million mt.

Be that as it may, the international fishery in this situation isobviously challenged with a number of critical issues. The prevention

129

5 6 7 89

10ll

12

13

14

15

16

44.1

48.652.455.558.0

60.261.9

63.464.6

65.666.467.1

45.150.0

54.1

57.6

60.6

63.1

65.3

67.1

68.6

69.9

71.072.0

42.6

45.347.2

48.7

49.7

50.4

50.951.3

51.651.851.952.0

43.2

46.2

48.4

50.1

51.3

52.2

52.953.453.854.054.3

54.4

of uncontrolled expansion of this fishery is naturally the firstt duty of ail parties concerned-

Although Japan has already taken s'feps to f r~M the size of ifsf' hing flmt at the present level, it would be too naive to expect all theod er ~es to see things in the same light. Many countries, solneeven located far from the region, have demonstrated an interest inent ring this fishery or in expanding existing fisheries. The USSRalready has its fishing boats operating, and it is almost ce rtai n .fQ,S. boats wiB start fishing in international waters in the very nearfuture, if not this year

pur apprehension does not stop there. More serious is the aggravat-ing over-capitalization in the U.S, fishery off Alaska,' particularly itsresui~t exploitation Qf spawning stocks with such intensity thaf isunprecedented in the long history of this fishery. Although the totalcatch has remained almost unchanged since the early days of thisfishery, the fishing pattern has drastically changed in recent yean.What used to be a year-round operation in the days of internationalfishing, carefully monitored by international observers and with fimeand area closures to protect the wintering spawning stocks, is nowquickly being converted to a seasonal fishery of a six or seven-monthduration or even shorter, mainly targeting spawning stocks. If one isto assume that their catches are accurately measured and reported, theimpact of such concentrated fishing on spawning stocks should be farmore straining than the evenly-distributed fishing effort in the daysof foreign fishing.

One is alM reminded that the effect of over-fishing on the conti-nental shelf may very weH not be limited to U.S. waters. %aning ofthe spa~ning stocks on ihe continental shelf is likely to be counterbal-anced through natural design by fish replenished from the deep seabasin, which are under mt3ch less favorable living conditions, asdemonstrated by their retarded growth. In that event, it might verywell be the high seas fishing nations that are to suffer first and yetincur the bhme for the decline of the resource in the deep sea basin.

Thus, the cN by Japanese industry and government for the earlyestablishment of an effective international research and managementsystem, with research to cover the entire Bering Sea, is genuine, and

~Nvereon, D.L. g~~ n < s ~ ~ te ~ emesis, ced !hue deve4~nest of ~fua+~, Xebec aber >~0.Ab~~~thaC C ~ to tbe

5ahery during the OPER SCCA+

Co ~a~ «Iht to nine tnonthe ann~toQO ~~toa~a Ca ~~~t 6 ~

th ~ preeeure to undedng and cheatnn~ and inter-veeeel cornpeCitioa for ~~ ~aeter than hi ~ prediction.H cheat ~ be a matter OI fact. The ~ ~ ~

the urge is perhaps felt more keenly by Japan than any other party inthe region.

Now with this background, let me review some of the legalarguments on the straddling stock issue, particularly the viewsexpressed by Burke,' Miles and Burke,' Applebaum,' and Sumi.'

Miles and Burke contend that

If Article 116 of the 19g2 LOS treaty is to be effective, it may needfo be interpreted to authorize the coastal state to secure its superiorright by prescribing conservation measures with which high seasfishing states are obliged to obey. The right of the coastal state,made expressly superior to the high seas fishing state, wouldotherwise be empty and the high seas state would have no meaning-ful obligation different from its obligation to any other state.'

They further argue that the coastal state "could justify such actionby reference to Article 116 and the articles referenced therein,claiming these reflect customary international law."

They cite in support of this claim the provisions of the 1958Convention on Fishing and Conservation of the Living Resources ofthe High Seas and certain proposals advanced unsuccessfully duringthe UNCLOS III sessions. They further regard favorably the use ofeconomic sanctions and conclude that the unilateral action of the typethey envisage should be a better substitute for the extension of the200-mile jurisdiction, so long as "it is accompanied by the offer toaccept a third party binding dispute settlement over the scientific and

Burke, William T., Customary law as reflected in the LOS Convention; A slipperyformula," in J. Craven, J. Schneider, and C. Stimson, The ha~~icmsl Itsplicauonr ofReceded hfaritimr Junsdiction in the PaciJk, Honolulu: The Law of the Sea institute, 1989!,pp. 402-409.

Miles, Edward L. and Burke, William T., Pressures on the United NationsConvention on the Law of the Sea of XQSC Arising from New Fisheries Conflicts: TbeProblem of Straddling Stocks, in Thomas A. Clingan and Anatoiy L. Kolodkin, eds.,Moscow Symposium on the Law af the Sea, Honolulu: The Law of the Sea institute,1991! pp. 21T-258.

Applebaum, B., The Straddling Stock Problem: The Northwest Atlantic Situation,tnternational Law, and Options for Coastal State Action," in Alfred A. Soons, ed.,tmpleinentation of The Law of the Sea Convention Through lnternationai tnstitutions, Honolulu: The Law of the Sea tnstitute, 1990!, pp. $82-Sly.

K. Sumi, "The straddling stock problem.' ln press!.

Miles and Burke, p. ssx.

131

for the unilateral measures. Appleba�+follows a similar line of thought and cites Kelsen in sMrting thy

form of embargo on fisheries and other products' byone nation does apt necessarily require cond uct ex-deli ciao by the other

toa> I pereaally doubt very much if this reflects the view pfApplebauln s government. Sanction leverage is available to only a fe~privileged nations. It can certainly be challenged as a GATT violationaad invite retaliations.

Burke takes up the question of the l 982 LOS treaty versus custary international law from a somewhat different angle- He expr~serious doubt" about the assertion that 'the non-seabed portions of gLOS treaty aad customary international law are the same," noting fh tsotnetimes the reliance oa the UN treaty appears more from ggeneral political usefulness of the reliance than from the souadaess ofthe specific legal proposition.' He also refers to the simple contempt by the US Government! for legal staadards that do not fit theirperception of need.""

Obviously, the two papers are not intended so much as a solutioawithin the orthodoxy of the l982 LOS Convention or customaryinternational law. Rather they are a quest for a new formula "thatmight attract coastal state support and that might serve the long-tenninterest of the distaat water fishing as "the only alternative tounilateral or bilateral extension of coastal state jurisdiction." As such,debates on the legal foundations of their argumeat may very well beoff the mark. Quite aside from their messmeat on the reality of worldpolitics, however, I find it irnportaat to questioa the validity of theconclusion that the LOS treaty 'affords a plausible basis for coastalstate action to prescribe needed measures," I do not consider thatArticle 116 can be interpreted as giving the coastal state any additionalrights to those prescribed in Part V of the Convention or that suchinterpretation reflects the customary law as advocated by the authors.It is clear, as elaborated by Sumi, that the sense of the Conferencesince the Evensen Group sessions is that the rights of the coastal stateshould not be allowed to creep into the high seas beyond 200 miles-In support of their assertion, Miles aad Burke, as well as Apple-

baum, cite the two Latin American prop~ on the patrimonial seasubmitted at the UN Seabed Committee and the proposal of Canada

Baal Kelaen, Phk ~&g~~~IINf~, N Yah: Rinehartl969!, p. 26, quoted m Applebaum, p. S9S.

Burte, pp. i08-495.

l 32

and seven other countries at the final stage of the LOS Conference Ishall point out that none of these proposals did gp as far as to smk alegal basis that may allow the coastal state to prescript conservationtneasures for a st~addling stock applicable to high seas fishing.Furtherinore, the dismissaj of these prpposais by UNCLOS IIIef fectively ext'ngu'shes, as Sumi points out, another assertion by theauthprS that the proviSipnS Of Article 7 of the 1958 Geneva High SFishing Cpnventipn reflect custOmary internatiOnal law. In faCt, withthe exception of the U.S., none of the Pacific rim countries or otherparticipantS in this fishery chose tO ratify this COnventiOn. Onlythirty- five parties have ratified this Convention as pf tpday, gesidesthere are no known cases where Article 7 has been applied or acceptedin settling a fishing dispute among party states. It is further improperto try tO Compare, as in the argument of Applebaum, the preSent casein the Bering Sea or No rthwest Atlantic with past situations in watersadjacent to the territorial limit in the absence of the extendedexclusive fishing zone.

Unarguably, it has been a long time since the concept of Iaissezfaire per se has been recognized on the high seas, There is now auniversal recognition of an obligation on the part of fishing states toconserve resources. As a corollary to this obligation, it is imperativefor fishing states to seek cooperation with the coastal state, with pfwithout the LOS Convention, where such resources extend substantial-ly intp the waters under the jurisdiction of the coastal state as highlymigratory species or straddling stocks. Conversely, the rights of thecoastal state within its EEZ do not exist for its free play. The coastalstates are subject, under the 1982 LOS Convention, to conservationduties and the obligation to release surplus resources for the use of theinternational community. Conservation obligations of the coastal statenaturally require the coastal state to ensure that its domestic fishingand regulatory measures do not defeat conservation efforts on the highseas and the rightful use of the resource by fishing nations.

Article 56 of the 1982 LOS Convention clearly recognizes thisinterrelation and codifies that "the coastal state shall give due regardto the rights and duties of other states in exercising its rights andPerforming its duties in the EEZ.' Thus, it is clear that both the LOSConvention and the sense of the Conference, in addition to establishedinternational practice, negate the notion that the rights of the coastalstate are superior to or dominant over the rights of the high seasfishing state.

I have a few other points to raise on the approaches of the autFirst of 8l, their assertion on straddling stocks wo"ld inevitab y

133

m'~tory species. After all, the distinction betweeoextend to highly m4 ~ ~

the two categories ls onis only a matter of reiatlvlty acro' a conhnuum ifnot a distinction wiwithout a difference. Their assertion in th-secam to ~mp y a1 that the slightest presence of even a small fthe stock within the EEZ is enough to claim the supremcoastal state over a high seas fishing state.

M nd point is directed to the function of the prop~ th. !h4ysecon poin 'tnpulsory dispute settlement designed to resolve 'dif feren

over the scientific and non-discriminatory basis o f the measutaken by the coastal state in the event of failure to reach inter t o~Sgf80menment between the states concerned. The authors refer to An exVK of the I.OS Convention for this purpose It seems, therefore, thytheir proposa does not foresee an arbitration proceM given Qcompetence to review and evaluate what the coastal state,.has or wiB have in place for the same stock within its EEZ. If thdid, the political dynamics would hardly permit this to happen.

Thus, the panel as set up following the procedures as described iathe Annex will not be allowed to evaluate the proposed measures forthe high seas to determine if they are commensurate or equitable withthose in place within the KEZ. This inevitably renders the wholeprocess almost meaningless in terms of the equitable resolution ofdisputes on the conservation and joint use of the resource within andoutside the EEZ. Needless to say, the non-discrimination clause isobviously unsubstantiated, if an exception is made inside the EEZ.One also cannot dismiss the fact that the regulatory measures asproposed by the coastal state are, by design of its law, usuallyformulated with the consent of the fishermen concerned. A remainiagquestion is whether such measures remain in effect during the disputesettlement process.

ConcllsIoas

The purpose of this paper is naturally not intended overly to defendthe present confusion in some of the high seas fisheries, although theconfusion is in a large measure an aftermath of the establishment ofthe 200-mile regime. The review is rather intended to shed light onthe other side of the coin by showing that the nature and severity ofthe problems confronting the international and domestic f isheries are

not very dissimilar, at least in the case raised in this paper." Incommon are the Questions of over-capitalization, new entry, cost andbenefit sharing in introducing and implementing needed conservationmeasures among rival users, rather violent fluctuations in wildpopulatjons 10th in abundance and availability to rival users, almostirreconcilable clashes in philosophy ja the use of some of the marineresources, effective enforcement, etc. Fragmentation of authority canalso be counted as common.

Now, given all these facts of life, one may be tempted towardspessimism and irascibility with a jingoistic bend -- certainly forinternational fisheries. Clearly, however, one could not achieve on thehigh seas what one is incapable of achieving or one has failed toachieve in one's own domestic waters. It is also apparent that no usefuldialogue is possible, unless and until the parties are ready to agree ona basic rule or formula on conservation measures for a straddling orhighly migratory species. This further confirms the need for a regionalmechanism covering both international waters and the KEZ forresearch and data collection for the entire Bering Sea and other areaswhere there is conflict of interest between the high seas fishing stateand the coastal state with respect to the use of the same resource orinterrelated resources.

Where Chere i ~ no incentive for growth in the coaetal wetere, there ie natu.J y«!!

under-utilieation and often unwiHingnaee on the part of the coaetal etate to releaee theeurplue Co Che international community ae in the caee of the eeet coaeC of Canada.

> >+4, for «xample, ?7,000 Cone of red fish, roughly equivalent to their domeeticcatch of l5,000 Cone, ware left unueed out of Che Cotal aHowabla catch for the reepectiveepeclae, a continuing praccice einca Che aetabliehrnant of the 500-mila regime.

l35

COMMENTARY

Nikolai ShcherbinaInstitute for Economics and International Study

of Ocean DevelopmentsUSSR Academy of Sciences

Vladivostok, USSR

Thank you, Mr. Chairman. There was no mention of my name inthe previous program -- only the country -- and there is no mentionof the country and city in the latest one, I hope you have bothprograms and understand that I am from Vladivostok, the nearestforeign city represented here. This fact will determine partly what Iam going to say.

As to the report of Dr. Johnston, I like his classification of criteriaand will use it. The only thing I have to say is that "food production"criteria mean nothing to us without detailed information. In ourcountry we are used to counting our catch and production in millionsof tons, but we do not have good fish on the table. This is a manage-%eat issue, but since there are no international law of the sea aspects.I won't continue its discussion.

The other conclusion l cannot agree with is that "it is too early «predict the future growth and impact of joint ventures, joint develoP-ment arrangements, and regional and other forms of cooperation in theworld's fisheries.... As I know, statistics do not reflect the process ofcreating new forms of cooperation in the developing countries,includins the Soviet Union. Yes, including the Soviet Union, becausewe are a developing superpower in the economic sense. In our countrynow these new forms of cooperation are a part of the whole ongoingprops of decentralization of power and decision making. The IBorepower resides in local authorities, the more possibilities wil! exist fornew forms of mutually beneficial cooperation. The only limit heremust be the resultant exploding surplus of resources.

I think I should respond to the conformity problems touched on bythe speaker. I understand that this play with the words norms,principhs, criteria, guidelines has been borne out by real life. But Iwould Prefer the unorthodox suggestion that a law is a law, treaty orcustomary, and that the only compromise is that a law or norm in Ne:process of formation can be called a guideline or criterion. As was saidby our coHeague from England, Winnie the Pooh, there are only twovariants: there is honey, or there is not, It is a comparison with the haw'

of norms. The same opinion can be quoted from Lakon, that the lawis law always. As to the implementation practice I agree that it can beand should be underestimated. Maybe we need UNCLOS IV as animplementation conference, but this is not my question,

Yonezawa-san made an interesting report, taking as an example theBering Sea po/lack fishery. I shall give another example, which Iconsider a part of the whole process of the 1982 Convention'simplementation at the national, bilateral, and regional levels. Maybeyou know this example from the newspapers already. At the end ofMay this year twelve North Korean fishing boats, illegally catchingsalmon beyond the 200 mile limits, were arrested by our patrol boatsand brought to the port of Nakhodka. The estimated damage is morethan U.S.$25 million. After one month of investigation, the local courtdecided that, according to the bilateral regulations, only Koreanauthorities may investigate such a case. The main reason for such adecision was that the court received a letter from the deputy foreignminister concluding that such regulations exist and must be used. Butthey have not existed since a new intergovernmental agreement wassigned in 1987, The regional court counseled the new local court inNakhodka to impose a fine to take compensation for the damage aadto confiscate the boats. This decision was made a few days ago. But afew days earlier, the boats were released because the Korean sideremitted U.S.$3 million to our bank and allowed Soviet inspectors totake part in the investigation on its territory. The interesting detail isthat this boat under the North Korean flag had many Japanesetechnicians on board. The boats have a Japanese port of registry, andthe Korean company wants to return them to the Japanese owners assoon as possible. So this bilateral case may become multilateral. Thisexample shows the strong linkage between national legislation,bilateral agreements, regional efforts to discuss and solve theseproblems, and Article 66 of 1982 UNCLOS Convention. The weakestlink in this chain is at the regional level. We really need the samemultilateral convention prohibiting the salmon fishery beyond the200-mile limit as they have in the North Atlantic. The creation of theregional research organization can also be very useful to answer allscientific questions connected with decision making.

If my remarks have been oriented toward the USSR, it is becauseEnglish-speaking scholars complain of the absence of informationabout our practice. I hope it will be useful.

137

COMMENTARY

Daniel D. HuppertInstitute for Marine StudiesUniversity of Washington

My task is to reflect upon the two excellent papers by DouglJohnston and Kunio Yonezawa. I bring to this task an American vie+bLsed upon fifteen years experience with the U.S. National MarineFisheries Service and many years service on the ScientificStatistical Committees of the Pacific and North Pacific FisheryManagement Councils.

The United States' jurisdiction over fisheries within 2QQ n m ~based upon the Fishery Conservation and Management Act of l976later renamed the MagnMson Act. Fishery management in the /pe ufo rmulated by eight regional fishery management councils, actingunder the guidelines of the Magnuson Act and subject to the approvalof the U.S. Department of Commerce. The Act requires the Depart-ment of Commerce to enact fishery management plans for allimportant fisheries within the 3-to-200-mile zone. The plans mustdefine the optimum yield OY! for each fish stock and allocate theoptimum yield among domestic, joint venture, and foreign fisheries.In making the allocations, highest priority is given to the fuHydomestic fleet iz., vessels delivering to domestic processing plants!,second priority to joint venture fishing i.e,, domestic vessels deliver-ing to foreign processing ships!, and last priority to fully foreignfishing.

U.S. marine fish harvests expanded as foreign fleets were phased outduring the years following the Magnuson Act. Between l 977 and l 955,foreign catch in the U.S. zone decrease< from l.7 million metric tonsto 6l.5 thousand metric tons, while U5. catch increased from 236 to3.26 million metric tons.' The most dramatic growth was in thedomestic groundfish fleet in the North pacific, where foreign harvestsof over l.5 million metric tons were supplanted b U.S- fish«~es.q y impressive was the increased domestic salmon catch o f

Alaska whichhich grew from l39,000 metric tons in l977 to 3i»000

'U.S. Department of C1978; and U.S. De

t of Commerce l979, Fisheries o j Ihe United Sties,partment of .ommerce, l989. Fisheries Of <United States, 1988. Washington, D.C.

l38

metric tons in 1989. The exclusion of Asian drift net fishing from the200-mile zone may have helped revive the salmon fishery. Since a keypbjective of' the Magnuson Act was to encourage the development andexpansion of the U.S. fisheries, these count as successes for extendedjurisdiction.

g ide, groundfish fisheries in New England h bless successfully managed. During the first feregime, groundfish catches

pe -nt from 242,00p met�«o»,-n ]977 t 296 ggubse~uent y

important specicaused annual groundfish harvest to fall 35 percent below the 1977level. Also, the U.S. high seas tuna fleet migrated from its home basein sputhern California, leaving only about thirty tuna purse seiners inthe U.S. fleet, and leaving no significant tuna canning capacity in thecpnfinental U.S. Several causal factors in the tuna fishery declineinclude the development of tuna fishing grounds in the westerntropical Pacific Ocean, development of tuna canning capacity innatipns with lower production costs e.g., Thailand!, U.S. regulationsassociated with laws protecting marine mammals, and increasinglyeffective claims by coastal states to jurisdiction over tuna fishing.Extended jurisdiction is a continuing cause of decline in the U.S.-based tuna fishery.

Currently, the regional fishery management councils are encounter-ing difficulties of several types. These problems can be categorized asallocation conflicts, fish stock conservation problems, economicproblems, and conflicts with marine mammal and endangered specieslegislation. All of the councils seem to be afflicted with extensiveconflicts among various fishing groups. Competing segments pf thecommercial industry grasp for larger allocations of annual allowable

'State of Alaska, Department of Fish and Game, 1986. Alaska 1985CNch and Production. Commercial Fisheries Statistics StatisticalLeaflet No. 38. Juneau, Alaska; and H. J. Geiger and H. Savikko,1990, Preliminary Forecasts and Projections for l990 Alaska SalmonFisheries. Regional Information Report No. 5190-03. Juneau, Alaska.

'Groundfish tonnage is computed from various issues of U.S. Depart-ment of Coinmerce, Fisheries o j the United States. Species included inthe catch totals include cod, haddock, yellowtail flounder, red andwhite hake, Atlantic ocean perch, and pollack.

139

catches, an t eh, d the recreational fishery interests seek to reduhl h ts The fishery management councils seem ill-pre

deal with these allocation battles in an objective and r igorous f hTh h4agnuson Act requires allocation decisions to beThesu4~68 support'ng data aad analysis. Couacil decfluently made in the absence of such information or are ~

t ~ app ntly unconnected to the information.poasi

il management recommeadations for coasi tencyAct s national standards ' fn recent years

t * ~~ h+ pow« to review aad reject ailocatioa that beinterests represented by council

gments of the fishery aow appeal management dec' 'othe councd 'tself, but also to both the exec t

legislative branches of the federal government.This means that councils are always in jeopardy of being overruled

by higher authority. There is growing dissatisfaction with this regionalcouncil system, which may lead to legislative or executive branchchanges. But these are structural aad procedural problems with tbspU5. system of regulatioa, not generic problems with extended fisheryjurisdiction.

Fish conservation has generally been a strong point of U.S, fisherymaaagement under the Magnusoa Act. We have had particulardifficulties, however, ~here multiple fish stocks are being exploitedby commercial gear aad ~here fish stocks stray into the ~aters ofadjacent nations or into the high seas. Pacific ocean perch, forexample, which are caught by bottom aad mid-water trawlers incombination with other rockfish aad fiatfish species, was substaat48yover-fished before the Magausoa Act. The fisheries couacils have 50tbeen able to assure the rebuilding of the stock, because the councilneeds to optimize the production of the other grouadfish species- ~Bering Sea pollack fishery illustrates the problem of straddling stocksawhile the U5. fishery in the U5. KEZ has maintained annual harvestsat steady levels, the harvests f fom the adjacent high seas zone, whichU~ managers call the "donut hole,' have increased rapidly over tiNlast five years. To the extent that polack ia the donut hole are mixedwith pollack in the U5. zone, regulatipa of the U.S. fishery ca»otassure the long-term conservation of the fish stock.Several observers, iacludiag myself, have frequently criticized U>.

fishery managers for paying so little atteatioa to the economics Ofresource management. A major failing of U.S. fisheries managementis its fixation on regulating quantity of harvests or fishing mortal" >awhile ignoring the fact that the economic returns to fishing a e

reduced by excessive investment in fishing fleet capacity. Hence,oyer capitalization of fishing fleets is rampant in the U.S. This is mostobvious in the fastest-growing fisheries, such as the North Pacifictrawl fleet, but it is a long-standing condition in the older fisheries,such as the Pacific halibut and salmon fisheries. Recent developmentssuggest that U.S. fisheries managers may revitalize their efforts toaddress this problem. The mid-Atlantic fisheries management councilhas implemented an individual quota type of limited access system inthe surf clam fishery. The Pacific and North pacific fishery manage-ment cpuncils are in the process of developing limited access systemsfor their respective groundfish fisheries. While this presents anopportunity to address economic efficiency criteria for fisheries, thesediscussions have gone on for a long time already, and they may npt beconcluded satisfactorily in the near future.

Endangered species and marine mammal regulations affect salmonfisheries on the west coast, several fisheries in the North Pacific, andthe shrimp trawl fishery in the Gulf of Mexico. The management ofpacific salmon off the states of Washington, Oregon, and California isa case in point. Because the fish spawn in fresh waters that are subjecttp both obstruction and pollution, the managers of the ocean fisherieshave been unable to maintain high levels pf fish abundance. Dwind-ling runs of upper Columbia River and upper Sacramento River stocksmay be declared "endangered' under the provisions of the U.S.Endangered Species Act ESA!. Because the ESA requires stringentmeasures to protect both the endangered animals and their habitat, thiswill vastly complicate the management of salmon stocks in the oceanfisheries, where stocks from several rivers and tributaries are mixed.

In the EEZ off Alaska, the northern sea lion populations havedeclined dramatically in the past decade, leading to their listing as a"threatened" species under the ESA. While threatened" species statuscalls for less drastic protective measures than "endangered" speciesstatus, the groundfish, salmon, and other fisheries in the Gulf ofAlaska, Aleutian Islands, and Bering Sea may be increasingly restrict-ed by the need to protect northern sea lions. In the Gulf of Mexico,the incidental capture of endangered sea turtles continues to plaguethe shrimp fishery. Regulations requiring use of a "turtle excluderdevice" on shrimp trawl gear has led to widespread protest and conflictbetween fishermen and managers. All of these mammal and endan-gered species problems would undoubtedly have arisen in some formeven without the extension of fisheries jurisdiction to 200 miles. Butthe creation of federal fishery management authority in the EEZ hasprovided a convenient forum, which focuses and concentrates thesemanagement problems.

In his revie~ of coastal state f ishery management, Douglas Johnsta>criticizes the coastal states for failing to "develop a working fortnuldesigned to achieve socioeconomic optimizatioa" and for notmaking "the hard political decisions necessary to deal with tl�domestic problem of allocation.' The first criticism stems from tl,econcept of optimum yield OY! as defined in both the LOS Coaven.fion and the Magnuson Act; it broadens fishery management obj~.tives beyond maximum sustainable yield MSY! to include econom,cecological, and social factors. It is my view that OY is not so importa tas an objective requiring a formula for optimization, but rather it Ia means of introducing a richer set of values and issues in the processof setting annual total allowable catches. From an economic viewpointthe optimum yieM would maximize net economic returns harvestvalue miaus harvesting costs!. From an ecological viewpoint, the pyconcept provides an umbrella under which considerations of spec+interactions and long-term stability caa be raised. It also provides srationale for considering such social factors as regional employmentopportunities, cultural dependency oa fishing, and other factors. Butthis is theory. The question is: What has the new system of fisherymanagement actually accomplished with the OY concept?

In reviewing various U5. management decisions, it is clear that Dr,Johnston is correct that no formula has been established to implementit. The councils do not choose OYs based upon a technical balance ofbenefits and costs, ecological effects of harvest, and relevant socialconsideratioas. For example, the west coast salmon fishery manage-meat plan does not even estimate M5Y, let alone the economic,ecological, and social factors that might modify the MSY objective,Instead, it focuses on annual escapement objectives and sets harvestlimits ia terms of numbers of fish. This permits the council to avoidrevealing the fact that the current geographical and seasonal patternof fishing cannot come close to a maximum annual physical oreconomic yield. Based oa this and other cases, an assessment of US.coastal fisherieseries management is a failure at multi-objective planning.I do not believe, however, that this is a reasonable conclusion.

istic to expect optimization" when there are conflictingviewsofmana emtion of benefits from f'g eat objectives and conflicts concerning the distr'bua decision makin r

m fishing. Multiple conAicting objectives lead tostatus quo and accomm

' g process that emphasizes marginal changes fro<interests. The process of 'f 'mmodation for mutual gaia among coalitions ofsn such situatioas will s i ip ss of sifting through alternative courses of ac"

pecifically avoid blatant discussion of ob ~>ves, sincesuchdiscussio '

concept legitimizes the consiussion invites sterile argumentation. Thus the

coasiderabon of many important objecti~~

142

but the failure of coastal states to develop working formulas is not anindicator of failure. The question is one of procedure. The procedureneed not, and in most situations probably should not, proceed bydevelopment of an idealized formula to define the optimum yie

Overall, I rate the management of fisheries in the U.S. EEZ as asuccessful development. While there are many problems yet tosatisfactorily addressed, the management regime has placed significantrestraints on fishing in order to conserve fish stocks, and the managersare beginning to deal with the over-capitalization problem.

Regarding the problems of straddling stocks, I must agree with Mr.Yonezawa that there is substantial conoict over allocation of harvestsand/or economic benefits The allocation issues are particularlypoignant in the Bering Sea pollack fishery. So long as various stocksstraddle the different zones, the annual yield available in each zonedepends to some extent on the harvest in the neighboring zone. Torationalize the fishery, the several participants need to agree on aformula for allocating the available annual yields. A simultaneousagreement from ail parties is essential, yet each party can gain ashort-term tactical advantage by not agreeing to a conservationregime. In the longer term, however, with no coordination of harvestlevels among zones, the overall harvest may exceed the biologicalcapacity of the stock, and all the competing fisheries will experiencea decline.

The identification of pollack stocks seems to be a focal point in thecurrent Bering Sea controversy. On the one hand, we have theevidence presented by Mr. Yonezawa. It suggests that there aredifferences perhaps genetic separation or separation in spawning andfeeding ranges! between pollack caught in the high seas "donut hole"and in the two EEZs of the Bering Sea. Oa the other hand, we have amuch more complex picture of stocks suggested by the scientists atjoint U.S.-Soviet consultations on the Bering Sea stocks. The scientificevidence for any specific stock structure is not conclusive. Tounderstand it better will require significant new research, research onfish physiology, genetics, hydrology, and transport and migration offish at all life stages. The pollack population may not consist of justtwo or three discrete stocks existing in total isolation. There may bemany sub-stocks with some degree of separation. That such stockswould happen to separate on the imaginary lines associated with theE~Zs is highly unlikely. Hence, it is almost cerumen that the manage-ment of pollack across the Bering Sea needs to be unified, or at leastcoordinated.

The legal mechanisms available for developing such a managementregime have been reviewed by Miles and Burke. The underlying

143

principles of international law depicted by Miles and Burke then havebeen criticized by Mr. Yonezawa. I do aot intend to enter that debate.But I do want to note that the continuation of the debate, absent aaycontrol over fishing, has potentially significant consequences for theU4. pollack fishery as well as for the high seas and Soviet fisheries.If abundance of pollack in the U.S. zone declines markedly, the highseas fishery will be a popular and politically compelling culprit- ThiswiH lead to strong pressure to do something to contain the damagecaused by the uncontrolled high seas fishery. While Mr. YonezawIL iscorrect to blame the U.S. for permitting, or even encouraging, therapid build-up of domestic groundfish harvesting capacity, the U~has maintained harvest quotas within the historic average levels ofharvest and within estimated biological capacity. Nations that haverecently developed the high seas fishery are the new players whothreaten over-fishing and instability in the fishery.

In conclusion, I congratulate both Dr. Douglas Johnston and Mr.Kuaio Yonezawa for providing us with useful and incisive viewsconcerning the sucks of fisheries management under extendedjurisdiction and the prospects for managing straddling stocks.Regarding the role of optimum yield in coastal state management, Khave aoted the importance of decision-making processes thatdownplay the focus oa objectives such as QY. And regarding themanagement of straddling stocks, I have emphasized the importanceof international coordination in order to assure fish stock conservation-To the extent that my views differ from those of the authors, theYShould be taken as complementary to, not criticisms of, the authors'papers.

144

COMMENTARY

Ambassador Hugo Llanos Mansi!laSecretary General

Comision Permanente del Pacifico Sur

The South Pacific Permanent Commission CPPSj was born inSantiago, Chile, in 1952 as the regional maritime organization todefend the thesis of the 200-mile zone, which was created by theChilean government in 1949. The CPPS is made up of four countries:Colombia, Chile, Peru, and Ecuador. Panama participates also in someCFPS programs, Chile and Peru, as you know, are two of the mainfishing nations -- thanks, I wouM say, to their exclusive economiczones. Our organization is closely linked to the 200-mile zone, whichafter many years has been accepted by the international community inthe United Nations Convention on the Law of the Sea as an exc1usiveeconomic zone. Therefore, we succeeded in the arduous journey thatlasted thirty years from 1952 until 1982. For this reason, we stronglysupport the right of the coastal state to explore, exploit, conserve, andmanage the natural resources of its exclusive economic zone,

For the CPPS, a problem of special interest and preoccupation is thefishing conducted by foreign Aeets in the zones immediately adjacentto the exclusive economic zones of the party states of our organization.Chile's fleet, for example, operates with seventy-five fisheries in frontof its exclusive economic zone; fishing Aeets from the Soviet Union,Spain, Poland, and Cuba, among others, are fishing off the Chileancoast.

The Minister of Foreign Affairs of Chile, observing that the newlaw of the sea recognizes the coastal state's interest in the conservationand optimal utilization of marine resources beyond its 200-mile zone,when those resources are made up of the same stocks that are foundwithin the zone -- imparted those principles to the CPPS, urging theirincorporation in future decision-making.

On the basis of this ministerial mandate, the general secretary ofour organization shall prepare the base for a system for the conserva-tion, protection, and optimal utilization of the resource. The regulatedspecies shall be the jack mackerel, without necessarily includingothers, such as the horse mackerel, dolphin, and so forth. The area tobe regulated shall comprise the section within latitudes 2 degrees northand 52 degrees south, with its western limit in the longitude of 0.96degrees west. A scientific committee shall be established to determinethe scientific bases for management and to undertake scientific

145

rich about the biological abundance, biometry, ecology, andst,t' tin, etc., aad tp determine the incident l harvest leveb forvarious species The volume of abundance p f eac h reg u lated speciess~ be established ia the area pf application of this norm, and thglobal maximal quota could be stated for the allowed catch per year ifth species requires a coaservation measure.

Once the fishing capacity of each coastal state ia each exc4siygecpnomic zone is known, all the states shall fish the surplus in theadjacent area. All that I have propped is in the process pf be~considered by the competeat organs pf our international organizationbecause there are legal, political, and scientific prpblems iayolv+The major part of this effort is done by the CPPS, which is estabighgoa the basis of Article 63, paragraph 2 of the Convention oa the ~>of the Sea. The CPPS regards itself as the appropriate regioallorganization of the Southeast Pacific, and the coastal states of theSoutheast Pacific accordingly play a principal role in the conservationof this species because they will endeavor, with the other states thstfish the stocks ia the area adjacent to their respective exclusiveeconomic zones aad to take the necessary measures for their conserva-tion ia that area. The conservation measures taken in the adjacent aresshould harmonize with the ones adopted by the coastal states in theirexclusive economic zones.

To succeed in this initiative, it is necessary that all the states agreeto the norms regarding transit, services, joiat export, and placementof product in the international market. Ia Article l l6 of the Coaven-tion it is established that natioaals pf all states have the right to fisbia the high seas, but they are subject to the rights aad duties as wellas the interests of the coastal state provided for, i nIer alia, ia Article63, paragraph 2. The rights of the coastal state, when limiting fishingfreedoms on the high seas, could be interpreted to include theextension of conservation measures adopted in its exclusive economiczone to the adjacent zone if associated stocks are found ia both zones.I doa't agree with Mr. Yoaezawa's interpretation of this article. On thecont rary, in practice the coaservatipa measure that the coastal statetakes in its exclusive economic zone could lack effectiveness if thestock remains exempt from these measures beyond the 200 miles.

In relation to tuto tuna resources the CPP$, haviag in mind coasta saterights over this hi hll989 of a convention

highly migratory species, sponsored the sign"8 ~atioa OAPO the cr

tion to estabhsh the Eastern Pacific Tuna 0 gan.l983. OAPO offered acreation of wluch had been under discussioa s'

ratioaal tuna maaa emered a scheme for iateraatipaai cooperatioa ongement, wgch at the same time preserve

sovereign rights of our states. Moreover, two weeks ago [July 19903 ina meeting that was held in Papua New Guinea, we created a newinternational organization, the Trans Pacific Fisheries Consu]tativeCommittee TPFCC!, to foster cooperation in the area of fisheriesbetween Pacific and Latin American countries in the Pacific islandregion. In the interests of promoting Pacific tri-regional cooperation,permanent observer status shall be granted to the ASKAN countries.CPPS will house the TPFCC in Chile for the next four years. Follow-ing several suggestions, it was agreed that we commence planning aten-day workshop to address matters relating to conservation of tuna.It was agreed that the following issues should be included in theagenda: control and regulation, surveillance and enforcement,monetary and control mechanisms, access conditions, and legalmechanisms.

DISCUSSION

~~> Nihg I read Yonezawa-san's paper with very great interestand I was not surprised by the arguments I found therein. They we<in fact similar to a number of complaints Bill Burke and I receivedfrom European friends who claimed the article published on tb'question was rather biased. So I want to deal with the large policyissues that underlie that paper, but first let me make two specifyCOmmentS abOut the queStiOn Of pOllaCk StOCk StrUCture in the CentralBering SeL The data submitted by Dr. Mito are interesting augcertainly would tend to support the argument that there is a significaafdifference between the stocks in the Central Bering Sea and stoclwithin the EEZ. But that's only if you look at that one distributionpresented by Yonezawa-san. I remember the earlier japanese argumentthat there were in fact six sub-populations of pollack in the triplSea, and that argument has not withstood scrutiny as more and moredata have become available. If one looks at the data that werepresented in the Sitka meeting in Alaska and the data that werepresented a year ago in Leningrad at the joint U.S.-USSR coasu}ta-tions, the question of pollack stock structure in the Central Bering 5eaturns out to be far more complicated than we could ever haveimagined. So I agree unreservedly with one statement in Yonezawa-san's paper that 'this further confirms the need for a regionmechanism covering both the international area and the EEZs forresearch and data collection for the entire Bering Sea, and wecertainly hope that will come to pass relatively soon.

One could engage in a legal argument of whether the position weclaim with respect to Article l l6 is substantiated or not. I'm not goinRto do this, I want to focus the attention of Japan and the other distaat-water countries on the following policy dilemma: If one looks at thehiStOry of the law Of the Sea in the twentieth Century, every maj«change in regime has arisen out of substantial instability with respectto the fisheriesthe hi h seas

isheries sub-regime. We are at that point again with respect tog seas on the straddling stock question. What is at stake herc

goes far beyond fisheries, and we are talking about stability of theha e only recently achieved with great difficulty over a

period of more thanWhat state practice

than two decades. That said, what are the issues? l!p tice do we want to create? �! How dp we handle 5<

enforcement roblemaction relative to the N

p blem? I have considerable difficulty with the Sovietstands. We want to creae North Korean flag boats on the»gh ~~

cate a State praCtiCe that wOUld PrOd«e a

solution to the problem we now face. We have seen before thatinternational solutions in the form of commissions where all are equaldo npt produce effective conservation regulations because authority isfragmented. If that is what we will do here, it will guarantee coastalstate extension beyond 200 miles in fairly short order. That is why BillBurke and I argue that the solutions must tilt towards the interests ofthe coastal states if we are talking about straddling stocks. But it is nptso easy for coastal states to establish that claim. It must be subject tpimpartial judgment of the scientific evidence presented. Coastal stateexercise of its jurisdiction is not unfettered � it must be controlledby fhe dispute settlement mechanism so that the burden of proof inthe position we argue is on the coastal state to be able to claim thesignificant advantages we have suggested. If there are alternative waysof splving the policy problems I pose that are more effective, then weremain ready to listen to them, but just to insist that the regime of thehigh seas does not permit coastal states to take action to secure whatthey regard to be their significant conservation concerns, not only willnot splve the problem but will be counterproductive. And I wpuldsuggest then that my Japanese friends have recourse to the words ofthe Bishop of Tyndale in the thirteenth century, that it is better tohave somewhat than to be done out of altogether.

Xunio Yorrezawa Dr. Miles raised a few points on my presentation.Basically I found nothing in his remarks very much different from myperspectives. I am naturally aware that instability in the fisheriesregime has very often been the motive for the radical changes in theregime. I have to point out in this case, however, that one of the majorreasons for instability is the rapid expansion of the U.S. fishery in analmost uncontrolled way.

Dr. Miles assumes the stock in the international waters to be astraddling stock, referring to some of the earlier works of Japanesescientists. My point is, however, not so much for biological arguments.The point I see most significant is that there are marked biologicaldifferences at this moment between the catches of the current U.S.fishery and the international fishery, irrespective of whether theremay be five or six sub-populations in the area. As the U.S. expands itsovercapitalized fishery and exhausts the resource it is now utilizing,however, it wiH extend its range farther and farther westward into theinternational waters. Then we shall all have more serious problems andinstability in the joint use of the resource. Unless there is clearrecognition on the U.S. side that the U.S, is creating much of theproblem and instability, there would be no basis for both sides to come

l49

to a rational agreement. As Dr. Mochtar pointed out earlier, what iIcalled for is common sense, certainly not unilateral extension ofcoastal state jurisdiction. In my presentation I stated the need forconstraint on the part of the international community.

Harold Sparck I am from Alaska, Yonezawa-san, in your paper yovsuggest that the conflict over straddling stocks is currently takingplace under the guise of resource conservation. I would understandfrom your comment that the coastal states are inventing the problem.I wouM suggest that, in the Bering Sea, a conservation ethic is in placein both KEZ3 of the coastal states. The question is: Is there a right andduty by the distant water fishing states to practice conservation f0~these discrete stocks, and what standards would you suggest bcapplied'

~o Foeesawc The use of the word "guise" may not always beappropriate- With respect to norms and standards, I can only turn tointernational practices and to norms and standards as employed in theUNCI-OS. You will naturally find that they are not very muchdifferent from the concepts incorporated in domestic laws andN.ulations of many of the coastal states, including Japan and the U8-Yet, the problems confronting both are not at all dissimilar -- how tocontrol new entry, how to divide costs and benefits among rival userI,how to define optimum of maximum harvest in dealing with multi-species fisheries, how to ensure justice and fairness in the system foraB participants. These are some of the common problems. And if yoeteethe that you are not successfully sorting out these issues on yourdomestic front, you will have every reason to be just as patient andreasonable in your effort in solving international disputes. There areserious concerns on our side as a further element of instability in theinternational fishery -- expansion of the U.S. and USSR fishery intointernational waters, despite their claim of overfishing there. TheUSSR has already started fishing and the U.S. will be joining soon- Itis high time that «ll the concerned states, coastal and high seas fishinS.get together and open their dialogue on how to stabilize the currentsituation.

Bateau hpplebmse I read Mr, Yonezawa's paper with great interest.I have. for many years, been an admirer of Mr. Yonezawa's contribu-tions to the development of international fisheries management,

My main comments will relate to the points made in Mr. Yone-zawa's paper concerning the coastal state's rights compared to distant

150

water states' rights with regard to straddling stocks. But first I want torespond to the remarks made towards the end of Mr. Yonezawa'spaper, to the effect that Canada is not honoring its obligations underthe law of the sea to distribute surpluses to other countries, becauseCanadian fishermen have not been catching the full quotas reservedfor them by the Canadian government.

There are many valid reasons why quotas are not taken by the fieetsto which these quotas are assigned, including weather problems, vesselbreakdowns, and other difficult operating conditions. The fact that acoastal state does not always take the quotas it reserves for itselfcannot be taken to indicate that the state is not honoring its legalobligation to distribute surpluses.

Canada has been honoring its international obligations to distributesurpluses by consistently, annually, making quotas available to othercountries, including Japan. In many instances the quotas were nottaken. Canada has annually asked each country that receives quotas toreturn, for distribution, the quotas it will not take during the year.Japan has been one of the countries that has consistently avoidedreturning those surpluses so that the coastal state could make themavailable to other countries. In one study we reached the interestingconclusion that there were no significant differences between thepercentages of uncaught quotas that applied to stocks in the Canadianzone and those that applied to the NAFO quotas that had been givento other countries. There were significant shortfalls in both cases, andthere were reasons for those shortfalls.

One of Mr, Yonezawa's main themes is that the rights of states tofish on the high seas and to contribute to management decisions onstraddling stocks cannot be overwhelmed by the rights of coastalstates. I personally agree with him, and I doubt that anyone couldseriously disagree. But my question for Mr. Yonezawa relates to oneparticular statement in his paper where he said that "thus it is clearthat both the LOS Convention and the sense of the Conference inaddition to the established international practice negates the notionthat the rights of the coastal state are superior to or dominant over therights of the high seas fishing state." I take that comment to referspecifically to straddling stocks. Would he not agree that coastal stateshave a certain primacy in the management of straddling stocks? In hisresponse he may want to comment on the relevance of clauses on thispoint in two international agreements that Japan has signed. One is theNAFO Convention and the other is the Canada-Japan bilateralagreement. These recognize a special position for the coastal state andin particular require that measures adopted outside the zone beconsistent with rnanagernent measures adopted inside the zone.

15l

~z Y~~~ I happened to be Ne ncaa ot the aelegation when ~discussed the b f lateral agreement with Canada back in l 977 g,>Applebaum was sitting across from me. But I have tp say vis-a-vis tbgAFO Convention that this is a product of circumstance pr pf q~pro quo, We refuse to give any more significance to this agreementfhan as an arrangement to effect quid pro quo -- that is, f ish jng,'ns,tiethe Canadian zone and some limitation outside the zone. Legal expert,are quite dexterous in producing arguments that look impossible f~those outside the legal profession, but the clauses in the agreementwere the product of circumtaaces.

On the second question of consistency on conservation me.~inside and outside the zone, I have no argument against your aAs I mentioned in my PaPer, with or without the LPS Convent,on

Peration inside and outside is a must if you want to establ~effective and equitable conservation measures.

Guillermo Gomca I am with Temple, Barker, and Sloan, a consultfirm in San Diego, but I will be wearing a Mexican hat when I ask gNquestion since that is the country I was born in. I was very impressetiby the presentation of the paper by the Japanese speaker, but l ~surprised to hear no mention as to the treatment of new entrants intofisheries on the high seas. This is the case of Mexico in the North~estAtlantic and some other countries like the U.S., which have becomeplayers in the high seas fisheries. Would any of the speakers care tocomment on this issue?

Eamio YNtenrea I think this is a very difficult question to solvepractically. You also have the prpblem in your domestic waters ofwhether you can have a limited entry system under the CpnstitutioLAre you not restricting the basic rights of the individual to go fishin8when you do not allow him to use the fishery resources within theeconomic zone which are common property, at least for aationals Ofthat nation? In intematiog+l waters you have more problemparticularly when the resource is being utilized to the full. We have togive something to newcomers but at a cost to fishermen with a lonRtradition fishishermen who have collaborated and sacrificed for >conservation of the resources. The question has to be addressed onaregion by region basis.

David 8mAt Imam I am from the State of Alaska. My question isgreat interest and I havYonezawa-san as well; it seems to be your day. I read your paper w~+

I have sympathy for some of the points you abide

I$2

regarding our own domestic fishery, its unprecedented growth, andthe implications that growth might have for the Bering Sea as a wholein the future. Nonetheless, recogaizjag that the Bering Sea has somepeculiar geographic and biological characteristics -- 90 percent of itis inside either the zone of the USSR or the U.S., roughly ]0 percentis in the central Bering Sea donut hole, and the predominance of thepollack stocks likewise are on the shelves or inside the zones -- andtaking into account the rights and duties that you have laid out bothfor coastal states and distant water fishing nations, what are theresponsibilities of the distant water fishing nations to two coastal stateswhich have harmonized the management regime between their twozones? In other words, if 90 percent of the Bering Sea had a relativelyconsistent and harmonized management system and if the two coastalstates then sought cooperation through one means or another, perhapsa regional organization, what would be the responsibilities of thedistant water fleets there? If there were a failure to reach suchcooperation, what would be the next step for the distant-water nationsand what recourse would be available to the coastal states?

Xwgio Yonezawcz It does look like this is my day. But, of course, I amnot in a position to represent the government of Japan; I am partici-pating as an individual. There are obviously a number of things wehave to consider. First, the users have a collective responsibility forthe conservation of a particular stock, whether it is a highly migratoryor a straddling stock. Second, the stocks that the U.S. is currentlyfishing are very likely to be different from the fish the internationalfisheries are using. But as you expand your fisheries, this boundarybecomes obscure. This is the time for us to develop a joint conserva-tion scheme. You have to mind your own business first, and we havealso to mind our business to make sure that international fisheries donot expand beyond the present level. And if scientists say that thereshould be reduction in fisheries in the international waters or incoastal waters, we all will have to comply. Other than that, I do not seeany practical solution to this question. Whether you have a right orwhether some other guys have a right would interest the lawyers butmight not lead to the practical solution.

Grace Fong. Just a few comments, mostly pertaining to ProfessorJohnston's paper. I am currently Legal Counsel with the South PacificForum Fisheries Agency FFA!, but I, like the others, speak in mypersonal capacity as a Fiji national. I would like to make a special pleathat we as international la~yers do not contribute to the confusion that

153

t abound at the moment from the coterrn<no~ �~talcum utlbzation,' "management," and 'conser�at o

talks bo t conservabon and oppmum ut>lizat,once to mix the three up ~ f

were synonymous.Spec fically on Professor Johnston s paper

Sere have een psychic gains from the Law of the 5 a Cop~vlions p ~ning to the EEZ. It does not always Qlo

ho e er, to perform on an equal basisthe asymmetries are considerable. To overcome thh ~�

gst ourselves and this~m. Lych' gains won t feed our people or fuel o

lopment. I endorse the comments yesterday by P of~ L> on joint ventures, and we welcome Amh ~d

Sg that jolt ventures sho ld be lookedure on a political level to resolve di f ferences and d'

would point to the Treaty on Fisheries between the governments pfcertain Pacific island states and of the U5. as being an overwhelming-ly successful dispute settlement agreement.

One more comment on the second paper. In it there is a disregardof any other forms of cooperation beyond international organizatioas,%'e in the South Pacific have a proliferation of international organiza-tions. %e cannot afford to pay for them. Bilateral relations, just likeinternational management organizations, may also be unstable andinefficient. W'e ask that distant water nations look creatively at amultilateral approach when dealing with the micro-states of the SouthPacific t.e., cooperating with the Pacific ishnd states as a group aadin ways that to not neces,erily involve costly new organizations!.Ragtag Johnstown I was hoping that when we turn to drift-netting sadother high seas subjects it would be brought out more clearly that theForum Fisheries Agency in the South Pacific has been extremelysuccessful in organizing its diplomatic and Inanagement resources topromote the further development of its fishery resources and elicit saagreement from distant fishing states on the need for managementregujations that would str3ddle the seaward limits of their natioaslzones. Only one week ago, Japan announced its decision to suspenddrift-netting in the South Pacific, and in some large part that decisismust be due to the success of the FFA in advancing its casepoint of my presentation this morning was to emphasize the complex'y ese matters, and we must expect a variety of diplomat'cstrategies to be experimented with between coastal fishing states IMl

high seas fishing states. Agencies or associations such as the FFA willcontinue to be successful if they experiment with three kinds ofstrategies. The first category consists of transactional diplomacydesigned to produce legally binding international agreements. becauselimitations are built into treaties, two other strategies must be used inthese complex situations. The second one would be guidelinesdiplomacy, which is designed not to produce a binding internationalagreement with the limitations pertaining to these, but non-bindingcriteria on guidelines that can be formulated in very great detail fromthe scientific community, perhaps more so than international agree-ments could properly be, and therefore with much greater flexibilitybuilt into them than is possible in the case of most fishery agreements.Finally, in the cases of greatest complexity it may be necessary toresort to some degree of non-coercive leverage diplomacy, an exampleof which has been seen in the United Nations recently during thedebate in the General Assembly on drift-netting. The future offishery diplomacy in these complex issues involves all three kinds ofdiplomacy, shifting in severity from time to time as the occasiondemands. I certainly did not intend to denigrate the FFA in anycomments I made this morning. On the contrary 1 would rathercompliment the FFA for taking a leadership role in diplomaticstrategy for a developing region.

155

LUNCHEON SPEECH

PROPOSALS REGARDING A TWELVE-MILK LIMITFOR THE TERRITORIAL SEA IY THE UNITED STATES

IN 1970 AND JAPAN IN 1971:IMPLICATIONS AND CONSEQUENCES

Shigeru OdaInternational Court of Justice

The Hague

I am very pleased and greatly honored to have been asked by theLaw of the Sea Institute to speak today oa the occasion of its 24thAnnual Conference. This invitation was probably extended to me asa national of the host country; when the Institute met in The Nether-lands last year, I was also asked to speak -- in all likelihood becauseI am now living there. In fact, however, the Institute is not new to me.On the contrary, nearly a quarter of a century ago, I was kindly invit-ed by my friend Lewis Alexander to be one of the participants at the1st Annual Conference of the Institute in June 1966, at Kingston,Rhode Island. In that inaugural meeting I actively participated in thediscussions from the floor.' In June 1967, at its 2nd Annual Confer-ence held, once more, in Kingston!, I presented a paper on "Distribu-tion of Fish Resources of the High Sea: Free Competition or ArtificialQuota?"'

Since UNCLOS I in Geneva in 195S, where I witnessed the adoptionof the four Geneva Conventions on the law of the sea together withthe failure to adopt the three-mile rule of the territorial sea, I havebeen given many opportunities to be present at historic landmarks ofmajor significance to the development of the law of the sea. Today,within the rather short time given to me, I would like to recall justtwo occasions around 1970 in which both the U.S. and Japan whichhad been known as the strongest proponents of the traditional

According Co the recorda of that occaeion, I criticised the thea prevailing concept eftbe principle of abstention, Iuggeated that the outer limit of the coatinental shelf, aadefined in the 1968 Convention, «ould eventually extend indefinitely, and propc»ed tbaCthe sedentary fiaherim should be defined aa marine living reeourcee, aa distinct from thereeoiircea of tbe continental ahelf.

ahigeru Oda, DLtribution ol FLb Reaourcea on tbe High Seas: Free Competitionor Artificial Quota," The' Law of rhe Sra: Thr FgrrNv of rhea' Seas R~arecs, ed. Le«iaAlexander Kingston, R. I.: The I a«of the Sea Inatitute,1068!, pp. S9-Sl-

159

the conclusion of a new international treaty fixing the territoria! seaat twelve miles.

g nt mP ct of Stevenson's statementho e e, of the condItIons attached to h""'"'"' "' " '"m»»eparab!e from it. He mainlinedtrea y 'xing the twe!ve-mi!e territorial sea ho ld

transit through and over internationalcarefu!ly define p eferential fishing right fo

g, ' order to prevent the expansion of unilateral d'claims.'

son's statement on ! 8 February ]970 should reall�bs s ep taken by the U.S. government towards th

g t from the three-mile policy to the twe!po icY or the !>mit of the territorial sea. I weH re b h

ediately took stePs, that same evening, to send a e o t b�oreign office in To kYo, and I think that I was prob bl o f

t e first pe~sons to be aware of such a historic change i U,S. o!iwhich led to the adoption of the twelve-mile territorial sea.

A few months later on 23 May l970, President Richard NixonhiInSe!f reconfirmed the maritime pOliCy concerning the twelve-mileterritoria! sea in connection with his pronouncement on "United StatesPolicy for the Seabed", when he said that

It is equa!!y important to assure unfettered and harmonious use ofthe oceans as an avenue of commerce and transportation and as asource of food. For this reason the United States is currentlyengaged with other states in an effort to obtain a new hw-of-the-sea treaty. This treaty could establish a 12-mile limit for territorialseas and provide for free transit through internationa! straits. ItwOuld a!SO aCCOmInOdate the prOblems of deve!Oping cOuntries andother nations regarding the conservation and use of the livingresources of the high seas.'

Stevenaon'a atatement «aa confirmed by the State Department one meek later, on26 Pebruary IQ70, in an announcement worded aa foQowa:

The United Statea aupporta the 12-mile limit aa the moat widely accepted one, butonly if a treaty can be negotiated which will achieve widaapread internationalaccepCance and will provide for freedom of navigation through and over internationalatraita At the aame time the United Statea will attempt to accommodate Cheintereata of coaatal atatea in the fishery reaourcea oft their coaaca. DSB 62:848!

DSB 62:757; AJIL 54:9SO.

16l

O e y~ later, on 30 July 1971. this idea of a Package of tbetwelve-mile territorial sea with the passage through >nternatioegst ts and the preferential fishing rights to be granted to the yegg

propped fp the UN Seabed Committee by the U.$. in ~form of de art cles Mmhting of three articles resp ctively deglllwith the broth of the temitor~ sea, st it, and fisheries.'

Aisle of the' VA.' PamouecemestTo further your understanding of these clear announcements pf Ug

maritime policy in 1970 and 1971, 1 should perhaps give an expltion of the background involved. Throughout UNCI.OS 1 in !95' ~gUNCLOSH in 1960 the US., one of the strongest Proponents pf tltraditional three-mme limit among the developed maritime natipwas not tolerant of claims for an extension of the territorial sea overmore than six miles, even if claims for a wider fishing zone of twelveshould have been acceptable. The reason for this was quite clear, theU5. wanted to guarantee the freedom of its naval neet and aircraft tomaneuver through strategically significant straits throughout the wprldand had tp avoid the possibility that those straits would eventually, ala consequence of the general expansion of the territorial sea, be partof the territorial seas of coastal States bordering such straits.

After some informal negotiations with other NATO countries andthe Soviet Union towards the end of the 196Gs, the US. becheconvinced that the free passage of warships and military aircraft cpotdbe guaranteed in international straits in exchange for her recognitionof the twelve-mile territorial sea. ln other words, the U.S. chosetwelve miles as the limit of the territorial sea, but only in return forthe free passage of warships and military aircraft through internationalstraits.

lt cannot be over-emphasized that the proposal for the twelve-m>temtorial sea would not have been cpnceivable without the adoption,together with it, of its inseparable corollary; that is, the free passaleof warships pr military aircraft through international straits tp beincluded within the extended twelve-mile territorial sea. The U5. an<some other major powers would npt otherwise have agreed, in 1973.

A/hC.lsd/SC3l/-t .4.

162

to hold UNCLQS III which finally led to the conclusion of the UNConven'tion pn the Law of the Sea in 1982.'

For the U.S., the recognition of the twelve-mile territorial sea wasa concession. From the point of view of the developing nations, how-ever, the twel ve- mile territorial sea was nothing other than anendorsement of what had already been a customary rule of law and,therefpre, its recognitipn should, for that reason, have been uncondi-tional. The twelve-mile territorial sea could not have been the subjectof a bargain in return for a recognition of the right to free transitthrough international straits. It followed that, as a concessionary orcpmpensatory measure for the benefit of the developing coastal States,the U.S. had to provide the inducement of preferential fishing rightsbeyond the limit of the territorial sea.

It appears that the fishing interests of its own natipnals in the oshore areas of other coastal States, seen as of secondary impprtance tpthe U.S. as clearly observed already in the course of UNCLOS I andUNCLpS II in 1958 and 1960 respectively!, could easily be sacrificedin exchange for the safeguarding of the most essential security interestof passage of warships through strategic straits.

Implications of the Territorial Sea Regime under the UN Convention onthe Law of the Sea

A new regime of the twelve-mile territorial sea in the 1982 UNConvention on the Law of the Sea cannot be understood withoutreference to this background. Whether Article 38 on transit passagethrough straits used for international navigation which does not,however, specify the passage of warships! should or should not beinterpreted in this context, may depend on the rules of treaty law and,more particularly, on the rules specified in Article 3l of the ViennaConvention on the Law of Treaties. Yet it appears, at least in my eyes,entirely natural to interpret the provisions of the 1982 Convention asmeaning that passage through international straits of any type ofwarship, whether on the surface or beneath it and carrying conven-tional or nuclear weapons, should be guaranteed.

I ahold add in thie connection that it ie eometimee enggeeted t»t the Pro"ieione ofthe 19' Convention on the international eeabed area ehonid be hnhof traneit paeaae,e through etraite. tn my vie«, however, the hnh of the tran t P~eeedeted only «here there «ae a recognition of the t«elve-mile territorial eea

163

naval fleet to engage in maneuvers -- whereas fishery interests wereof no more than secondary importance to that country.

The Fate of Japan's ProposalIn Colombo, in January 1971, Japan's proposal for preferential

fishing rights beyond the limit of the twelve-mile territorial sea wasnot considered acceptable by most of the developing nations of Asiaand Africa, which would have been far more ready to accept a simpleextension of their jurisdiction to cover the vast offshore fisheries, saya 200-mile distance.

The six-member Working Group on the Law of the Sea, set up inColombo, met in late June 1971 in New Delhi where, on behalf ofJapan, I presented a working paper on fisheries that ran to more than.10,000 words," The paper had, once again, been prepared by myselfand Mr. Kuriyama with the close collaboration of the staff of theFisheries Agency, and we were very proud indeed of this work which,in our view, could really reflect Japan's philosophy on maritime policyor, more concretely, fisheries policy. My task at New Delhi was topersuade my colleagues in the Working Group, like Mr, S. P. Jagota ofIndia and Mr. Frank Njenga of Kenya, to discourage the extension ofthe 200-mile fishery jurisdiction, which they had been inclined toadvocate in Colombo some months before. According to the record ofthe meeting, I took the floor for a total of five hours in an attempt topersuade them to fall into line with Japan's philosophy. On the otherhand, Frank Njenga started campaigning for the 200-mile jurisdictionfor fisheries purposes.

A few weeks later in Geneva, in July 1971, just prior to the UNSeabed Committee meeting, the AALCC's Subcommittee on the Lawof the Sea held a meeting in which I once again attempted to advocatethe idea of preferential fishing rights in lieu of the expansion of thecoastal jurisdiction. However, Frank Njenga's suggestion of a simpleextension of jurisdiction over wider offshore fishery areas was moreattractive to those representatives of certain countries in Asia andAfrica who were making their first appearance at the meeting on theIaw of the sea.

At the UN Seabed Committee in the summer of 1971, the conceptof preferential fishing rights to be granted to coastal States in returnfor the twelve-mile territorial sea limit did not particularly appeal to

Thia paper wea later replaced by the "Propoaed Regime concerning Fiaheriea on theHigh Seaa which t aubmitted at the 1Sth Seaaion of AALCC in January 1Ã5.

165

proposal by the Soviet Uaion and other Eastern European countriesentitled "Draft Articles on the Economic Zone,"" a proposal by theeight countries of the European Community entitled "Draf t Articles oaFisheries"" and the U.S,' proposal entitled "Draft Articles for aChapter on the Economic Zone and the Continental Shelf.""

After the informal discussions and aegotiatioas throughout thesessions of UNCLOS III between 1975 aad 1982, the final text of theUN Convention oa the Law of the Sea was drafted to guarantee, ia the200-mile zone, the rights of land-locked States Article 69! and therights of geographically disadvantaged States Article 70!. Moreimportant is the fact that the concept of "conservation of livingresources" Article 61! and "utilizatioa of the living resources" Article62! now constitute an intrinsic part of the regime of the EKZ. Itfollows that the concept of the EEZ, once it is accepted in interna-tional law, will not allow any coastal State simply to monopolize theexclusive use of fisheries ia the 200-mile zone, as in the originalproposal by Kenya early ia the 1970s, which does not provide for anyobligation to be imposed upoa the coastal State in the interests of thewhole community or of the neighboring State.

Enactment of the Twelve-Mile Territorial Sea and the 200-MlleFishery Jurisdiction by the U.S, and Japaa

Japan's Lcgislatioe ie 1977 aed the UD. Provlosnceascnt in 1988@oncoming the hebe-Mile Territorial Sea

The UN Convention on the Law of the Sea was signed by 119 Stateson 10 December 1982, at Moatego Bay, Jamaica, at the conclusion ofUNCLOS III, which had by that time lasted for a period of nearly teayears. Neither the U.S. nor Japan signed it on that day; two monthshter Japan signed it but has not yet deposited a ratification. TheConvention has still not entered into force, as it has not yet securedthe required sixty ratifications.

Japan which in 1971 had expressed its readiness to accept thetwelve-mile territorial sea on the condition that that limit would alsobe the limit of fishery jurisdiction! had already on 2 May 1977, whenUNCLOS III was still in progress! promulgated fhe Law on theTerritorial Sea," which provided for ib twelve-mile territorial sea

A/CONF.B2/C.2/L.58!

" A/CONF.B2/C.2/L.4O!.

+ A/CONF.B2/C.2/L.4T!.

1 67

statement relating to the "Uniform interpretation of rules of interna-tional law governing innocent passage," in which both countries jointlydeclared:

All ships, including warships, regardless of cargo, armament ormeans of propulsion, enjoy the right of innocent passage through theterritorial sea in accordance with international law, for whichneither prior notification nor authorization is required.»

Transit passage through international straits was not specificallymentioned but l consider it to be obvious that the principle thusdeclared would have applied to it mutatis mutandis.

According to the sources made available by the UN as of 31December l989, the twelve-mile limit had been adopted for theirterritorial sea by as many as 110 States including the U.S. and Japan!while, on the one hand, seventeen States claim a limit wider thantwelve miles, including the 200-mile limit and, on the other hand,sixteen States still keep their traditional three-, four-, or six-milelimits.

Japae's Legislation in 1977 concerning the 200-Ni Ie Fishery Jurisdic-tion and the UE.' Pronoumemenl ie 1983 os the EEZ

Japan, in parallel with its enactment of the twelve-mile territorialsea, promulgated on 2 May l977 "The Law on Provisional Measuresrelating to the Fishing Zone" and thereby laid claim to the fishery jur-isdiction over the 200-mile offshore areas." This situation could nothave been conceivable several years previously, when the basic aim ofJapan's maritime policy had been to prevent any fishery jurisdictionbeyond the twelve-mile limit. Such a rapid change by Japan in itsmaritime policy concerning fishery jurisdiction may well be explainedby the fact that the ocean fishing interests, which had long beenmaintained as a priority by Japan, began to decline in the face of arapid development of the fishing industries of the developingcountries, and that Japan began to find itself in the position of havingto defend its offshore fishery interests against invasions by foreignfishing vessels of either the developed or developing nations.

/LM, 28:1446.

" JA1L, No. 2l, p. 100.

169

f t ~ that the sixteen nations which have se t up a 200 oils"f &cry one' include Canada, Denmark, japan, the Netherlands, ~Unit~ Kingdom Md West Germany These nation. Jap ' e

1�, would'have b n strongly oppo~d tp the exercm gexclusive fling rights by coastal States in offshore areas beyondI;mit of the territorial sea, even if the territorial sea were to be

from its traditional three-mile limit to a twelve-mile linetI must repeat that, under the UN Conventio n on the Law of the Ses,the claijn to a distance of 200 miles is permissible only in terms of 0@ppZ, in which due consideration is given to the common interest Of

fest of the world, that is, to the prese r vation and optimumtion of fishery resources. There certainly is no provision in dg

Convention that relates to such a 200-mile fishery zone.On 10 March 1983, by a proclamation of President Reagan, the Ug

adopted a 200-mile exclusive economic zone." Whether the U.S. hs3really assumed the obligations to be imposed under the concept of theKEZ remains to be seen. Seventy-aine States including the U.S.! lgvealready claimed a distance of 200 miles as an EEZ, I must point Out,however, that regardless of the terminology used to describe them, tlNzones chimed by those States do not, in most cases {and including thecase of the U5.' pronouncement of 1983!, accord with the concept ssstated in Part V of the UN Convention. They do not contain aayconsideration, as required by the Convention, of common interestssuch as the preservation or the optimum utilization of fisheryfeSOurCeS.

I fail to understand why those leading western maritime nations havesometimes tended to lay claim to the 200-mile zone for fishery pur-poses, whether in application of the unfounded concept of the 'fisheryzone" or in the disguise of an exclusive economic zone. Those fisheryIones, although originally claimed by many Latin American countrilsin the post-war period, should have been superseded by the now coIL-mon concept of the 200-mile exclusive economic zone." It is a mistak<to consider -- as is often suggested � that the 200-mile "fishery zone'should be a first step to the proper concept of the 200-mile exclusiveeconomic zone. It wou!d be extremely difficult to imagine that, oncethey have claim& the exclusive uM of fisheries described as a fisheryzone or even as an EKZ, those States wiLL, when the 1952 Conventio nhas come into force, eventually incorporate fhe concept of co~»I

~ lLAf 22:46l; h JIL 77:619.

l70

interest in accordance with the genuine concept of the "exclusiveeconomic zone,

<n conclusion, I would like to stress that my remarks have been nomore than a personal reflection on the rapid changes in maritime lawand policy during the past twenty years. The U.S. and Japan, two offQe strongest proponents of the three-mile policy, indicated at the startof the 1970s that they were ready under certain conditions anddif ferent ones at that! to associate themselves with the twelve-mileterritorial sea. On the one hand, the U.S. has by now succeeded inensuring its own security interest by means of the free passage ofwarships through the territorial seas or international straits of foreigncountries. On the other hand, Japan, by claiming for itself theexc}usive control of offshore fisheries within the 200-mile limit, hase f fectively made a complete reversal as, I might add, the U.S. has alsod0ne! of its traditional maritime policy.

SESSION IV:

LIVING RKSOURCKS PART 2!

STATE OF HIGH SEAS RESOURCES

S.M. Garciaand

J. Majkowski'FAO Fisheries Department

Rome, Italy

The research on and the management of the commercial fisheries ...is potentially, in many circumstances, an economic and politicaldisaster. Royce, 1988!.

Scientists will continue to grumble that they are being asked to dowhat cannot be done and are not being provided the funds to dowhat needs to be done. Larkin, 1988!.

Iatrodttc tlon

Strictly speaking, high seas resources are those resources that existbeyond national jurisdiction. This jurisdiction varies from country tocountry and this paper focuses on resources which are mainly distri-buted beyond 200 miles from shore, regardless of the actual jurisdic-tional claims in the area of distribution, The only exception is theAntarctic resources which, because of their particular statute and theirpresent state of depletion, have been mentioned,

Most "high seas" resources exist both inside EEZs and in the highseas and could probably be considered as straddling stocks! and oftenmove between these two areas either seasonally or during their lifecycle. In biological terms, they can be neritic or oceanic, with a rangeof intermediate categories. They can be considered mostly neriticwhen their life cycle and distribution is largely confined to the conti-nental shelf and upper slope despite the fact that they extend to, andmay be caught in, the high seas Maps 6, 7!. Neritic high seas

Natione Food and Agriculture Organiaation FAO!, who extracted for ua a wealth ofiaformntion from the FAO apeciaa data baae, and to Dr. R3, Saamiah, Department ofFiaheriea and Ocaana Canada!, waa kind enough to provide ua with uaeful commentaand correctiona on the aection dealing with Pacific salmon. Any error or orniaaion ia,however, our aole reaponaibility.

175

Cetaceans

The resourcesCetaceans exist all over the oceans, from the Arctic to the Antarctic

hfap 1!. The following information is largely taken from %'atson�981! and from FAO Species Identification Sheets for FisheriesPurposes.

Some species have a very localized distribution and are found onlyin the North Pacific Gray whale, bering sea beaked whale, Dali'sporpoise!, in the North Atlantic Northern bottlenose whale, North Seabeaked whale!, in Southeast Asia snubfin dolphin!, in the Arctic bowhead whale and narwhal! or in the Antarctic pygmy right whale,dusky dolphin, Gray's beaked whale and many other beaked whales!sometimes extending in warmer areas southern bottlenose whale!.

A few species have an ante-tropical, bipolar, distribution in thenorthern and southern cold-temperate zones right whale, longfin pilotwhale!. They tend to migrate toward the Equator, but not in tropicalwaters, in winter, for reproduction, and polewards for feeding insummer.

A large number of species are distributed in the warm intertropicalzone e.g., Bryde's whale, dwarf and pygmy sperm whales, spinner,spotted and many other dolphins!. Many of the "intertropical" dolphinsextend their distribution well into temperate and even cold waters e.g., bottlenose, striped and Gray's dolphin, false killer whale!.Movements seem to be limited. The species may migrate into slightlymore temperate and richer waters in spring and summer and return totropical grounds in autumn and winter. There is also some evidence ofinshore offshore migrations. The link between populations on bothsides of the Equator is often not clear and strong mixing is suspected.

A few species, indeed the major commercial ones and the ones thathave supported the most intensive exploitation, are cosmopolitan andcan be found everywhere from the Arctic to the Antarctic blue,humpback, fin, sei, minke and sperm whales as well as the killerwhale!. The various species have variable degrees of affinity for polaror tropical waters. There is some indication of synchronous movementsto lower latitude reproduction grounds in autumn and winter andhigher latitude feeding grounds in spring and summer. The linkbetween the populations in the two hemispheres is not always clearand some limited mixing is suspected.

177

and to allocate resources as a means to avoid wastef ul competition anddepletion, The absence of limitations on the entry into the whale busi-ness, the competition and disagreement between whaling nations, thepursuit of short term interests by the whaling industry, the commonproperty nature of whales, their biology slow growth and low fecun-dity! led to successive depletion of the most commercially attractivestocks. This was further accelerated by a management system whichinitially considered all whales as one single crop without early con-sideration to species and populations.

The strong rise in public awareness of whale depletion channelledthrough environmental movements led to a call for a ten year blanketmoratorium on commercial whaling at the UN Conference on the Hu-man Environment Stockholm, 1972! and in the following years. Thiswas not implemented as it was argued that many stocks could supportfisheries and that the data were not sufficient, Uncertainty in scienti-fic advice, once again, was used as a pretext for not taking any cor-rective action. This tactic was reversed by environmentalists who ar-gued that a moratorium was necessary because of these very datadeficiencies, in an attempt to introduce risk-aversion in the decisionmaking process.

In 1974, some management principles finally were establishedexplicitly through the New Management Procedure NMP! and adop-tion of maximum sustainable yield MSY! as a management objective.This procedure classified stocks on the basis of the relationshipbetween the present and initial stock sizes and the relative populationlevel at which MSY can be taken MSYL!. Stocks were classified as:

- Initial management stocks IMS! when they are above 1.2 ~ MSYLand may be reduced to MSY or optimum levels.

- Sustained management stock SMS! when they are between 1.2 and0.9 ~ MSYL and should be maintained at MSY or optimum level.

- Protection stock PS! when they are below 0.9 ~ MSYL and shouldbe totally protected. These are sometimes exploited, under exemptionclauses, by aboriginal subsistence fishing.

The procedure proved nearly impossible to apply in practicebecause of uncertainties and disagreements among scientists onpopulation parameters Allen and Kirkwood, 1988!.

As the Antarctic was being depleted, whaling focus shifted again tothe North Pacific and Atlantic and by 1976 all whale stocks were un-der quota reguhtions, thirteen years after the relevant recornrnenda-tions by scientists. Fifty percent of the catches were from the Antarc-tic and 20 percent from coastal whaling. The Indian Ocean Sanctuarywas established in 1979.

179

Finally, in 1982, a cessation of commercial whaling zero catch! wasapp«ved pending a comprehensive assessment, due in 1990. This as-sessment will involve an in-depth evaluation of the status of all whale

~ks in the light of management objectives and procedures, includ-ing the examination of current stock size, recent population trends,~ ying capacity and productivity. It will review and revise currentknowl«ge on methodology, stock identity and data availability. It willPlan and conduct the collection of new data and examine alternative

agemen«egimes Donovan, 1989!. This important decision wastak« largely on political considerations and bargaining despite thefact that some stocks, such as the southern minke whales, could veryPro bably sustain careful exploitation A]len and K irk wood, 1988!.

Th«ffective phasing out of fishing was very gradual. Only in l988as whaling limited, de facto, to aboriginal subsistence fishing for

G«enlanders, Alaskan eskimos and Siberian aleuts. For these fisheries,N»ng has been allowed to continue, although population level were

below the lowest at which commercial harvesting would have been al-lowed. Additional catches were planned and taken "for scientific pur-poses" by some whaling nations, despite doubts expressed in the Scien-tific Committee.

Uncertainty of the data and methodologies, strong political interfer-ence in sciences, and polarization of the Scientific Committee made itvirtually impossible to arrive at independent and ob jective consens~decisions. The state of many whales' stocks cf. next section! remainslargely uncertain. The comprehensive assessment in 1990 will be acrucial test for research. Meanwhile, biological, economic, environ-mental, ethical and moral considerations are becoming more explicitlyvoiced and tested Andresen, 1989!,

Stattca of sjecksMarine mammal resources are among the most vulnerable to ov«-

fishing because of their biology and, possibly, the link between socWbehavior and reproductive success. Unrestrained whaling severelyreduced different species and stocks, one after the other, in the l 8thand 19th centuries. The decline spread to nearly all stocks of gr~~twhales early in the 20th century Jackson and Royce, 1986!, g>vi+8one of the best examples of non-sustainable development in fisheries.

The large cetaceans, which include baleen whales and sperm wh@+s.are covered by the mandate of I%'C, which has provided most of theinformation available today. Nevertheless, it is hard to report on theirstate because of disagreement between scientists. Sahrhage �989! re-ports an estimated 400,000 blue, sei, fin, humpback and minke whales,

180

comprising a biomass of seven million tons. According to Gulland cit-ed by Andresen, 1989! Antarctic and sperm whales number well overa million and Antarctic minke whales could support a catch of $000individuals per year without threat to their existence. Not everyone,however, may agree with these statements. Considering the heateddebates on assessment methodologies, and the conflicting points ofview on management which prevail in IWC for certain stocks, thefigures given below, concerning state of stocks or population size,should be taken merely as indicative. Reference to the relevant IWCReports is given by the report number e.g., RIWC 33!.

Baleen whalesAt the beginning of the 19th century right whales Family Baiaeni-

dae! were depleted well below MSY levels in all oceans Gulland,1971!.

The right whale Balaena gIacialis! has been protected since 1937 GambeH, 1990!. In the southern hemisphere, recent sightings suggestthat Great Right whales have been increasing during the last few years Allea and Kirkwood, 1988!. In the Atlantic, however, the state ofthese stocks might be beyond recovery Allen and Kirkwood, 1988!.

The Gray whale Eschrichtius robustus! was driven to extinction inthe Atlantic some centuries ago. It is classified as SMS or IMS in theEastern North Pacific RIWC 37, 38! where the populatioa size is esti-mated at about 21,100 RIWC 39!. It has increased at a rate of 3.2percent per year between 1967 and 1987 IWC, 1990! and is aow closeto its initial population size Gambell, 1990!, Fishing continues underthe aboriginal subsistence exemption rule. In the Western North Paci-fic, it is estimated that the Okhotsk-Korea population size, before the1900s, was 1,000-1,500 individuals. They were severely depleted from1900 to 1933, and practically disappeared. There may be some signs ofslow recovery.

The humpback Megaptera ~ovaeangliae! was depleted seriouslyearly in the history of this fishery Allen and Kirkwood, 1988!, Thecatches dropped from 2,000 individuals in 1950 to a few in recentyears Table I!, before the moratorium. According to Allen aadLirkwood �988!, recent sightings suggest that this species has beenincreasing during the last few years in the southern hemisphere, whereit has been protected since 1964. The Western North Atlantic stock isestimated at 3-8,000 individuals RIWC 39! with an annual rate ofincrease of 9.4 percent. A quota of 3 whales has been agreed underaboriginal subsistence fishing for St. Vincent «ad The Grenadines. InWest Greenland RIWC 37!, the stock is protected.

181

RIWC 37! is unclassified. Populatioa size is about 21-31,000 RIWC40!. It supports an aboriginal subsistence fishing for Greenlanders. OffWest Greenland RIWC 37! the stock is protected. Population size isaround 3,000 in the management stock area RIWC 40! but an aborigi-nal catch of 60 was agreed for Greenlanders. No estimate of for theEastern Canada stock is available.

- In the Pacific, the Okhotsk Sea-West Pacific stock is not classi-fied. The Sea of Japan- Yellow Sea-East China Sea stock RIWC 34 g37! has been proposed for protection with 0 catch limit. The 1986 levelof abundance is about 37-38 percent of the initial level in 1962. In therest of the North Pacific RIWC 33!, the stock is under InitialManagement with 0 catch limit. Off the Canadian east coast RIWC33! the stock is unclassified with 0 catch limit.

In the Northern Indian Ocean RIWC 33! the stock is under InitialManagement with 0 catch limit.

The troPical Bryde's whale Balaenoptera edeni! has been hunteoaly lightly. There is no consensus, however, regarding their status inthe East China Sea RIWC 34!, South Indian Ocean RIWC 33!, NorthIndian Ocean and for the Peruvian population RIWC 34!. Stocks inthe South Atlantic RIWC 33!, South Africa inshore RIWC 34! andEastern South Pacific RIWC 34! are unclassified with 0 catch limit.The Eastern North Pacific and North Atlantic {RIWC 33! are underinitial management with 0 catch limit. The Western North Pacificstock is under Initial Management RIWC 36! with a population ofabout 15,700-19,800 individuals �4-58 percent of initial level!.

Sperm +halesThe sperm whale Physeter macrocephahs! is the largest toothed

whale. Until 1974 20-25,000 were taken every year. The catch de-creased rapidly to a few hundred in the late 1980s out of the Antarcticarea where catches have been nil throughout the 1980s. The populationmay still number a few hundred thousand, but their sex-ratio has beengravely disturbed by hunting Allen and Kirkwood, 198$! and theirexploitation has been banned. Many of the depleted stocks have tend-ed to rebuild under regimes of little or no hunting, with recordedgrowth rates from 2.5-7 percent Allen and Kirkwood, 1988!. Theyhave been protected in the North Pacific since 1988 RIWC 38!. In the~orth Atlantic they have been protected since 1981 and might be re-covering arouad the Azores and in the Indiaa Ocean sanctuary. Thereis ao agreement on the status of Southern Hemisphere and EasternNorth Pacific stocks.

183

Small cetaceans

Very little is known about the biology, population sim. stock s~~ture or status of small cetaceans small toothed whales and dolphin !-Often exploited by coastal fisheries, directly or accidentally, they anot formally covered by IWC and not given much attention by tradi-tional fisheries bodies. The following is taken essentially from Watso I 981! unless otherwise stated.

The Baird's beaked whale Berardivs bairdi! has long been the taj'Setof Japanese coastal whaling in the North Pacific. It may be affectby gillnet fisheries. Catches have oscillated between 40 and 60 indi«-duals Table l!. There are many species of Mesoplodon, which arecommon in all three oceans. The same is said of the Cuvier's beakodwhale Zi phi us caviros<ris!. Catches of northern bottlenose Hy pe"pdon ampullatus! decreased from 7000 in l965 Gulland. l97l! t< 16in 1970-74, and to practically nothing in the 1980s Table ~!- ~~species may be one of the most depleted small cetaceans. The narvv'~al Mottodon monoceros! has decreased greatly in the USSR Arctic ocea+and may be over-fished in the Canadian and Greenland Arctic.

Not much is known about the status of the pygmy and Dwarf sPermwhales Kogia spp.!, two fairly uncommon intertropical sperm whales.

A large number of dolphins Delphinidae! exist in the high seas butvery little is known of their stock structure, biology, reproduction,abundance and potential. Many species are common all over the tropi-cal and temperate oceans, such as the spotted dolphin Stenella atten-eala!, the bottlenose dolphin Tursiops truncates! and the killer vv'hale Orc'ious orna!. The white beak dolphin L. albiroslris! is also comtno<in cold Atlantic waters.

The Longfin pilot whale Globicephala melaena! has been exploit~for three centuries in the Faroe Islands. In Newfoundland, thepopulation seems to have collapsed. It seems to have been eliminatedfrown the Pacific where it existed in the 10th century Watson. 198>!-It has been substantially reduced in the Atlantic but it is s'till nothunted in the Southern hemisphere. The shortfin pilot whale G. ~~-rorA'ynckus! is exploited in Japan, St. Vincent and Grenadines and doesnot Seem to be in danger.

Some species are taken frequently as by-catch of directed fisheriesand may require special attention. The northern right whale dolPhi< l issodel phi s borealis!, and the Pacific white-sided dolphin L+g«<I'-hy~chus obtiqui & ns! are common in the North Pacific. Dali's porpoise Phocoeaoides calli! may be depleted Gambell pers. corn.!- Thesespecies are taken in Japanese purse-seine fisheries and in the imPor-

184

tant driftnet fisheries for salmon, squid or albacore. They are alsotargeted directly in coastal harpoon fisheries,

The Atlan tic white-sided dolphin LagenorhyIIchm aeolus! iscommonly exploited in Norway.

The common dolphin Delphinus delphis! has been fished in theMediterranean and Black Seas. Thirteen thousand individuals werekilled annually in the Soviet purse-seine fishery until 1966. Catchesare increasing in the Azores, apparently due to a transfer of effortfrom the sperm whale to dolphins. It is also taken as a by-catch of thetuna purse-seine fishery in the Eastern Pacific see below!.

In the Eastern Pacific tuna parse-seine fishery, the spinner dolphin SleneIIa longirostri s!, the spotted dolphin S. at tenuata! and, to a less-er extent, the common dolphin Delphinus delphis! and the stripeddolphin S. coeruleoalba! have been accidentally taken in associationwith yellowfin tuna since the early 1960s, especially off southernMexico and Central America. Joseph and Greenough �979! reportthat 7 percent of the world tuna catch is taken in association withporpoise p, 169!. According to Watson �981! 10-15 percent of the500,000 individuals caught in the 1960s were spinner dolphins and400,000 spotted dolphins were killed in U.S. fisheries in 1970. Thislatter stock has been reduced by 50-70 percent due to the incidentalcatch in tuna purse seine fisheries but in the late 1970s, following theU.S. Marine Mammal Protection Act �972-1974!, the annual mortalityof porpoises has been cut down to 5 percent of its peak level of700-850,000 animals in 1961 Joseph and Greenough, op. ail; Allenand Kirkwood, 1988!, The Eastern Pacific porpoise population wasestimated at about 5 million individuals in 1974, with considerableuncertainty Joseph and Greenough, op. cia., p. 150!. The "U.S. killquota" decreased rapidly from 1976 �.14 dolphin/ton of tuna caught!to 1977 �.25 dolphin/ton!. Mortality estimates reached 90-110,000 in1987. This represents a decrease of 10-24 percent compared to ! 986but is still considered too high when compared to abundance.

Fishing pressure is being reduced rapidly. The commercial embargoplaced by major consumer companies in the U.S. has lead to reducingthe activity of the Eastern Pacific U.S. tuna fishery, and to a searchfor effective management measures aimed at reducing incidentalmortality further.

Other species are also taken in gillnets all over the world in coastaland offshore areas, and little or no information is available. For in-stance, U.S. research estimates the harbor porpoise Phocoena phoc'oe-ea! population in California at 1900, and the annual kill by gillnets at200-300 per year, raising concerns. Total reported catches have varied

185

between S00 and 1,000 individuals per year without trend Soerce-FAO statistics!. Depletion of the white whale Delphinapserus lmcas!by Alaskan subsistence fishing reached 6.7 percent, and is raisingconcern. Significant catches of small cetaceans are being taken ia SriLRRka in what seems to be a tuna-shark-dolphin targeted traditiolaidriftnet fishery, producing 90 percent of the country's offshore catch-

Tabie 1 sho~s that catches of baleen whales have decreased drasti-+diy, especially in the last two decades from more than 2l,000 ia1970-74 to less than 700 in 1988!, due to abundance decline, econo~cfailure of the industry, and management measures prompted bxworldwide public and scientific concern expressed through the PvVC-Ho~ever, the reported catches of toothed whales and especially Aesmall species! have increased drastically, from 18-26,000 individualsin the 1970s to 130-1$0,000 in the late 1980s. This increase seems tobe related to better reporting o f dolphin catches in the Eastern Facie ictuna fisheries, and may therefore be an artifact when real catches ofdolphins in that area have decreased drastically see above!.

TuILa aa4 Tuna-Bke Species

Thc resourcesThe sub-order Scombroidei is usually referred to as a tuna-<ike

species. They are composed of tuna sometimes also referred to as truetuna!, billfish, swordfish and other tuna-like species ranging throng>-out the tropical and temperate zones of the world. Many are extreIne<Yvaluable commercially. Top quality northern and southern bluef in tunafor sashimi raw fish! reaches U.S. $200 per kilogram. Many spec'iesare extensively used for canning. Due to spectacular fighting abi>ty.some species, especially billfishes, are among the world's aeo+tsought-after gamefish. The demand for tuna and tuna-like species isexpected to continue to increase in the future, while most traditionaltarget species are already fully or overexploited.

The tuna Thunnini! comprises 13 species and 4 generK Auxis, E's-~hynnus, Katsuwonus, and Thunnus. The most commercially valuabletuna species belong to the genus Thunnus. The northern bluefin tuna Thunnus thynnus! exist in the hmfic and Atlantic oceans, from 70 t<0 degrees North. The southern bluefin tuna T. maccoyii! is found iethe Atlantic and Pacific oceans from 10 to 60 degrees South. The b>I-eye tuna fT. obesus!, yellowfin tuna T. albacares!, and albacore T.ahdunga! are found all over the three oceans between 40-55 degreesNorth and 40-45 degrees South. The skipjack Katsuwonus peIamis!,of relatively lower value, is also distributed in the three oceans from

186

50-60 degrees North to 50 degrees South. These species are the princi-pal market tuna species. They can undertake long range migrations although skipjack and yellowfin tunas may do so to a lesser extent!and are considered highly migratory by the law of the sea. Underheavy exploitation, however, it has been argued that only a minor partof the population might get a chance to migrate, especially skipjackand yellowfin.

Two other species of lower value occur in a circumpolar distributionia the Southern Ocean between l5 and 50 degrees South: the slendertuna Allothunnus fallai! and the butterfly kingfish Gasjerochismamelampus!. Despite their lower value, they represent a significantpotential and are now caught as by-catch in the Japanese southernbluefin fishery.

Billfish lstiophoridae! include marlins Makaira spp.!, sailfish Is-tiophorusspp.!, and spearfish Tetrapturus spp.!. Swordfish Xiphiidae!include only one species Xi phias gladius!. With the exception of twospearfish, all billfish and swordfish species are distributed very wide-ly, but all species do not necessarily occur in all oceans, All the billfishand swordfish species are excellent sea food, and are also extremelyvaluable for game fishing.

Other important species are more neritic, living closer to shelves,around islands and archipelagoes. In this category are the less commer-cially valuable species of the Thunnus genus, such as the longtail tuna T. Iongol!, and blackfin tuna T. atfan jicus!. The first species occursin the eastern Indian Ocean, in Southeast Asia, and in Australia �0degrees North to 35-40 degrees South!. The second species is encoun-tered in the western Atlantic �0 degrees North to 25 degrees South!.Other tuna-like species of importance to fisheries are Acanthocybiumsolandri Wahoo!, Auxis spp. bullet and frigate tunas!, Euthynnus spp. kawakawa, black skipjack and little tunny!, Cybiosarda, Orcynopsis,Sarda bonito!, and Scornberomorus spp. Spanish and king mackerels,seerfish, sierra!. These species are not covered in detail in this paperdespite their potential and present importance for artisanal fisheries.

The /iskeriesMost tuna and tuna-tike species are commercially caught by various

methods pole-and-line, purse-seine and longline! all over the oceans Maps 2 and 3!. The first two methods are used for fish found closeto the surface e.g., skipjack and relatively small yeHowfia, albacore,and northern and southern bluefin tuna!, whereas the last method aimsat fish deeper in the sea e.g., large northern and southern bluefintuna, bigeye tuna, yellowfin, albacore, billfish and swordfish!. The

last two species are taken mostly as by-catch. The other gears used ar+troll lines, hand-lines, driftnets, traps and harpoons. Natural or artifi-cial fish aggregating devices FADs! are often used in conjunctio>with purse-seining or hand-lining.

The total annual catch of tuna and tuna-like species has steadilyincreased, from an average catch of about 1.85 million tons in the19IOs, to 3.97 million tons in 1988. During the same period, the cate>of the principal market tuna species increased from 1.37 to 2-> >million tons. This increase resulted from more than doubling theskipjack and yellowfin catches. For other species, the catches hav'ebeen approximately steady albacore and bigeye tuna! or evendecreasing southern and northern bluefin tuna!.

Seventy-one percent of the skipjack, 65 percent of the yello~fi+and 5$ percent of the bigeye are taken in the Pacific. The Pacific an4Atlantic catches of albacore tuna are comparable and higher than t~+catches of this species in the Indian Ocean. The northern bluefin tttnsais taken mainly in the Atlantic �7 percent! with the remainder in th+Pacific, Most of the southern bluefin tuna is taken in the Indian Oce~ 84 percent! and the remainder in the Pacific.

For the principal market tuna species, 67 percent of the 1988 cate>has been taken by the traditional tuna fishing countries: Ja~�93.MO t!, U.S. �75,000 t!, Spain �30,000 t!, France �50,000 t!~Republic of Korea �42,000 t! and Taiwan China!, �34,000 t!- ~~species are also intensively f ished by the philippines, Indones~Mexico, Venezuela, Solomon Islands, and Ecuador.

Important changes occurred in the early 1980s. Part of the Span~>and French purse-seine fleets shifted from the Atlantic to the IndianOcean. Part of the U,S. purse-seine fleet moved from the East to W<s~Pacific. Korea and Taiwan started purse-seine operations in tlt!%estern Pacific. En Southeast Asia, tuna fisheries are growing bu<mostly in the artisanal sector.

The catch of the other tuna species, also, significantly increasoclfrom about O.S84 million tons in the early 1970s to 1.185 million to~+in 1988. Because these catches are mostly taken by developing coun-tries, where the system of collecting and processing fishing statist>+~still needs improvement, figures may be less reliable. Also, the cate>composition of the secondary species frequently is not known acctsr-

~ 'Information on catches of tuaa Iod tuna-~y I~icy in thjg paper «oanoa ~

ataCkatice of the Food and Agdcutture Chgao4atioa, Inter-American Trapical TeamCoaaaailoton, Ia Cern ational Conttttilalon ott Cotllrration of Atlantic TunaFAG/UNDP Intro-Pacific Tuna Development and Management Program.

ately, because of likely misidentification of species. According toJoseph et al., �988!, their catch was composed mainly of seerfish�21,000 tons!, bullet tuna �21,000 tons!, black skipjack tuna �10,000tons!, bonitos �7,000 tons!, and swordfish �9,000 tons!.

Status o j stocksBecause of the wide distribution of the fish and its migrations and

the high mobility of the fishing fleets, research as well as managementof tuna and tuna-like fisheries need to be carried out in cooperationby all the countries concerned. Therefore, many international commis-sions and programs devoted solely to these species have existed formany years. In the Atlantic, the Enternational Commission for Conser-vation of Atlantic Tuna ICCAT! is competent. In the Eastern Pacific,the Inter-American Tropical Tuna Commission IATTC! has playeda major role, In the Western Pacific the Indo-Pacific Fisheries Com-mission IPFC! of FAO has a Tuna Management Committee. The For-um Fisheries Agency FFA! is competent for tuna management in theSouth Pacific and receives research support from the South PacificCommission. In the Indian Ocean, The Indian Ocean Fisheries Com-mission IQFC! of FAO has a Tuna Management Committee and itswork is supported by the FAO/UNDP Indo-Pacific Tuna Develop-rnent and Management Program IPTP!. Steps have been taken tocreate an Indian Ocean Tuna Commission.

Tuna stock assessment is a difficult task. In addition to usualshortcomings in catch and fishing effort statistics, the basic problemsare related to uncertainty about stock structures, difficulties inobtaining an accurate age composition of catches, limited knowledgeof reproductive biology and of recruitment mechanisms. Difficulty inderiving indices of effective fishing effort and abundance are partic-ularly serious and are due to changes in fishing methods and environ-mental conditions, as well as to the multispecies nature of fishing.

The status of stocks is determined from direct fisheries indicators catches, effort, CPUEs and size and age composition!, productionmodels, Virtual Population Analysis and other age-based methods. Theproblem with the local fisheries indicators is that they may not reflectthe overall abundance. Even their reflection of local abundances maysometimes be questionable, Due to the problems with the age determi-nation, the Virtual Population Analyses, based on catch-at-age data,can be applied only to few stocks. As a consequence, production mo-dels, ignoring the changes in age composition of catches, are mostcommonly used. They are unreliable, however, especially as the fish-ery does not cover the entire area of the stock distribution, and be-cause they require a good measure of effective fishing effort. Conse-

189

fluently, MSY estimates based on such models cannot be reliable aad'tend to change along with the development of the fishery. Any predic-tions regarding future population status and catches are hampered byunknown stock-recruitment relationships and environmental effects-The uncertainty is particularly high for neritic secondary specieswhich are particularly variable, and for which little research isconducted.

K.eeping in mind the significant uncertainties in their status. m»<of the principal market species appear to be fully utilized through»<the world, or over-fished, with the exception of skipjack. The bes<situation for the resource is probably in the Indian Ocean, whe~e th+tuna and tuna-like fisheries operated at relatively low intensity un'the early l980s, The status of these stocks is less well-known. beca+they have been studied for a shorter period and with less effort thaasome of the stocks in the Atlantic and Pacific. The status of thevarious stocks is as follows:

Albacore: In the North Pacific, the stock of Th~nnus alalunga isheavily fished or over-fished MSY 60-136,000 tons!. Catches havebeen decreasing since the mid-1970s. In the South Pacific, the deePwater strata of the resource is presently heavily fished. The MSY esti-mated at 3S,000 tons! might be significantly increased by intensifica-tion of surface fishing, but this would affect longline catch-rates. Inthe Indian Ocean, the stock might be fished at or just above MSY�9-2S,000 tons! but the assessment is uncertain. In the North Atlantic,the catches have been decreasing since the 1970s. These decreases ca+be explained by decreasing fishing effort but the stock SNtus is un-certain. In the South Atlantic, the stock is exploited slightly below theMSY, estimated with some uncertainty at 27-31,000 tons.

Slue/in: ln the North pacific, the status of Thunnus thymus isuncertain, and recruitment is highly variable. The potential impact Ofsquid driftnet fisheries on juvenile bluefin is a matter of concern- Inthe Eastern Atlantic and the Mediterranean, the biomass of northernbluef in has been declining for the last 10-15 years, but the stock stat~is uncertain. In the Mediterranean a very large proportion of Aecatches are of undersized fish below 6.4 kg!. In the Western Atlanti~.the stock is considered over-fished and the a parental biomass is nowonly 25 percent of that of the virgin stock. The southern bluefin Thermos muceoyii!, in the South Atlantic, Pacific, and Indian Oceans.is overexploited with a parental biomass of about 2S percent of that ofthe virgin stock.

Yellow fin'. the stock of Thunnus albaeares is heavily fished but thecatches seem to be sustainable. In the Western Pacific, recent catches,generally in the range of 205-220,000 tons, seem to be sustainable butthe 1987 catches of 280,000 tons may however not be. The EasternAtlantic stock is moderately exploited MSY ~ 117-125,000 tons!. Thestatus of the Western Atlantic stock is uncertain. In the Western IndianOcean, yellowfin are heavily fished. They are less intensivelyexploited in the Eastern Indian Ocean. Total catch in that ocean is stillincreasing.

Bigeye: The stock of Thunnus obesus is exploited at a level close toMSY around 150,000 tons! in the Pacific and the stock has been stablesince the mid-1960s. In the Indian Ocean it is heavily fished, but it isprobably in a healthy condition MSY 40-56,000 tons!. In theAtlantic, it is only moderately fished. Higher yields are attainable byincreasing fishing effort on large fish.

Skipjack: Catches of Katsuwonus pelamrs can be further increasedin both the East and West Pacific, where present catches are about100,000 and 650,000 tons, respectively. Similarly, increased catches arepossible in the Indian Ocean and the Eastern Atlantic, No assessmentis available for the Western Atlantic.

Bill fish and sword fish: Fishery statistics are incomplete. Even basicbiological information is very limited. Consequently, knowledge oftheir status is generally poor. On the basis of the existing information,however, some concern has been expressed about blue marlin andwhite marlin in the Atlantic. There are some indications that sailfishare moderately exploited in the Western Atlantic and not fully exploit-ed in the Eastern Atlantic. Similarly, the Pacific swordfish appears tobe moderately exploited. Very little is known about the status of bill-fish and swordfish in the Indian Ocean, but swordfish seem to beunderexploi ted.

The overall potential of tuna and tuna-like resources depends on thecombination of fishing techniques used to target the various agegroups. Improvements can be achieved in some cases Atlantic alba-core and yellowfin, southern bluefin! by protecting immature fish andtargeting older age groups more precisely. Problems exist concerningnon-compliance with present regulations in the ICCAT framework!and in selecting appropriate age groups. The need to protect dolphinsin the Eastern Pacific may lead to concentration of effort on small

sixes not associated with dolphin schools, leading to sub-optimal taanafishing. It should also be noted that protection of small sizes may beglobally ineffective for stocks with high natural mortality 4ke skip-jack or locally ineffective in areas with intense emigration. In addi-tion, bio-economic interactions between the various segments of thefishery must be studied in order to assess the overall impact of man-agement measures. Coordinated efforts in this direction are beingmade FAO, 1989!.

Considering the high mobility of tuna and of tuna fishing fleo'ts.there appears to be a clear need for good coordination between tulsamanagement bodies in the assessment of resources, and in the moai-toring of fleet movements. The suggestion has been made, also, to es-tablish a single worldwide organization for research on and manage-ment of tuna fisheries Joseph, 1990!, similar to that in existence forwhales, but with regional commissions. Major issues which remain tobe tackled, possibly better at regional level, are' .explicit limitation ofoverall effort, the allocation of tuna resources between coastal andnon-coastal countries, and the relative roles and responsibilities Ofthese two groups of countries in management of highly migratorspecies Art. 64 of the LC5 Convention!.

Salmon

Narth Pari fic safes

Fhe resourcesThere are seven species of salmon in the North Pacific: the pink

Oecorhynchus gorbaseha!, the Chum �. kenya!, the Sockeye O. nerka!,the Chinook O. tshaeyischa!, the Coho �. kisutch!, the Cherry D-masou! and the Steelhead �. mykiss!.

These anadromous fish occur naturally in the North Pacific Ocean.the Bering Sea, and adjacent parh of the Arctic Ocean. In the North-east Pacific, they spawn in freshwater from California to Alaska, tboNorth American Arctic coast, and the Aleutian chains. In the North-west Pacific they spawn from Northern Honshu, Japan, north ala'<Sthe Asian coast to the Arctic Ocean coast, including offshore islands-Tha resource comprises at least 10,000 stocks, based on river/stressof origin, Ricker, 1972! of American and Asian origin, which rnir iathe middle of the North Pacific between 35 degrees and 50 degreesNorth before returning to their original streams for reproduction. Thesmall number of age classes in the populations has led to research iawhich understanding of stock-recruitment relationships is a ma303'

192

concern and in which management is based on the concept of optimumescapement Larkin, 1988a!.

The biology and ecology of salmon in the freshwater habitat hasbeen thoroughly documented through nearly a century of investiga-tions but very little is known yet of the marine phase, despite the factthat it represents 75-99 percent of the total life history Beamish pers.corn.!. According to Larkin ! 988a!, total mortality at sea for sockeyeand pink salmon varies around an average of 90-95 percent. It isdifficult, with the knowledge presently available, to rank salmonpredators by order of importance. However, common predators, in themarine environment, are sharks Carcharodon carcharias, Prionaceglauca, Larva ditropis!, fur seals Callorhinus ursinus! and killerwhales Ornnus orca!, in the high seas, and the sea lion Eumetopiusjubatus! in the coastal zone. Early-life stages in the marine area maybe also significantly preyed upon by fish and birds,

The fisheriesFisheries, before 1850, were essentially aboriginal. Catches reached

record heights of 775,000 tons at the end of the 1930s and declined la-ter to about 400,000 tons in the 1970s. Total catches oscillated around600-700,000 tons in the late 1980s {Table 1!. Jackson and Royce {1986,fig. 8.1! show that Asian production of wi!d salmon peaked in the late1950s at close to 300,000 tons �0 percent of the total North Pacific!and then declined continuously. North American production oscillatedaround 200,000 tons between 1950 and l975 and increased abruptlyafter this period, doubling in a decade. Larkin �988a! stresses theproblems related to environmental degradation and the over-fishing,resulting from the inadequate management enforcement in high seasfisheries and the self-defeating international competition. Pressurefrom recreational fishermen is increasing in North America. Currentspeculations tend to link the present variability aho to climatic factors Seamish and McFarlane, 1989!. The USSR catches have been recov-ering recently and the Japanese hatchery program has been very suc-cessful Chikuni, l985! leading to an increase of 80-90,000 tons.

Status of stocksReporting on stock status should be done by individual streams,

which is obviously impossible here. pn the other hand, global state-ments are equally difficult.

Sophisticated, intensive, and costly management can be affordedbecause of the high value of the resource. According to Larkin l988a!, important pieces of knowledge are still lacking, much of what

193

is known is not used, and much of the potential is eroded by humactivities while management elaborates complicated compromi~~~tween pressure groups. Recent work indicates a biomass of m«e t~600,000 tons in the Northeast Pacific in the early I980s +are +McFarlane, 1989!.

As for most internationally managed resources, the fisheries cont+xis marked by conflicts, negotiations, and agreelnents for allocatio+ +the high seas fisheries resource between the four countries o«r'g nthe U$SR, Japan, Canada, and the U.S. Allocations are also negotiatbetween fishermen groups in each country e.g., allocation of 50 p <-cent of the U.S. catch to the Indians!. The general picture inAmerica is one of a highly intensive, overcapitalized fishery w»~>has, for most of the century, been economically inefficient. Altho ughlimited entry is applied to the Alaskan and Canadian fleets, the present fleet is probably 3.5 times too large and the present catches couldbe taken with I/l0 of it if little technology were added Larkin198 ga!.

Under the concept of Optimum Escapement, the best strategy . ~remove aH the surplus above that optimum. This strategy has lead.the past, to exploitation ratios of 85 percent, but lower ratios of 70percent are now proposed Welsh and Noakes, l99 l!. Recognizing t~potential consequences of inaccuracies in knowledge, adaptive ~-agement has been proposed Walters and Hilborn, 1978; Wal ters, l 986!-The i~crease of North American catches since the mid- l970s probablyreflects greater escapements resulting from reduced harvest rate+ Beamish, pers. corn.!.

Another concern is raised by the harvesting of mixed stocks in t>+high seas or the lower reaches of rivers. It is generally agreed that highseas harvesting fails to achieve maximum yield. It does not allow indi-vidual stocks to be ra~aged for optimum escapement and there is arisk of depletion of the less productive ones. Jackson and Royce l9.<!relate the decrease of Asian production to the practice of mixed stoc<fishing in the high seas, which does not allow for optimization o<escapement for each stock separately. Part of that decline might ILIIObe due to harvesting juveniles in the high seas.

Fears have been expressed that selection processes in the gillnet aa4troll fisheries may have led to a significant decline in the average sizeof coho and pink salmon. This and the potential negative genetic m~-sequences of intensive hatcheries programs have raised concern.

Enhancement and protection are certainly major characteristics afsalmon management, through habitat improvements, lake fertiliza-fions, installations of fishways and protection screens in dams andirrigation canals, logging and pollution controls, transplants, hatcheries

l94

etc. Although the overall effect of all these measures are hard toassess, the extraordinary success of the Japanese hatchery program�0,000 tons of chum salmon annually! is obvious.

The future of salmon resources is generally bright because of cul-ture, despite the risks for many local strains. Recognition by UNCLOSof privileged user rights of the country of origin offer a solution tothe allocation process and open conditions for even greater success ofenhancement, especially if some of the problems created by habitatalteration can be mitigated,

Hatcheries technology offers farming opportunities in other suitableparts of the world New Zealand, China, Chile!.

North At tannic sabnon

The resourceThere is only one naturally occurring species of salmon in the North

Atlantic Salmo saIar!.

The jisheriesSalmon is usually exploited in rivers and fishing at sea is usually

limited to traditional and sport fishing in coastal waters. In France,there is no commercial fishing at sea and sport f ishing produced 1-30tons per year between I 970 and 1985. In England and Wales, commer-cial fishing decreased greatly during the last century. In Scotland, mostfishing methods to catch salmon in the coastal area are prohibited. Anopen-sea fishery started in the early 1960s and was rapidly banned,Ail possible open-sea fishing gears are now prohibited Mills andPiggins, l988, p. 93!. In the Baltic Sea, catches have oscillated between2,$00 and 3,500 tons since the second world war. Coastal fisheries do-minated until the mid-1950s and were progressively replaced by off-shore driftnet fisheries, which today represent 80 percent of thecatches Larson, 1980!.

High seas "interceptory fisheries" started off West Greenland in thebeginning of the 1950s with gillnets and expanded between 1965 andl975 with driftnets and longlines. A similar high seas fishery devel-oped later in the Northeast Atlantic, in the 200 mile zone of the Fae-roe Islands. Salmon caught off West Greenland originate essentiallyfrom Canada and Scotland, but also from most other coastal countries.Fishing off the northeastern part of Newfoundland is also considered"interceptory" by the United States. Fishing off the west coast ofSweden intercepts salmon of Norwegian origin. These fisheries are asubject of concern for the coastal states of the North Atlantic, al-

195

though the actual impact of such fishing has not yet beenSince the early l970s the West Greenland fishery has been regulateby quotas and agreements have been signed between Greenland~Denmark, the Faeroes and the EEC and phasing out of salmo+»g"seas fishing off %fest Greenland. Driftnetting is not permitted inkeland and Norway. High seas fishing is prohibited in the USSR.

Hlegal fishing is also becoming a very serious problem in ao~+countries and in some instances illegal catches may be higher than' Iegal ones, as in England and Wales Mills and Piggins, 1988. p 7 ~.

A major problem limiting progress in assessing the North Atlantasalmon is the very poor quality of the fishery data. Total offic>a Iyreported catch has decreased by 40 percent in twenty years It is Senerally thought that national historical records are inaccurate po>c>-ing, under-reporting, drop-out! and inconsistent, so that the Past a+present status of the resource cannot be stated with any prac<~~Imeaning. The true catch, in some instances, may be three to four ti~esthe declared one, as in the U.K. and Canada. Iceland seems to be t>eexception Mills and piggins, 1988!. In the last three decades catch~have stagnated around 3,500 tons in the EEC. They have decreased»France, ireland and Scotland, while increasing in England and %ale ~The decrease in Spain is dramatic, from an annual catch of ~OG-900,000 fish in the 17th-18th centuries to 20,000 in the early I900sand S,000 during the last 40 years. Catches have also decreased in Ca-nada from 3,700 tons in 1920-1945 to 1,100 tons in 1983-1985! andIceland from about 2,SOQ tons in the early 197ps to 1,200 tons in t>eearly 1980s!. Catches have also decreased in Greenland from 2.000--2,500 tons in the early 1970s to 300-850, in the early 1980s. The Hu<-sOIl River is no longer the largest salmon producing river it used to be-Catches have increased in the Faeroes from S tons in 1968-l979 toI, l00 tons in 1980-1985! and Norway from 1,000 tons in 1900 to I 955to l,600 tons in 195S-1985! Mills and Piggins, I988!.

Despite the poor performance of wild stocks, the total productionof Atlantic salmon increased from about 13,000 tons in the 197Gs toI l6,000 tons in I988 due to culture Table 1!. Most of the catches Ireater than 90 percent! are coming from the Northeast Atlantic andall of the observed increase comes from that area.

Status oj stocks

The Convention for the Conservation of Salmon in the North Atlan-tic entered into force in 1983, establishing the North Atlantic Salvo>Conservation Organization NASCO! with the aim of encouraging t~erehabilitation and enhancement of Atlantic salmon Mills and Piggi~.

1988!. Similar aims are retained by the Baltic Salmon Fisheries Con-vention established in 1966. Scientific advice for management is pro-vided by ICES but Larson �990! indicates that, in the Baltic Sea theTACs agreed are twice as high as those recommended by ICES, endan-gering the few wild stocks left. In this area offshore fishing is veryimportant when all scientific advice on salmon state that offshorefishing on young feeding salmon is not an optimal strategy.

The stocks have suffered heavily from uncontrolled fishing, chemi-cal pollution directly or through acid rains!, reduction of spawningand nursery areas, physical barriers of hydroelectric equipment andover fishing legal and illegal!, at sea and in rivers. Everywhere restor-ation efforts are made. Some rivers e.g., the River Thames! have beenrehabilitated and sa/mon runs have recommenced. Fishing tends to bereserved to angling, but in the Baltic Sea large scale pelagic driftnetfisheries operate nets 21 km long Larson, 1990!.

The relative value of catches as an abundance index is open to ques-tion. If the catch figures themselves are of dubious value, assessmentof the historical and recent trends of Atlantic salmon stocks becomesrisky. The wild resource is generally considered depleted throughoutmost of its range Bielak and Power,1988!. Exploitation rates havebeen tentatively estimated at 80-97 percent in Norway, 29-82 percentin Iceland, and 33 percent in W. Greenland. In the Baltic Sea, 95 per-cent of the salmon surviving beyond the smolt stage are captured ICES, 1990!, and most wild stocks suffer from low escapement. A si-milar situation exists in the Gulf of Finland, where 95 percent of therecruitment is from culture ICES, 1990!. In Ireland there is generalevidence of decline in salmon stocks because of excessive exploitationat sea, despite stocking. An increasing proportion is taken by driftnets�0 percent in the 1950s, 85 percent in 1985! causing both biologicaland economic concern.

Wild stocks are in a bad condition but they are supplemented byaquaculture. In the Baltic Sea, for instance, the recruitment fromculture is about 10 times higher than from the wild ICES, 1990!,Oceanic Squids

Fhc' resources

Cephalopods are essentially annual species. Adults are active preda-tors, and appear high in the food chain where they prey upon almosteverything they can catch. They are also prey, and are found in thediet of toothed whales, seals, sharks, birds, tunas, billfishes etc. Theyare intermediate predators and proliferate in over-fished fisheries,

197

- Lepidoteutidae: Pholidoteuthis boschmai is of importance in thecentral, and southern Atlantic, in the southern Indian Ocean and inIndonesian waters,

- Histioteuthidae: Histioteuthis bonnelli in the Atlantic andSouthern Indian Ocean,

- Thysanoteuthidae: Thysanoteuthis rhombus spreads over theinter-tropical area of all three oceans and is exploited in Japan,

- Crane'hiidae: Mesonychoteuthis haeriltoni is potentially importantin the Southern Ocean south of the Antarctic convergence,

- Contttidae: Gonatopsis borealis is exploited in the North Pacific.

The fisheriesThe spawning concentrations of neritic species are often exploited

with trawls on shelves and above slopes, although some of them mayrange fairly far offshore, They are also exploited by jigging. Juvenilesof the oceanic squid are exploited mainly by set nets and seines on theshelf while feeding adults are exploited by jigging vessels and largescale driftnets. The most important producing regions for oceanicsquid fisheries are the North Pacific and the Southwest Atlantic.

The opportunistic nature of squids in over-fished areas mayexplain, at least in part, the steady increase of their catches from745,000 tons in the early 1970s to 1.7-1.8 million tons in the latel980s. Catches of neritic squids Loliginidae! have increased froml 10-l20,000 tons in the 1970s to 200-240,000 tons in the late 1980s.Catches of oceanic squids Ommastrephidae! have osci]lated between250 and 460,000 tons during the same period and come exclusivelyfrom the Atlantic about 20 percent, mainly from the North! and thePacific about 80 percent! Table 1!. Catches of Ornrnastrephidae inthe North Pacific have decreased by 50 percent since the earlyseventies from 425,000 in 1970-1974 to 205,000 tons in l988! whilecatches in the South Pacific increased from 7,500 tons to 50-65,000tons.

Any discussion on the evolution of squid fisheries remains subjectto the validity of published landing statistics. As noted by Caddy�989! the quality of government reporting to FAO seems to decline,since the proportion of the total squid catch which is identified neritic + oceanic! has decreased from 76 percent in 1970- l974 to 34percent in 1988. The much higher catches in the North Pacific, closeto the main Asian markets, lead one to believe that other areas of theworld ocean have potential still for higher production.

199

Jigging fisheries on Ommastrephes barlrami started with a catch Of14,000 tons in 1974 following over-fishing in the Japanese Todarodesfishery from 1959 onwards, Osako and Murata, 1983! and search fornew grounds in the high seas, following the establishment of EKZI inthe early 1970s. The fishery extended offshore between 1974 and 1980reaching 170 degrees East. The fishing grounds oscillate seasonallybetween 39 and 49 degrees North Jef ferts, 1986!. Drif tnet ting startedin 1978 close to Japan and expanded rapidly into the central part ofthe North Pacific between 170 degrees East and 160 degrees West. BYl986 Japan alone accounted for approximately 150,000 tons and it ~asestimated that Korean and Taiwanese vessels catch a similar amount Sealnish and McFarlane, 1989!. The total catch would therefore be ofthe order of 300,000 tons, a value close to its total estimated potentiaL

The fishery was regulated by Japan after conflicts between jiggersand gillaetters in 1979 and gillnets were confined at more than 100 k~offshore, Management includes by-catch limitations but internationalconflicts with salmon and tuna fisheries are intense and difficult toresolve in the absence of an international body with competence oa allspecies concerned. Jefferts �986! mentions that stocks were probablyfully fished since 1978,

SANe ef stockslf knowledge on neritic squids has improved since the first revi+~

pf world resources potential by Gulland �971!, what is known o+oceanic squids outside the pacific remains very scanty even for 4bomajor Ommastrephidae. Very rough speculations Gulland, 1971! in4i-cated that potential of oceanic squids would reach "a few million to~but not so much as 100 million tons".

Jefferts �986! reported that the North Pacific ecosystem consumed2$0 million tons of squid per year, of which 5-50 million might beharvested. She speculated that the potential for Ommastrephids in th<North Pacific ecosystem only might be around $00,000 tons.

Dkutani �977! indicated a total potential of 380,000 for tonsOmmastrephes burtrami in the North pacific. Osako and Murata l9S3!postulated an MSY of 80-100,000 tons for the Northwest Pacific gx~of the resource exploited by the jigging fishery assuming that i4 Lsindependent from the Northeast Pacific part of the resource!. Jeffer~�986! mentions that the Northwest Pacific stock may have been fulbrfished since l978, Seamish and McFarlane �989! note that the totalestimated catch of this species in the North Pacific, of the order of300,000 tons, was close to the estimated total potential. The resourcemay therefore be fully exploited in the North Pacific.

Estimates of Potential Catches of Oceanic Squids

PACIFIC OCEAN:North Pacific:Ommastrephes bartramiO. borealijaponicaS ym plectoteuthis oualaniensisconatus borealis .....,....

.....,, . 380,000 tons............... 130,000 tons.........,..... 100,000 tons

..... 6,000 tons

Total Ommastrephids ..................... 500,000 tonsTotal Squids ........................ 5-50,000,000 tonsSouth Pacific:Dosidicus gigas California! ................ 300,000 tonsD. gi gas Total south!.................. 1-1,500,000 tons

201

Okutani �977! indicated also a total potential of 130,000 tons for0. borealijaponica for which a trawl fishery is developing, followingdecreased catch rates in the Ommastrephes fishery,

ln the Atlantic, the potential of Ommastrephes pteropus have beenestimated to 1,6-2,500,000 tons by Zuev et. al., �990!.

A potential of 100,000 tons have been speculated for Symplecto-teuthis oualaniensis in the Central Eastern Pacific Voss, 1973! whilepresent catches are of 3-4,000 tons. Zuev and Gutsal �990! refer toa 2 million ton biomass in the Indian Ocean and more particularly inthe Arabian Sea. Considering the fast growth and short lifespan ofthese animals the potential catch would be at least equal to thebiomass.

The potential of Dosidicus gigas in the Southwestern Pacific Ocean,from California to the southern tip of Latin America, is estimated at1-1.5 million tons, of which 300,000 tons is off Baja California Roperet al., 1984!.

An estimated 1-2 million tons of Mesonychoteuttus hamiltoni is saidto be available south of the Antarctic convergence in the SouthernOcean. Total world reserves is estimated at 90 million tons Klumovand Yukhov, 1975!.

Gona opsis borealis potential in the North Pacific was estimated at6,000 tons by Okutani �977!.

The table below summarizes the available estimates of potential:

time series available are not reliable indications of total removals fromthe sea and might at best be considered as minimal values, perhaps in-dicative of trends. Large quantities are discarded or unreported, es-pecially when landed as sharkfin and taken as by-catch of tuna long-line fisheries.

Total reported catches of identified sharks in FAO statistics haveincreased from 280,000 tons in 1970-! 974 to 358,000 tons. Forty-eightto 58 percent of the production is from the Atlantic, especially in theNorth; 23-33 percent is from the Pacific North, Central and South;12-21 percent is from the Indian Ocean, especially from the West.During the same period, the landings of unidentified elasmobrancheshas increased from 250,000 tons to 360,000 tons, part of which arecertainly sharks. On the U.S. Atlantic coast and Gulf of Mexico, esti-mated landings increased from 13,000 tons in 1965 to 27,000 tons in1980. This is largely due to increased recreational fisheries, up from2 to 59 percent during that period NMFS, 1985!.

Most of the reported catches of sharks are taken on the continentalshelf or at its edge! and around islands, but some species are trulyoceanic-pelagic and of more direct concern for this paper. Oceanicsharks are common in all oceans and may venture close inshore, mak-ing the distinction between "high seas" sharks and the others evenmore arbitrary than for other types of resources.

According to Compagno �984!, some of the most important speciesafe:

- Oceanic whitetip Carcharhinm Iongimanus! and silky shark C.jalci jormis!. Distributed from 20 degrees North to 20 degrees South,they are taken as by-catch of longline, purse seine and handlinefisheries. Litvinov �9&9! shows that C. jaIci jormis tends to replacePrionace gI mrna as a dominant species when passing from purelyoceanic areas to more neritic ones.

- Porbeagle L,amna casus!. This important species is present in coldtemperate waters in the northern and southern parts of the oceans.They are heavily exploited in the North Atlantic, the Mediterraneanand the Southern Indian Oceans. The European seas fisheries are welldocumented. North Atlantic catches increased since 1961 with the de-velopment of the Norwegian porbeagle fishery, and the Canadian andU.S. longline fisheries. They reached 11,000 tons in the mid-1960s andcollapsed subsequently. Norwegian catches decreased from &,000 tonsin l964 to 280 tons in 1968 as the stock itself collapsed NMFS, 1985;Compagno, l'988!. A porbeagle fishery in the Faeroes collapsed also inthe mid-1960s NMFS, 1985!.

203

The potential and state of most stocks are unknown. Most oceanicsharks listed above are viviparous or ovoviviparous with uterine can-nibalism except for the genus Carcharhinus and the filter-feeders!.They have a low fecundity. As a consequence they have a low resil-ience to fishing and present a high risk of recruitment over-fishing.Holden l 977!, on the basis of available case studies, raised doubts asto the sustainability of shark fisheries. The examples of collapse offisheries on the porbeagle in the North Atlantic, soupfin shark Gal-eorhiaus zyopterus! in California, the Scottish-Norwegian dogfish, andthe Australian school shark NMFS, 1985! clearly illustrate that risk.The apparently growing total catch in FAO statistics may thereforeconceal a multitude of local over-fishings, while catches continue toincrease due to redeployment of tuna and other fleets.

Gulland �971! indicates that the world potential of sharks "may beao more than a few hundred thousand tons, if as much." Comparisonof world catches with this guesstimate" to get some idea of the presentfishing, pressure is not very useful for many reasons. Firstly, statisticsare inaccurate. Secondly, the comparison would not detect the likelylocal depletion of the various species and populations and, without agood time series of catches, the ratio of catches to potential could notbe interpreted in particular, low ratios could indicate under-fishingas well as depletion!.

Considering the importance of the shark in the oceanic ecosystem,the lack of interest of the scientific community and of regionalfisheries bodies for these species should be a matter of concern.

Antarctic Resources

The resosu cpsFor the purpose of this paper, Antarctic resources will be consid-

ered as high seas resources, regardless of the status they may acquirein the future. These resources comprise kriss, cephalopods, a few fishfamilies, whales cf. section 2! and seals not covered by this paper!.

According to Sarhage �989!, there are five species of Euphausia inthe southern ocean and one species of Thysanoessa. Of these,Euphausia superba is the largest and most abundant and is usuallyconsidered synonymous with the term "krill". Distribution of kriH isalmost entirely restricted to the ~aters south of the Antarctic PolarFront The Antarctic Convergence! around the southern continent.The stock structure is not yet elucidated.

Cephalopods are not exploited although many species are present inthe area and preyed upon, e.g., by sperm whales, elephant seals and

some birds, Catches in Qe SouQern Oceans are given in Table ~ busjt is likely that they come from areas situated north of the Antnrc~COnvergence where biOmes SeemS to be larger. The main SpeCieS SSNoaeatarus sloani Everson, 1977!.

The fish resource b dominated by the five families of NototheNs=formes which make up three-quarters of the fish species in the ~'~Of these only two endemic families are of commercial importance' ,theNod<he�ildae Atlantic Cod! with nine species and the Cham'~@>P'~due Ice Fish! with five species. There are three species of Rais ~one of hake the patagonian hake Merluccim hubbsi!. There are f6~pehgic species in the Southern Ocean apart from Myctophidm. theNotorheniidae Pleuta8rammcr antarcgimm Antarctic silverfish! nNDissostichus spp. Antarctic and patagonian toothfish! and the g~ohficrOntesisiius agstra is KverSon, 1977!. Both Mic'romnisAuS aN~hferluccius, whose potentials have been estimated at 800 M0200-1,800,000 tons respectively Everson, 1977!, are considered sssmigrants from the Patagonian shelf and will not be considered furzehere,

77hz jiaber$esTheae reSOurCeS have attraCted sealerS, whalers and fishermeN fOI'

some two centuries, despite the limited overall productivity, becauleSOme Of these reSOurCeS are COnveniently aggregated Seal colONieS.hrge whales, swarms of krill etc.!, The mammals are highly susceP>-ble tO depletiOn. Kriil iS very abundant many hundred milliON tONS!but iS the foundatian Of the fOOd Chain. The history Of the explOitntiOIof the Antarctic ecosystem is one of a long series of successive dePle-tions of resource types, one after the other. The sequence started ~'tlatfur SealS and elephant Seals at the end of the 1800s and early 19INS-The South Shetland Islands colonies were exterminated in about <>efiShing SeaSOn Gulland, 1988!. EversOn �977! indicates that the A.Nt-arctiC fur Seal hrctoCephalus trppicali S! COlOnies were rapidly and Sys-tematiCally depleted, One after the Other, leading eventually tO the COl-lapse of the industry. The stock has now rebuilt now to about a millionindividuah, probably close to its original state Gulland, 1988! W Ihthe development of harpoon gun, pehgic whaling developed in theAntarCtiC, originally On blue whaleS. The depletion Of theSe StOCkl sSdescribed in section 2.

Exploratory fishing for krill began in 1961- l 962 USSR! but Iarge-scale fishing started only in 1976-1977 as a result of the closure oftraditional fishing grounds of long range fleets by newly estaMish~EKZs. Japan developed a small successful fishery �0,000 tons MI'

year! mostly in the Indian Ocean Gulland, 1988!. Information onfishing effort is still scarce. Catches increased from 4,000 tons in1970-1974 to 360-470,000 tons in the late 1980s Tabte I!, with fluc-tuations apparently due to processing and utilization problems.

The catch data available in FAO are given in Table . At present itseems unlikely that the krill fishery will soon develop into the severalmillion tons originally expected, but the fishing effort is potentiallyavailable and could be activated especially with growing human pop-ulations and demand for food from the sea! if processing and market-ing difficulties could be reduced.

The history of exploitation of fish resources, here too, is one ofpulse-fishing and of continuous shifts from over-fished stocks to newones. The main resources are in the Southwest Atlantic and around theKerguelen Islands. Heavy exploitation reduced the stocks in bothareas. The Antarctic cod Notothenia ross'!, in South Georgia, forinstance, was exhausted in two fishing seasons �969/1970 and1970/1971! with unsustainable catches of 400-500,000 tons. A fewyears later 350,000 tons of ice fish Champsocephalus gunnari! wereextracted in one season �977/1978! from the same area. In 1979, anEKZ was established around Kerguelen and, af ter two years of f ishingban, fishing was resumed at a level allowing recovery of depletedstocks Gulland, 1988; Beddington, 1989!. The Southwest Atlantic areais managed by CCAMLR and the Commission's objectives are to re-build the Antarctic cod stocks as soon as possible, but the presentmortality is considered very high and fishing should be stopped FAO,1989!.

Statm of stocksThe fish resources are limited and their productivity is too small to

enable sustainably high catches. In his exhaustive review, Kverson�977! noted the absence of information suitable for assessments andmanagement of the Southern Ocean fish resources. For South Georgiaand Kerguelen areas he gives a total fish potential of 77-90,000 tons hakes and whiting excluded! and he also notes that catches and catchrates have been declining very rapidly in South Georgia.

Estimates of standing crop of krill vary from some tens of millionsof tons to 1,350 million tons or more. Estimates are difficult due to thevery patchy nature of the resource. Potential annual production hasbeen tentatively estimated, either indirectly, from primary productivi-ty figures or assumed consumption by predators, or directly, from de-mographic analysis. The results are of limited reliability and rangefrom 100-700 million tons per year Sarhage, 1989!.

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Kr1 !s a major food item for baleen whales, crab-eater and f~seals, several species of penguins and other birds, as well as f@squid, Its intensive exploitation may therefore have dam~ging r p.cussions on other resources at higher levels in the food chain <!acatches of ten tons per hour are not difficult to obtain.

Concern has already been expressed about intensive "krilling" "cause of the central role of krill as food for whales, seals a»d bi~-8ecause the annual net production of krill is low compared to ~avaBable biomass, the resource could be very vulnerable to ave<-fishing. Sahrhage �989! mentions the need for precauti<~measures. This need becomes obvious when considering the preseNtdegree of depletion of the other, more economically viable, resource~~of the Antarctic, and the failure of their international managemen4-

Regarding management, Everson �977! notes that, although 44+areas north of 60 degrees North are theoretically under the responss-bility of the relevant regional fisheries commissions, there iseffective management policy in any of these commissions regardissIA»tarctic resources.

The concept of ecosystem management was introduced in CCAMLKby»ations with no fishing interests in the Antarctic. The agreed co~promise and phraseology are unique to this fishery body. It is ~-fortunate that all the other properties that this body shares w>th >++fisheries bodies have led to the same result: unsustainable develop+ +~and over-fishing. The krill, the original source of concern, is the +~Xplentiful resource left, because its exploitation is not economicaIl

In co»sidering the failure to achieve sustainability in the Antic>~.one could argue that in focussing attention on the biological problem~of interactions between species as in the North Sea! the CCANO-RaNy divert attention from the primary issue: the interaction betvv'~+~me» and the valuable but fragile natural renewable resources. L~++<-ably, and in line with past experience in most international bod<++ and many national management systems!, agreement on managementcould not be reached even in the mid-1980s!! on the drastic measuresto control effort proposed by the scientists. Agreement was reaehM.instead, on traditionally inefficient measures with no distribut>ossssIproperties mesh sizes, legal fish sizes, closed areas!, which were inef-fective in limiti»g wasteful competition and avoiding over-fishInS-

Ocea»lc Horse Mackerel

The rnaercts

Horse mackerels are an important pelagic resource. They have P~-vided one of the largest catch increases in the last three decades fram

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I.S-5.2 million tons!. Increases in Athntic catches in the mid-1970sresulted from fishing by European distant water fleets off the north-west and southwest coast of Africa and in the Southern Hemisphere.Most catches were taken on continental shelves and slopes, until thedevelopment of the South Pacific fishery in the hte 1970s.

Most species of horse mackerels are distributed on continentalshelves and upper slopes. Some species, however, extend far offshore.The nomenclature of these oceanic horse mackerels is not yet clear.Pending further analysis, we shall consider here, with Parrish �989!,that they consist of one super-species Trachurus picjuratus spp.! ~iththree sub-species: T. p. picturatus in the North and Central Atlantic,T. p. symmejricus in the North Pacific, and T. p. murphyi in the SouthPacific. The recent increase in world catches of horse mackerels comesfrom the latter species.

Oceanic horse mackerels are abundant in eastern boundary currentsin the Northeast and Southeast Atlantic and Pacific, as well as in theSouthern Indian Ocean. Their important seasonal migrations along theshore, at the edge of the shelf, are fairly well known and followed bylong-range fleets. The knowledge of distribution and potential migra-tion to the open ocean is much more conjectural. The species venturesfarther offshore to islands and sea mounts than the other Trachurusspecies. In the Canary current area off West Africa, for instance, itrnigrates between the coast of the Sahara and offshore sea-mounts andpossibly as far as the Canary and Cape Verde Islands Garcia, 1982!.

In the Southwest Pacific, the Chilean jack mackerel Trachutus pic-ttu'atus ~ur phyi! spawns across the ocean, from New Zealand to Chile.It seems to be able to complete its whole life cycle in the South PacificConvergence, independent of the neritic zone Bayley, 1989!. Thestock structure and potential subdivision into sub-species is still beingargued Parrish, l989!. On the Latin American coast, the species isfound essentially off Peru and Chile between 1 degree 30 minutesNorth and 58 degrees South, and can extend its distribution furthernorth during the anomalous climatic condition, Kl Nirio!. Its distribu-tion may extend as far as 900 miles offshore according to larval distri-bution, covering an area of 500,000 square miles Mathisen andTsukayama, 1986!.

In the Northwest Pacific the jack mackerel T. picturatus syerme-tricus! exists all along the North American coast and is known to existfar of f shore.

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Fke fisheriesOver the last two decades this species has provided one of the

largest increases in world fish catch from about 170,000 tons i+1970-1974 to more than 3 million tons in 1988! Table !.

The Southwest Pacific fishery for the Chilean jack mackerel Trachurus picjuragus murphyi! developed in Chile and Peru after ~eaachoveta collapse, favored by an increase of the area covered by thestock and its biomass Tsukayazna and Santander, 1987!. At the end ofthe seventies, the USSR was looking for new grounds outside of KEZs-A fishery yielding 500-600,000 tons per year was developed, firstalong and outside the EEZs of Peru and Chile. After 1985 the fisheryextended westward along the west wind drift between 39-45 degroesSouth and as far offshore as 80-120 degrees West and possibly beyond,with seasonal shifts following the oscillation of the South Pacificsubtropical convergence Parrish, 1989!.

There is a coastal fishery for Trachurus picturaCus symme«i~us «California US.! and it is also taken off Mexico. It is also a by catchof the North American salmon troll fishery, but it is discarded at ~.It is also exploited by long range foreign trawl fleets targeting tbePacific whiting MacCall et al., 1980!. Landings have varied greatIYbetween }0 and 73,000 tons since the 1940s, in relation to the status +fthe sardine fishery. They decreased from an average of 28,000 tons i>1975-1979 to about 10,000 tons in the late 1980s. The stock is kno~>to range far offshore, beyond the 200 miles of the U.S. and Camda-

S jade@ of stocksTotal mortality of T. p. murphy, estimated from catch curves i+

Peru and Chile, range from 0.57-0.90, a fairly high value for su<>long-lived animals �0-15 years!. In 1983, exploitation rates calculatedfrom the ratio between catches and acoustic biomass 8.9 million tons!in the EEZ of Peru and Chile were around 16-25 percent, indicatingheavy exploitation at least locally!, These values should be use withcaution, since the data used did not cover the whole resource and allthe removals Mathisen and Tsukayama, 1986!. The status of the wha>estock of the South Pacific is not known.

Spawning population biomass of T. p. symme«ious was estimated tobe at least 1.$ million tons MacCali el al., 1980!. The potential is netknown with precision and may be between 50 and 290,000 short t>ns-

Nothing is known about the potential and status of the West Afri~stocks of T. pic1uratus. They are probably subject to highly fluctuatingfishing intensities in relation to interannual changes of relative abun-dance of other pelagic target species Trachurus «achurus, T, «ecae.

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Sardina pilchardus, and Scomber japonicus! and consequent changesin fishing strategies of long range fleets from Eastern Europe.

Mesopelaglc Fish

Most of what follows has been taken from Gjosaeter and Kawa-guchi �980!, unless otherwise quoted. These resources exist nearlyeverywhere between the 200 and 1,000 meter depth, from the Arcticto the Antarctic, but annual production is highest in the sub-tropicaland tropical area.

They are difficult to sample. Their distribution is variable,matching the distribution of nutrients, primary production andzooplankton reasonably well {Gulland, 1971!. There are more than 75important genera. Major families are Myctophidae Benthoserna spp.,Myelophum spp., Diaphus spp., Lampanyctus spp. etc.! and Gonosto-matidae Cyclothone spp., Gonostoma gracile, Maurolicus muelleri!.Other families include Sterno' ychidae, Chiasmodontidae, Trichiuri-dae, Norns dae, Paralepididae, Gear pylidae.

These animals constitute the major part of the oceanic biomass.There is no doubt that the potential resources of small mesopelagicspecies are very large. Total world biomass is about 1,000 million tons,concentrated along continental shelves. Densities in the high seas arevery low less than 10 g/sq.m.!. In the sub-arctic area a stock of 31million tons has been estimated. All these estimates must be treatedvery carefully, but they point to a theoretical world potential of 500million to 1,000 million tons or more.

They are exploited as by-catch of the purse seine anchovy fisheryoff South Africa Larnpanyctodes hectoris! and by the USSR off WestAfrica to produce fish meal and oil silage. Identified catches wereover 15,000 tons in 1970-1974. After a significant decrease in the late1970s and early l980s to 3-5,000 tons! they reached a maximum of3 l,000 tons in 1985 and dropped to nearly zero in 1987-1988. Catchesof myctophids in the Southern Ocean have increased drastically fromzero in the late 1970s to 15,000 tons in l988.

The immediate likelihood of widespread intensification of directedexploitation of these animals is very low. The market is unattractiveand probably limited to fish meal. The technology still is not adequate.The difficulties inherent in exploiting krill are relevant for this re-source too. Although the potential harvest is undoubtedly large, it isdoubtful that their economic exploitation will ever be feasible or re-

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commended, considering their key role as food for oceanic specie mammals, tunas etc.!.

Marine Turtles

Catch statLstics for turtles are probably very poor. Reported c t hhave deere~~ from 5 496 tons in 1970-1974 to 2 658 tons ln 1988a ter Peaking af 7,400 tons in 1975-1980 Table l!. Populatioture is not known with any precision Ma y spec,-endangered- They are gathered either by hand when b ach'accidentally caught in trammel nets, traps, trawls and even tubalf sh longi'nes. Measures of abundance are problematic. Po

menh practically nonexistent. Catch statistics are dubioegg catches are not rePorted anyway. The world catalogue of t N

<ue ~ 1~! "o s that four species have a de finite oceanic hseas! character. These are:

The loggerhead Caretta caretta! probably undertake long migratigMfollowing warm currents Gulf stream, Kuroshio, California currents!.It has been sighted in the open seas, but little is known about its highseas distribution. Important nesting areas are known in all oceans, Bis commonly exploited for its meat, leather, fat and eggs illegally!,Total reported catches decreased from 480 tons in 1970-1974 to 185tons in 1988, exclusively in the Central Atlantic Table l!. In receatyears, 32,000 were killed off the U.S. Atlantic coast, and 10,500 in theGulf of Mexico. Accidental kill by blasting of an old petroleum plat-form has been reported.

The green turtle Chelonia mydas! can migrate from rookeries tofeeding grounds a thousand kilometers away. Some populations e.g�from Ascension Islands! migrate 2,000 km across the ocean and havedemonstrated homing behavior. They are caught in a large number 0<gears and by hand, essentially for meat. Egg-poaching is pervasiv~.Reported catches have decreased from 400-500 tons in the 1970s to300-350 tons in the late 1980s Table I!. The species is conside~endangered and is listed in CITES. International commerce has beeIbanned since the late 1970s but local "subsistence fisheries persist i~many areas around the world.

The hawksbill Erethrnochelys i~rpz~p! is the most tropical of ailmarine turtles. Part of the population may not be migratory. I-itt'~data are available on potential transoceanic migrations, although thesare suspected among island. groups in Qceania. The species is explo»<

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fpr its "shell", meat and eggs. It is, however, listed in the IUCN RedData Book. With the CITES restrictions, exports have decreased sub-stantially since 1979. The total importation of carey scutes worketortoise shell! in Japan was 25 and 29 tons in 1987 and 1988, respec-tively. Japan's worldwide trade in tortoise shell from 197Q-1986represents the equivalent of 600,000 adults Ogren, 1989 p. IQ8!.Reported catches have oscillated between 240 and 37Q fons Tgg!Q g!but are probably not accurate. Nesting aggregations are rare.

The leatherback Dermochelys coriaeea! is adapted to colder waters.t has a broad distribution, nesting in tropical and subtropical areas.

Adults range from 40 degrees South to 60 degrees North. There is noevidence that the overall range of distribution has been affected.Upward trends in nest abundance have been observed in the westernAt]antic Ogren, l989 p. 149! but the interpretation is not clear. It isaccidentally caught in driftnets and longlines, and is still consideredan endangered species throughout its range. It is listed in Annex 1 ofCITES. The species has been hit particularly hard in Southeast Asiaand its future looks bleak in the Western Atlantic Ogren, 1989, p.151-152!. There are no identified catches reported for that speciesalthough it is certainly caught throughout its range.

Efforts are being made e.g., in the Gulf of Mexico and Indonesia!tp reduce incidental mortality of turtles in shrimp trawl fisheriesthrough the use of Turtle Excluder Devices TED!, allowing selectiveescapement of turtles accidentally entering trawls.

Other Oceanic Resources

A large number of other species exist in the high seas, the impor-tance of which is often unknown and sometimes underrated. Thesespecies may be targeted, taken as by-catch in other fisheries, or notcaught at the moment.

The Alaska Pollack Theragra chakogramma! is widely distributedin the North Pacific. Its stock structure is not clear. There may betwelve stocks in the Western Pacific region Chikuni, 1985!. The fishis pelagic or semi-pelagic in its five first years of life and develops asa demersal resource when it matures sexually. Total catches have in-creased steadily in the North Pacific from 300,000 tons in the 1950sto about 4 million tons in the early 1970s, and 6.7 million tons in thelate 1980s Table 1!. These are the highest catches for a single speciesin the North Pacific except, recently, for sardines!. The resource hasbeen considered fully fished, globally, but information on Soviet and<orean stocks is scanty Chikuni, 1985!. The condition of the North-

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The sunf ish or headfish of the family Molidae are strange represen-tatives of the oceanic fauna about which we know very little. Threespecies only exist throughout the world. It is taken as by-catch ingillnet fisheries and consumed, at least in the Mediterranean.

The Gempylidae family include the snake mackerel Gempylus ser-pens!, the Escolar Lepidocybium f avobrunneum! and the oilfish Ru-vettus pretiosus!. They are all part of the regular by-catch of the tunalongline rs.

The lancetfish AIepisaurus ferox and A. brevirostris! are commonlycaught on tuna longlines. Up to 2 m. in length they are not very muchappreciated.

The flying fish Kxocoetidae! is a potentially very important group,especially for island countries. There seem to be eight genera.Important ones are: Exocoetus, Cypselurus, Hirundichthys, Cheilo-pog0n, and Prognichthys. Total reported landings have varied between60 and 90,000 tons in the last two decades with no clear trend. About70 percent come from the Pacific, 20 percent from the Indian Oceanand 10 percent from the Atlantic. Mahon �990! reports 4-5,000 tonsfor Eastern Caribbean islands, essentiaBy Hi rundi chthys. The potentialis unknown. Suda �973! indicates that the potential world catch couldbe around 100,000 tons in the coastal areas plus an unknown potentialfor the oceanic areas. If this statement is correct, then coastal resourc-es would now be close to full exploitation. No progress has been made to my knowledge! in assessing the oceanic potential.

The dolphin fish Cor yphaena hippurus and C. equiselis! is distrib-uted widely in all oceanic waters, close to shore in islands and fartheroffshore off continental masses, beyond the area of influence of waterrunoff. They are caught by tuna troll lines, and occasionally by purseseines and driftnets. Fishing is developing with the widespread use offish aggregating devices FADs!. Gulland �971! indicates, on verylimited data, that the world potential might be around one milliontons. Only C. hi ppurus catches are reported to FAO, probably due toinaccurate determination of the species composition of the landings.Total reported landings Table I! increased from about 19,000 tons in1970-1974 to 23,000 tons in 1975-1980 and 30-37,000 tons in 1988.Most catches are from the North Pacific �0-70 percent!.

Conclusions aad Nscussiou

Staff o j stocksMost baleen whales and sperm whales are heavily over-fished or

depleted, with some rare exceptions. Some species may be beyond re-

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riate an otherwise open access resource the open ocean productivity!by intensifying their ranching industry. When will the system be sat-urated at the present rate of expansion? What would be the effect oaother competing resources squids, pomfrets etc.! and predators seals,sharks etc.!? What will be the effect of offshore competitioa betweenwild and cultured strains? Will there be a aced for an agreementbetween the states coacerned on numbers of fiagerlings to be releasedto avoid economic waste?

Oceanic squids offer obvious potential for development Caddy,1989! on aew species and areas while the main species already targetedare fully fished. With the present conflicts about driftaetting possibili-ties to develop commercial fisheries are limited but not nonexistent.The oceanic sharks may offer more potential for concern than for sus-tainable development. Research on these species is badly needed. Theoceanic horse mackerel appears heavily fished locally. Its future isobscured by the lack of an international mechanism for its manage-ment and cooperation in research. Coastal countries are presentlyexpressing their concerns,

In the Antarctic, depletion of commercial species is serious andmanagement performance not yet impressive. Krill is the exception,saved probably by the difficulty to use it profitably.

Demersal resources extending on high seas shelves are fully fishedif not over-fished. Progress in net-making technology should facilitateintensification of the exploitation by island countries of non-con-ventional large pelagic species, such as dolphin fish, flying fish, aswell as large tuna-like species presently assumed to be underexploited,with unknown potential. However, problems of accidental capture oflow resilience and ecologically sensitive species could emerge, as in thelarge scale driftnet fisheries.

Research seedsSome major achievement of fishery management bodies are the col-

lection of information, the promotion of assessment techniques and thedevelopment of scientific collaboration or polarization as in IWC!. Itis a bitter fact that scientific knowledge of marine resources dependslargely oa short term economic interest. It apparently can grow onlywith, and unfortunately more slowly than, these interests. Better re-search is needed to improve fisheries sustainablity. Priorities for re-search are region and fisheries specific but some general issues can bementioned.

The recent Study of International Fisheries Research Needs Troa-dec and Christy, ia preparation! undertaken jointly by the WorldBank, UNDP, EEC, FAO and many other donors, stresses the problem

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relative terms was designed to avoid the situation in which fisheriescontinue unregulated with the pretext of incomplete information. Theeffect of this provision is that scientific information, including accur-ate and detailed fishery data, has become of strategic importance, withvery significant potential economic consequences. A consequence hascertainly been the development of scientific fora, mechanisms andmethodology and the establishment of common databases. It has un-fortunately also increased the value of the data and the incentive toretain and distort it. Even when available in a timely manner, scien-tific information has often been neglected, leading to "too little, toolate " management Gulland, 1984; Garcia, 1990!.

The actual influence of research on success or failure of interna-tional fishery management is far from clear. There is enough evidencethat high quality management-oriented biological research does notautomatically lead to optimal management Garcia, 1990!. The con-flicts in IATTC, a center of indisputable scientific excellence, showsthat good science is necessary but not sufficient to ensure consensus.According to Gulland l988!, the lack of appropriate research in INChas been a major factor in the lack of timely management. Withoutunderestimating the importance of the scientific advice given by theIWC Scientific Committee and FAO experts, one may note, however,that whaling nations remained little affected by this advice until theycould no longer catch their quotas. It is also obvious that bilateral dip-lomacy and power politics are largely responsible for the recent posi-tive developments Andresen, 1989!. One may also note that, today, inIWC, the various interest groups seem to be using "their' respectivescientists and the uncertainty inherent in the data to back up theirrespective opposing claims.

A phenomenon of particular importance for high seas fisheries re-search and management, when considering the issue of uncertainty, isthe present attempt to revert the burden of proof by requiring a de-monstration that the potential effects of planned increased catches areacceptable, before such increases are allowed!. This precautionaryprinciple might offer protection against over-fishing, but could resultin development paralysis if broadly applied to aH development-relatedenvironmental considerations. It could also result in a shift in theapplication of scientific information to management and probably ina change in methodology. It might require increased funding from in-dustry, in particular, but only for making use of opportunities for sus-tainable development of high seas fisheries.

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kfaeagemcet needsThe relative failure of international management to establish

sustainable fisheries in many areas, despite the high quality of the'research sometimes provided, is clearly demonstrated by the dwindlingresource base, excessive catching capacity, uncontrolled transfers o<fishing effort between resources and oceans, depletion of many highlYvaluable resources, including those in the Antarctic, and Possibl~beyond recovery for some whales. The fact that uncontrolled develoP-ment of fishing effort leads to disaster has now been widely acknowledged in the scientific literature and by high level fisheries rnanage-ment and development authorities. This is demonstrated by the dis-cussions and agreements in the two World Conferences on Mana8~-ment and Development of fisheries in Vancouver Stevenson, 1973!and Rome FAO, l984!. In day-to-day practice, however, this verbalrocognition does not always seem to translate into substance, and th+future of high seas resources must therefore be considered carefully-

It is clear that, for at least a century, fishing nations have beeNcompeting for a limited whale resource following implicitly an indust-rial development model. In such a model, natural resource limitatiotll'are secondary or irrelevant and emphasis is put on technological ad-VanCeS, ShOrt term aCCOunting and annual produCtion targetS iS terrrLIof commodities such as oil, meat, etc. Detailed data on resource po-tential and conditions for long-term sustainability, by species opopulations, were therefore not needed Garcia and Ne~ton, 1990!-These needs arose only when the limits of the resource mosaic thearray of populations and species! had been met and when open co~-Aict started with non-fishery users.

From the point of view of FAQ, the main issue in high seas fisherdies, as in any other fishery, is sustainability. This concept imp»es thatresources can be reduced by fishing to some agreed average leve4which its existence reproductive capacity! is not threatened- A parti-cular problem concerns non-target species, sometimes fragile or al-ready endangered, which could be inadvertently threatened by inci-dental capture while "optimizing" the use of a target species. It is im-possible to extract living resources from the marine ecosystem withots~affecting it. There is some trade-off between the intensity of fishia8and the degree of resource conservation. The difficulty is that it IIdifficult to forecast and attach a value to the potential damage to th~pristine populations resulting from planned development.

In theory, such an assoc!ment might require involvement of' botanyfiShery and non-fiShery uaerS Of the reSOurceS tO take into account aHtypes of costs and benefits. This, in turn, would imply the existencCof fora or mechanisms through which both types of users can interacL

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Experience shows that efficient management of natural renewableresources requires an explicit allocation of user rights and responsi-bilities, even though this is not sufficient, in itself, to ensure sustain-ability. Experience also shows that such user rights can only be de-fined and controlled within an adequate institutional framework. TheNew Law of the Sea has gone a long way towards allocating rights andresponsibilities in KEZs, but the present state of high seas resourcesshows that they still must be dealt with efficiently. The particularproblem of straddling stocks has been discussed very often and is stilla subject of debate and conflict Miles and Burke, 1989!. Some inter-national resources are not properly covered by international mecha-nisms required by the law of the sea. This is the case, for instance, inthe Pacific, where the responsibilities regarding interacting fisheriesare scattered among different arrangements, or simply not allocated.This impedes efficient consideration of the problems of interactionsand of foreign fleet transfers at the regional level. The latter problemwouM also require some coordination between regional mechanismsbecause massive effort transfers between regions and oceans are hardto forecast and monitor. They are potentially problematic. They arealready happening, especially in tuna, billfish, and shark fisheries,between the Atlantic and the Indian Ocean, between the Eastern andSouth Pacific, and between the North and South Pacific. Suggestionshave been made to establish a worldwide tuna management body Joseph, 1990!.

Another institutional problem is the possible need for a new whal-ing convention, with new objectives and a new definition of thespecies covered, explicitly to include small cetaceans.

Finally, the large scale pelagic driftnet fisheries in the high seas,their potential threat to oceanic resources and the challenge they re-present for international collaboration in fisheries and research are agood example of high seas management problems. This gear is used forsalmon, flying squid, tuna and sailfish in the Pacific high seas andprobably also in the Indian Ocean. According to Kisenbud �985! therewere close to 1,700 vessels in the Pacific, setting at least 20,500 milesof net per night. Although the scientific information available on act-ual numbers of non-targeted species caught and the impact on ecosys-tem sustainability is very limited, growing concern has been expressed.Recent meetings of FAO fishery bodies have shown that driftnets ofsignificant length greater than 2.5 km! are being used in many areasof the developing world where their ban would have serious economicconsequences.

221

Deistic measures have been taken or are foreseen e.g., ban of dM'gear on a regional level! on the basis that thousands of small cetac~and hundredS Of thOusands Of Sea birdS might be killed every yeM.that American Pacific salmon were being intercepted, that juvenileNorth Pacific albacore tunas were being caught, that safety of navi¹Mn was threatened and that resources might be depleted, especiSByiS PSCifiC iSland COuntrieS. EnvirOnmental iSSueS inClude the pOten~risk, albeit hardly documented, of "ghost fishing" and entanglement inlost or abandoned pieces of gear, and the protection of non-target sPe-

FAO, l990!. Economic issues, such as competition between exit-ing and new fisheries for resource and market shares, are rarely mea-Wned but are Certainly nOt abSent Rigney, l990!.

lt iS a SOurce Of CONCern that most high seas resourceS under inter-natiOnal management Suffer from excessive effort and depletiOn. K~ ISimportant to note that improvement pf fhe state of the resources hasOften been Obtained, nOt thrOugh traditional internatiOnal fiSherymlLMgement, but through either establishment of EEZs althoughmany EEZ resources are also over-fished! or through intervention afNon"fishery user interests e.g., whales, dolphins!. UNCLOS seems toprovide a broad, useful, framework, but it appears that fishing prac-

need to be agreed upon, perhaps through the elaboration of acode of practice for the high seas, shared stocks, straddling stocks ~dfor some endangered species in the EEZs.

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225

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227

0

Ca

R

H

M tP~ ~

CP

rv Ch

CL

CPC$

COOP~ ~

C!

cA~ ~

O

f

f II.

~4

C 0

CO

.U

CFV!

Oyg

CUCJ

O

N 4 1 0 0P

CL~ VE,me

0405

!~O

~ eRR

8

4O

R

Pi0

a

0 0A C0

~

4 0 CO

5

8J/

l f

e

Ca

g 41CL g 1

4 0 U0 4

Vl

CP

~ CO

X .~~ em&

tO

0 QCl l4e a

C

C

V da o

IK

a0

e 4V

0 V y S

ch

Ch

cL

f

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I

!

8'8CJ

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e4 O

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C!

TAQI E 1

Repartee catch Stat 1 st.1cs of seLected speC',es Source: FAG cata Case!

1958920-c4»ft I uu 97c-79 1985 i 985 1987

Catches in Thousand Tons5a l .

, 5 ~ .36' 2 3

1C3.7508.4

34.5594.'

57.»771,9

90. 2549. B

74'. 0

445.7

15 9450

At,e '. cPact ' C <85

'99 5 466. 3 5c8.5 71?u?839.3Tote'L

;91,5352.4120. 7 375.»Kr~ lL

uuuul'I'I ucA'.aska Pollack 4 C75.8 4 451.9 4 704.0 5 132.3 5 758.9 5 723-9

~5 uids <Total!"mostrephidae

1 150.04GC.P

'131,5

745.3455.9

'48.7

1 ?35 1 1 813 4253.0 456.4

30' 0309. 3

907. 14»4.?

142. 1 134.92Sharks Total!

'.30.7138. 5

~5aur283.4 334.3 235.2 273.8 251.0 227.3 347.GPacific

Atl,antic

Horse KACkrrels

775.6 1 845.5 2 148.8 1 950.9 2 681.8 3 245-7173. 1

19.0 10.0 12.0 12.0 aG.Q19. 0 28.0

1 536.9 2 345.6 3 319.9 3 585 ' 1 3 553-9 4 498.5 5 ZG1. 5

Pomfrets

0.2 3.9

36.8 53.8

Srama brama

Tot~ pomf~ets

7.5 8,65,7 8.9

116.8 127.9 «5.e

29.2

92.1 139.9

i8.6 23.3 22.7 37.024.0 22.6

inhales catchesin numbers!

CatCheS in Nuo1berS

0 24085

5 875317'1 91

101

1414

927400

6838

6 344204

6 510202

1 26?

26 269

316 24 164 75 244 147 929 130 639 128 679

18 463 31 806 81

634 89782 4

131 492

132 175-2 658

994 153 137 134 947

To'ta i, cetaceans 47 544 33 415 43<crine turtles 5 495 7 412 4

Including other un1dentified c ~ tchee,

921 159 549381 3 B03

141 2912 928

236

T. ~icturat s~mur h

T. ptctvrat u~ulhlhutf ul ~

Total horsemaCkere L S

SlurHumpbackSeiFintf1 nkeSrycfr 'sBa Lren n.r. i.

Tot ~ I. 8 ~ leen-1/

Sperm vhalraToothed Whales

n.e.i.Total toothed

uha es

317

8 6233 7327 868

848184

21 27522 115

018

945833574 10376206

952 11000

01593

359536 7639186

828 7033

0 838

219124357181

0 22089

5 736317180

754. 5

369 7

5 657.7

1 73'. >379.1

14.7. 5

0 21077

421G

173

HIGH SEAS: DRIFT GILLNETS, HIGHLYMIGRATORY SFECIES, AND MARINE MAMMALS

I.A. ShearerUniversity of New South %ales

Sydney, Australia

Introduction

The categories of national jurisdiction are not closed. Nor is thepossibility of organized control of the high seas through interna-tional agencies. To the legally creative power of States there is nolimit, and in any epoch the preponderance of regimentation may lieeither with individual States or with the community of States. This,of course, does not resolve the question of the extent of the freedomof the seas, or the limitations upon it it merely serves as a method-ology for dealing with the question.'

There is no single theory of the juridical nature of the high seascommanding universal intellectual or pragmatic assent. For Grotius,the high seas could be termed res nullius, res communis or res publica,indifferently, although each term had different roots and held diver-gent implications,' ln more recent times Gidel, in his theory of "juri-dicity,"'and McDougal and Burke, in their theory of reasonable use,'approached the question from the point of view of reconciling com-peting uses and emphasized the roles of' both multilateral and nationalmeasures. Most recently of all, the Food and Agriculture Organizationof the United Nations, FAO! noting that the Third UN Conferenceon the Law of the Sea had produced a framework for cooperation, butnot a regime for the conservation and management of fisheries beyond

D.P. O'Cannoli, Ths!ntanttttontti Law of the See Oxford, Clarendon Press, 1984!, Vol.IK, 798.

Ibid., T9s.

Q.C. Gidel, Lc'Drot't t'etrrtuuionaf puMic de kt tner Paris, Chateauroux, 19S'R-SE!, Vol.I, $18.

M.s. htcDougal and w.T. BurEe, Thc Pubhic CMcr of the &cams New Haven, YaleUniversity Press, l962! 'N9.

237

national jurisdiction, called for further analysis and elaboration oflegal principles governing high seas fisheries.'

This paper will survey and analyze developments in internationalcooperation since the conclusion of UNCLOS III in 1982 affecting theuse of drift gillnets on the high seas, highly migratory species, andmarine mammals, with special reference to the Pacific Ocean.

The UN Coaveatloa oa the Lavr of the Sea, 1982 LOSC!

Part VII of the Convention confirms fishing as one of the freedomsof the high seas LOSC, Art. 87�! e!! subject to the conditions laiddown in Section 2 of that Part Arts. 116-120! and to the obligation tohave "due regard for the interests of other States in their exercise ofthe freedom of the high seas." Art. 87�!, and Geneva Convention onthe High Seas, 19SS, Art. 2.!

Article 116 of the Convention makes the exercise of a State' snationals' freedom to fish on the high seas conditional in threerespects. The first is that such freedom is subject to a State's treatyobligations, This condition might at first be thought superfluous sincetreaties contemplated as a result of cooperation with other interestedStates are referred to later in the articles. This condition must,however, be read in the light of Article 311, which asserts the superiorforce of the LOSC, l982 over other incompatible agreements, whetherearlier or later in time, and over agreements to derogate from LOSCthat are contrary to its object and purpose or affect the applicatios ofits basic principles.

The second condition is that the freedom to fish on the high seas issubject to "the rights and duties as well as the interests of coastal Statesprovided for, inter alia," in the articles of Part V on the exclusiveeconomic zone! dealing with the sea or related stocks occurring bothwithin a State's EEZ and in the adjacent area of the high seas Art.63�!!, highly migratory species Art, 64!, marine mammals Art. 65!,anadromous stocks Art. 66! and catadromous species Art. 67!, Thiscondition embraces elements of new and old law. The question ofstraddling stocks was dealt with in a similar way in the Geneva Con-vention on Fishing and Conservation of the Living Resources of theHigh Seas, l958' where it was provided that the States fishing such

FAO, Rcport of chic &pet CocLcccltaccan cnc Largt $cok Pshaw ~Pret Fishing, FAOFieherlea Report No. 4s4, FlpL/R 4S4, Rome, 0-8 April 1990, paraa. 112, 1%8.

550 VNTS 585.

238

stocks had a duty to cooperate with the coastal State by entering "intonegotiations with a view to prescribing by agreement the measures ne-cessary for the conservation of the living resources of the high seas inthat area."' Article 63�! of the LOSC substitutes the wording "shallseek, either directly or through appropriate subregional or regional or-ganizatioM, to agree upon the measures necessary for the conservationof these stocks in the adjacent area."

The provisions on highly migratory species' Art, 64! are new;unlike the lesser duty to seek agreement, or to enter into negotiationsas in the case of straddling stocks, a direct obligation of cooperationis laid on States, whether directly or through appropriate organixa-tioas, in the conservation and management of highly migratory spec-ies, both within and beyond the EEZ. Article 65 distinguishes the KEZfrom the high seas, however, in the regulation of marine mammalsin the former the coastal State has full powers including the right toprohibit, whereas in the latter States are under a duty to cooperate inconservation measures.

Fishing on the high seas for anadromous stocks" is prohibited byArticle 66, except for nationals of States whose economies would bedislocated by the prohibition; in that case the State of origin the Statein whose rivers the stocks originate! and the affected States "shallNlaintain ConsultationS with a view tO achieving agreement on termsand conditions of such fishing, giving due regard to the conservationrequirements and the needs of the State of origin in respect of thesestocks." Fishing on the high seas for catadromous species" is alto-gether prohibited Art. 67!.

The third condition of the freedom to fish on the high seas is thesubjection to the remaining provisions of Section 2 of Part Vll ef theLC8C. These provisions are considerably weaker, even taking accountof the incorporation by reference of provisions relating to the regime

'Sat., m. 6 s!.

h liat of highly migratory apeciea ia given in LOSC, 198S, Annex 1. AH apeciea oftuna are included, aa well aa mackerel, pomfreta, marllna, aail-fiabea, awordfiah, aauriea,dolphin, oceanic aharhay and cetaceana.

Sg., dugong, aeala, and whalea.

10 Anadtomoua apeciea, auch aa aalmon and ahad, are attached by way of origin to aState'a keahwater rivera which they aacend in order to apawn. They apend moat of theirMvaa, however, at aea.

Catadromoua apeciea, auch aa eel, are freahwater fjah which deecend periodically tothe aea in order to apawn.

239

of the EKZ outlined above, than the corresponding provisions of theGeneva Convention on Fishing and Conservation of the Living Re-sources of the High Seas, 1958. The earlier Convention had allowedfor unihteral measures of conservation to be adopted by a coastal Statewith a special interest in the maintenance of living resources in anarea of the high seas adjacent to its territorial sea that would beopposable to other States, provided that

{a! there was an urgent need for such measures, b! the measures were based on appropriate scientific findings,

and c! the measures were not discriminatory.

Other states were entitled to object and to invoke compulsory disputesettlement procedures.~ Pending a decision, the measures wouldremain in force,"

This Convention has proved, however, to be largely a dead letter.Although it entered into force in 1966, it achieved significantly fewerratifications �6! than the other Geneva Conventions on the Law ofthe Sea. It was thought to go too far beyond customary law and to havebeen made redundant by the work of regional and national fisherycommissions in various parts of the world.~ It should also be remem-bered that in ! 958 these unilateral measures would have operated fromthe outer limit of the territorial sea �2 n.m.!, whereas if reproducedin the 1982 Convention they would have operated seaward of 200 n.m.It is therefore not surprising that UNCLOS III succeeded in producingagreement only that

a! coastal States have a duty to adopt high seas fishery conserva-tion measures for /heir own nationals;"

b! States shall cooperate with each other and "enter into negotia-tions with a view to taking the measures necessary for theconservation of the living resources concerned" and "shall as

669 UNTS 296, Art. T l!, N!.

+ArC. 9.

"~. ? s!, �!.

R.R. ChurchiH nod A.V. Love, ?he law of the Sea Manchester, Manclm~University Preee, 8ecoad EcUtlon, 1NN!, 1$, $50.

LO8C 1982 Art 11T

240

appropriate, co-operate to establish subregional or regionalfisheries organizations to this end"" and

c! that the agreed conservation measures be scientificaHy basedand non-discriminatory in effect."

The FAO Expert Consultation on Large-Scale Pelagic Driftnet Fish-ing" has drawn attention to the potential role of environmental im-pact assessments as provided for in LOSC Art. 165 and of the moni-toring provisions Section 4! of Part XII of the LOSC, in the regulationof driftnetting. It is difficult to see how Art. �5, which sets out thepowers and functions of the Legal and Technical Commission of theCouncil of the International Seabed Authority, could play a role inregulating high seas fisheries or in protecting marine life, unless therewere a direct impact on operations in the International Seabed Area.The monitoring provisions of Section 4 of Part XII, however, could berelevant to the problem of lost or discarded driftnets, which affect themarine environment.

Interpreting the LOSC Provlsloas

Words of obligation or mere aspiratioaPThe provisions contained in LOSC Articles 116-120, relating to the

conservation and management of the living resources of the high seas,are representative examples of the drafting style of the Convention asa whole and of the different degrees of rights and obligations con-tained in the Convention.

Article 116 gives, on the face of it, an unambiguous right to Statesfor their nationals to fish on the high seas. This right, however, isstated to be

subject to- a! their treaty obligations; b! their rights and duties as well as the interests of coastal States

provided for, inler alia, in Article 63, paragraph 2, and articles64 to 67; and

c! the provisions of this section [Part VII, Section 2].

241

The first qualification needs no explanation, other than, as notedearlier, to refer in this context to Art. 311�! regarding the superiorforce of the LOSC to incompatible agreements. The second qualifica-tion, however, throws into considerable doubt the scope of fhe free-dom to fish. Articles 64-67, as summarized earlier, relate to highlymigratory species, marine mammals, anadromous stocks, and cata'~mous species, respectively. The "rights and duties" of States in relationto these matters are by no means clear-cut, referring for the most partto "co-operation with a view to", acting "as appropriate", "mainbLiaiagCOnSultatiOns with a view tO aChieving agreement On termS aI1dconditions of such fishing," and similar expressions. These phases,although to be read subject to the customary law principle of goodfaith re-enforced by LOSC, Art. 300 on abuse of right!, are redolentof an "agreement to agree" pactum de conlrahendo or pactum de nego-tiando! rather than of a self-contained obligation. Moreover, thewords of Art. 116 b! refer not only to rights and duties but also to the"interests" of coastal States arising in connection with Articles 64%7."inter alia." The last phrase is even more elusive than "interests," siacothere is no hint as to what it might mean; presumably any right, duty,or interest of States arising from the Convention as a whole or fremcustomary law could or should be taken into account. The word inter-ests" appears also in Article 59 of the Convention dealing with tile'basis for the resolution of conflicts regarding the attribution of' rightsand jurisdiction in the EEZ:

In cases where this Convention does not attribute rights or juri%Hc-tion to the coastal State or to other States within the exclusive eco-nomic zone, and a conflict arises between the interests of a coastalState and any other State or States, the conflict should be resolvedon the basis of equity and in the light of all the relevant circum-stances, taking into account the respective importance of theinterests involved to the parties as well as to the internatioxhhlcommunity as a whole. Emphasis added!.

There are elementS in thiS remarkable piece of drafting Of the 110-tions of equity secundern leger, developed by the International Co~of Justice in the series of cases on maritime boundary delimitatiansbetween l969 and 1985~ especially the inclusion of "relevant cir-

~cipaHy the North Sca CorsgoMNsal Shdf Caser f1969l; 1CJ Reps. 1: 5aaiMr/~CarIsirwrahl ~Cast [198t]; IC J Repa. 18: Libya/Malta Candntetal Qeff Case f1988]' HAl41 . 18.

242

cumstances"!, and of "pure equity," or equity praeter leger, of a kindusually associated with judicia! decisions or arbitrations delivered exaero et bono."

It could therefore be argued that, although much of the drafting re-levant to high seas fisheries is in terms of aspiration rather than ofstrict obligation to be discussed further below!, the inclusion of "in-terests" of other States as an express qualification of the freedom ofFishing opens up the prospect that destructive or over-exploitativefishing methods employed on the high seas by one State to the detri-ment Of other States whether on the high seas or in their EEZs! couldbe accounted an "interest" which the first State is bound to respect. Itshould be noted that, when the Convention enters into force, the dis-pute settlement procedures of Part XV will be operative between theparties; there is no exception to the compulsory procedures under thatPart relevant to high seas fisheries. The contrary argument would em-phasize the relatively unqualified customary law freedoms of the highseas, and would thus urge a presumption against an expansive inter-pretation of the exceptions. Pending the entry into force of the Con-vention, and against non-party States thereafter, it may be difficult toargue that the broad notion of "interests" of States has entered into therealm of customary law as a derogation from the high seas freedom offishing.

Pactu de contruhendo/de eegotiandoReference has been made above to the "agreement to agree" formula

used in many articles of the LQSC, l982, including some relevant tohigh seas fisheries. Take, far example, the directly relevant provisionsof Article 118, "Co-operation of States in the conservation andmanagement of living resources";

States shall co-operNe with each other in the conservation and man-agement of living resources in the areas of the high seas. Stateswhose nationals exploit identical living resources, or different livingresources in the same area, shaH enter into negotiations with a viewto faking the measures necessary for the conservation of the livingresources concerned. They shall. as appropriate, co-operate to es-fablish subregional or regional fisheries organizations to this end. Emphasis added!.

+cf. statute A the tncermational court of Justice, Art. s8 $!.

243

Are these "weasel words," mere expressions of common politicalgoals, or stipulations giving rise to legal obligations?

The first sentence, taken in isolation, might be regarded as a merestatement of intent, since it lacks precisely articulated content. In thecontext of the section, however, and a fortiori of the whole Conven-tion, the sentence does, at a minimum, oblige parties to demonstratea practical willingness to work with other parties towards that generalgoal. This, however, does not take the matter very much further thansaying that only a clearly demonstrated unwillingness to co-operatewould constitute a breach of the obligation. Cooperation implies mut-ually agreed goals, means, and methods. The second and third sentenc-es deal with these. It is in the second sentence that a clear example ofa pactum de negotiando occurs; the sentence obliges the parties to ne-gotiate with a view to reach agreement on necessary measures but doesnot actually oblige the parties to reach an agreement which would bea pactum de contrahendo!. It may be that the difference between thesetwo pacta, although stressed by earlier writers, is no longer ofsignificance; good faith requires, in either case, that the parties gen-uinely attempt to reach agreement; in no case has an international tri-bunal held a party to a pactum de contrahendo in breach of that pac-tum for failure to reach the contemplated agreement.~ Neverthelessthere is real legal content in a paclum de negofiando, as the followingpassages from international tribunals demonstrate. In the Norflg SeaContinenfal Shelf Cases, the International Court of Justice, referringto Article 6 of the Geneva Convention on the Continental shelf, 195g,which requires parties to agree on the determination of boundaries onthe continental shelf, said.

For a general discussion of similar treaty clauses compare the contrasting views ofJ.E.S. Fawcett, The legal character of international agreements,' 50 BHL S81 �96sjand of Sir Hersch Lauterpecht, GrlrcM Paprrr, ed. by E. Lauterpacht, Carrrbridge,Cambridge U. Press, 1970! Vol. i, 111-112. See also K. Widdows, "What is an agreemsntin international law7", 60 BHL 117 �979!. The Australian High Court consideredwhether similar language in the Convention for the Protection of the World Cultural andNatural Heritage, 1972, ll lLM �972! 1668, constituted words of obligation for thepurposes of enlivening the constitutional power of the Federal Parliament of Australiato legislate with respect to external affairs': ComnronwsafN v. Tasnaaniu �085! 168 CLR1, per Gibbs, C.J, at 90-92, Mason, J. at 162-154, Wilson, J. at 188-198, Brennan, J at210-228, and Deans, J. at 281-264.

See generally U. Beyerlin, Pacoutr dr caerrajrsnd'o, pacrrorr Cr ntyNarufo, in R.Bernhardt ed.j, Kacy'~ of Pic lnrsrrraionNI Law Amsterdam, North Holland,1984!, tnstallment 7, S71-578.

244

the parties are under an obligation to enter into negotiations with aview to arriving at an agreement, and not merely to go through aformal process of negotiations as a sort of prior condition far theautomatic application of a certain method of delimitation in theabsence of agreement; they are under an obligation so to conductthemselves that the negotiations are meaningful, which will not bethe case when either of them insists on its own position withoutcontemplating any modifications of it..."

In the German ExterrraI Debts Arbitration between Greece and theFedera1 Republic of Germany the tribunal stated:

However, a pactum de negotiando is also not without legal conse-quences. It means that both sides would make an effort, in goodfaith, to bring about a mutually satisfactory solution by way of acompromise, even if that meant the relinquishment of strongly heldpositions earlier taken. It implies a willingness for the purpose ofnegotiation to abandon earlier positions and to meet the other sidepart way ... An undertaking to negotiate involves an understandingto deal with the other side with a view to coming to terms ... To bemeaningful, negotiations have to be entered into with a view toarriving at an agreement. Though ... an agreement to negotiate doesnot necessarily imply an obligation to reach an agreement, it doesimply that serious efforts towards that end will be made.~

These passages support the view that there is more than mere intentin Article 118. Professor Ulrich Beyerlin considers that the extent ofthe legal obligation inherent in a pactum de confrahendo or pact~a denegotiando will differ "according to the degree to which the substan-tive contents of the final agreement can be determined by means ofthe pactum itself."~ If regard is had to the context of Article 118, es-pecially Article 119 and the interlocking Articles from Part V of theConvention, as discussed earlier, then the substantive contents of theagreement to be achieved are identified within reasonably narrowfnargins. This consideration is also relevant, as Beyerlin points out, tothe position of a State in refuting later assertions that it has not done

It989j lCJ Reps. S, at 47, al extracted by Beyerrin, sup. cit., n. 22,

Dec|aio|| of 28 J anuary 1972, 47 1LR 418, at 45S-4S4; Beyerlin, sup. cir, n. 22.

Seyerlin, Sup. cit., nO. 22, aL. S78.

24S

The FAO Expert Consultation on Large-Scale Pelagic Driftnet Fish-ing in April l990" noted that the main fisheries involving large-scaledriftnets are the albacore tuna fisheries in the North Pacific, SouthPacific, and Indian Oceans, the squid fishery in the North Pacific andNorth Atlantic, and salmon fisheries in the North Pacific and NorthAtlantic. Drif tnet f isheries of lesser magnitude exist in the Bay of Bis-cay, the Mediterranean, near Sri Lanka and Pakistan, in the ArafuraSea, and in other places.~ The Report was unable to arrive at auniversal evaluation of the effects of driftnet fishing, since the datato carry out a thorough impact a<messment was not yet available. Preli-minary information, however, gave "reason for caution in the conductof such fisheries."~ The Consultation believed that "it would beunwise to wait for definitive data to become available and that actionshould be taken on the best available information."" The Consultationnoted the UN General Assembly Resolution 44/225 of 22 December1989 see further below!, but couM reach no agreement on the justifi-cation for temporary or permanent bans on pelagic driftnet fishing."One view was that such a ban could only be justified if severe threatsto the resources and the environment were scientifically demonstrated.The other view was that such bans could be appropriate in situationswhere the state and future sustainability of the resources and the envi-ronment were unacceptably uncertain."~ The Report concluded witha number of recommendations, including

Supra, no. 5. Th» roke of the IP'AO in relation to queationa of flheriea derivea hemlta mandate aa a UN Speciahaed Agency. It wea apeci5cally mentioned aa the organiaa-tion to «hich notificationa ahould be directed under Articie 6 of the Geneva Conventionon Fiahing and Conaervation of the Living Reaourcea of the High Seaa, 1968. In the UNConvention on the La«of the Sea, 1982, Art. 119, however, reference ia made oniy to'competent internationeI organiaationa whether aubregionai, regional or giobal' inharmony with the drafting atyie of the «hole Ccevention. FAO «aa apecificaIIy ceiiedapon by paragraph 6 of the UN General Aaaembly Reaolution 44/QS6 of SS December1989 urgently to atudy iarge-acale pelagic driftnet fiahing and ita impact on Bvingmarine reaourcea."

Rpatf, para. 80.

Para. 69.

247

a! that a coordinated effort be made to compile as complete ahistorical information base as possible by species, season, area,gear, and methods for the fisheries involving driftnets;

b! the development of a comprehensive data collection system forapplication on a global basis;

c! the facilitation of placement of observers on board commerc&driftnet vessels; and

d! that distant-water fishing nations provide informationregarding their driftnetting vessels and require them to carrysatellite"tracked transponders.~

The Consultation recognized the appropriateness of a regionalapproach to management, adopted also by the UN General AssemblyResolution; it recommended that regional management bodies beestablished or reinforced, as the case might be, and that coordinationbe developed between regional bodies, for example to exchange sciea-tific data, to organize joint working groups, share information oalong-range fishing fleet activities, and evaluate the feasibility ofcentralizing information on long-range fishing activities."

Regional bodiesThe regional fisheries bodies to which reference is made in the FAD

Report are principally the following:

a! The International North Pacific Fisheries Commission INPFC!. b! The South Pacific Forum Fisheries Agency FFA!. c! The Indo-Pacific Fisheries Commission IPFC!. d! The Indian Ocean Fishery Commission IOFC!. e! The International Commission for the Conservation of Atlantic

Tuna ICCAT!. f! The General Fisheries Council for the Mediterranean GFCh4!.

ln addition, regional political bodies have expressed concern andmade recommendations regarding pelagic drif tnet f ishing. For examp-le, the ACP-EEC Joint Assembly adopted a resolution at its meetingat Versailles in September 1989 urging all European CommunityMembers and Associated States in Africa, the Caribbean and thePacific to ban driftnet tuna fishing in their own waters. The Common-

248

wealth Heads of Government meeting CHOGM! adopted at theirmeeting in Malaysia in October 1989 the Langkawi Declaration on theEnvironment, which committed Member states to seek to ban tanglenet and pelagic driftnet fishing." The Organization of Eastern Carib-bean States OKCS! adopted at the meeting of its Authority on 24 No-vember 1989 the Castries Declaration which requires Member Statesto prevent the use of indiscriminate fishing methods in their EKZs andseeks to establish a regional regime in the Lesser Antilles region thatwould outlaw the use of driftnets." The South Pacific Forum adoptedthe similar Tarawa Declaration in July 1989, which later resulted inthe conclusion of the Wellington Convention see further below!.

The Uwiled Nations General Assembly ResolutioeOm 22 December 1989 the UN General Assembly adopted by con-

sensus Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing andIts lrnpact on the Living Marine Resources of the World's Oceans andSeas. The Resolution was the outcome of some six weeks of patientnegotiation and hence cannot be regarded as a knee-jerk or ill-consid-ered reaction to the issue.

The salient points of the operative paragraphs are:

3. Recommends that all interested members of the internationalcommunity, particularly within regional organizations, continue toconsider and, by 30 June 1991, review the best available scientificdata on the impact of large-scale pelagic driftnet fishing and agreeupon further co-operative regulation and monitoring measures, asneeded.

4 a!. Moratoria should be imposed on all large-scale pelagic driftnetfishing by 30 June 1992, with the understanding that such ameasure will not be imposed in a region or, if implemented, can belifted, should effective conservation and management measures betaken based upon statistically sound analysis to be jointly made byconcerned parties....

TAO Report, sup. cit., n. 6, para. SO.

UN Office for Ocean ANaira and the Law of the Sea, Law of the Scn Bal tfin, No. 14 December lQSQ!, S8.

kid., s9-so.

249

4 b!. Immediate action should be taken to reduce progressivelylarge-scale pelagic driftnet fishing activities in the South Pacific re-gion with a view to the cessation of such activities by 1 July 1991.as an interim measure, until appropriate conservation and manage-ment arrangements for South Pacific albacore tuna resources are en-tered into by the parties concerned.

4 c!. Further expansion of the large-scale pelagic driftnet f ishins oathe high seas of the North Pacific and all the other high seas outsidethe Pacif ic Ocean should cease immediately, with the understandingthat this measure will be reviewed subject to the conditions in para-graph 4 a! of the present Resolution.

Operative paragraph 3 puts time pressure on the scientific studiesalready in progress in FAO, regional and national bodies. Theobstacles in the way of collection and interpretation of data are, as theFAO Report recognizes," formidable. Nevertheless the spirit of theResolution is that further decisions should be taken on the basis of th6best available evidence at that time.

Paragraph 4 a! recognizes that the impact of driftnet fishing is notuniform throughout the world nor in respect of all species. Hence aregional approach is taken in relation to the moratoria, allowing flexi-bility in application. Sub-paragraphs b! and c! take the regional ap-proach still further by identifying the South Pacific region as onerequiring urgent interim measures, and the North Pacific region as onerequiring, for the time being, only a ban on further expansion ofexisting driftnet operations.

So far as the South Pacific is concerned, non- regional members havealready responded positively to the moratorium due to come into ef-fect on 1 July 1991. The Republic of Korea, as noted in the text of theTarawa Declaration of 10-11 July 1989, had already signified its de-cision to cease driftnet fishing in the region. On 26 June 1990 the Go-vernment of Taiwan announced that it would ban its driftnet vesselsfrom operating in the South Pacific by 1 July 1991 and was takingmeasures to phase out such fishing before then.~ Japan, in its state-ment to the General Assembly on the adoption of Resolution 44/225,assured delegates that it would "pay its highest respect to what the re-solution recommends us to do," although noting that "the adoption of

Sup. cd, no. 5.

+spiry hforning Herald, sY June 1090.

250

this Resolution does not affect any rights or obligations under interna-tiOnal law Or any partiCular exiSting international agrCM;mentS."

Tht fVellingten CcmwentionThe Convention for the Prohibition of Fishing with Long Drift Nets

in the South Pacific was opened for signature at Wellington, New Zea-land on 23 November 1989, It the first international convention thatseeks to ban driftnet fishing completely. It is not entirely in harmonywith the UN Resolution of 22 December of the same year, for thetatter, as already noted, regards the ban on driftnet fishing in theSouth Pacific region as from 1 July 1991 as an "interim measure untilappropriate conservation and management arrangements for South Pa-cific albacore tuna resources are entered into by the parties con-cerned." The Wellington Convention, by contrast, does not counte-nance any driftnet fishing at all in the future, once the Conventionenters into force

The geographical area of the Convention includes all the watersunder the fisheries jurisdiction of the parties and areas of the highseas delineated by stated degrees of latitude and longitude, The south-ern and northern boundaries of the Convention Area are the 50degrees South and 10 degrees North latitudes respectively. The westernboundary is the line of 130 degrees East longitude which approximate-ly divides South Australia and the Northern Territory from WesternAustralia and finishes just west of the EEZ of Pa!au. The easternboundary is the line of 120 degrees West longitude which runs east ofthe KEZ of Pitcairn Island. The area is thus comparable in size to, butnot identical with, the areas covered by the two other regional treaties,the South Pacific Nuclear Free Zone Treaty, 1985 and the Conven-tion for the Protection of the Natural Resources and Environment ofthe South Pacific Region, l986." Although the Convention Area thus

Text in UN 05ice for Ocean Affaire and the Law of Che Sea, Law of thr Sar BwQ'tinNo. 14 December 1989 , 81-M. States and other entitiee repreeented aC Che WellingtonConference were: the TerriCory of American Samoa, huetraVia, Che Cook Mande,Federated States of Microneeia, Fiji, France for French Polyaeaia, New Caledonia, and+'aDie and Futuna!, Kiribati, Che Marehall lelande, Nauru, New Zealand, Niue, palau,PiCcairn, Solomon Islands, Papua New Guinea, Tokelau, Tonga, Tuvalu, Vanuatu, and%eetern Samoa.

The Convention, not yet in effect, will enter into force on Che date of deposit of thefourth instrument of ratification or acceeeion.

Signed at Raratonga, 8 Auguet 1985. Text in 24 lLM 1440 �985!.

Signed at Noumea, 24 November 19M. Text ia 2B lLM 88 �987!

251

includes both pockets and substantial expanses of high seas, Article Iof the Convention provides that the obligations assumed do not extendto the entire Convention Area in the case of those parties which arenon-regional States, signing the Convention only in respect of anyTerritory within the Area for which it is internationally responsible,or of a non-sovereign Territory which has been authorized to sign bythe State for whose international relations it is responsible; in thosecases obligations are assumed only in respect of waters under thefisheries jurisdiction of that Party adjacent to the relevant Territo-ry 47

The Convention obliges each Party to prohibit its nationals and ves-sels documented under its laws from engaging in driftnet fishing acti-vities within the Convention Area.~ Each Party also undertakes to~ke measures, "consistent with international law," against driftnetfishing activities within the Convention Area, including prohibitingthe use of driftnets within areas under its fisheries jurisdiction andprohibiting the transshipment of driftnet catches within areas underits jurisdiction. Optionally, each Party may also take measures,consistent with international law, to prohibit the landing of driftnetcatches within its territory, to prohibit the processing of driftnetcatches in facilities under its jurisdiction, prohibit the importation Ofany fish or fish product caught using a driftnet, restrict port accessand port servicing facilities for driftnet fishing vessels, and to prohibitthe possession of driftnets on board any fishing vessels within areasunder its fisheries jurisdiction.» The Forum Fisheries Agency, whoseheadquarters are in Honiara, Solomon Islands, is charged withresponsibilities for collection, preparation and dissemination ofinformation on driftnet fishing in the Convention Area.

hmdysis o j lhe N'eIlington ComentioeThe obligation of the Parties to legislate with respect to their own

nationals, and vessels documented under their law' s, is well founded iniaternational law on the nationality principle of jurisdiction. lt is alsothe basis of LOSC, Art. I17 which engages the responsibility of States

~Convention, sup. ck, no. iS, Axt. fata! ii!. This quali6cation appiiee to ~ric~Samoa, 'Fhe Federated Statee of Microneeia, France, the Marehall telande, Nine P<atI.I'itcairn, and Tokelau.

Atticle R.

articl s.

.Article 8.

252

to legislate with respect to their own nationals to adopt measures forthe conservation of the living resources of the high seas.

The obligations to prohibit the use of driftnets, and the trans-ship-ment of driftnet catches, by persons or vessels of any nationality,within areas of a Party's jurisdiction raise at least one question. Bothobligations are stated to be subject to international law. So far as theprohibition by a Party of the use of driftnets within its KKZ is con-cerned, there would seem to be no problem since the LOSC Part V,and customary law principles which have already crystallized in rela-tion to the regime of the EEZ, recognize the right of coastal States tomake regulations relating to the conservation of the resources of theEKZ, including the specification of the types, sizes and amount ofgear that may be used." National legislation has already moved in thisdirection in relation to driftnet fishing.~ "Transshipment of driftnetcatches within areas under its jurisdiction," however, may be a proble-matical prohibition. Note that the word "jurisdiction" is used, and not"fisheries jurisdiction" as in the first prohibition. "Transshipment"means the transfer for further transportation from one ship or convey-ance to another. It is not to be confused with "transit," which is unin-terrupted passage. No doubt a State could prohibit transshipment ofgoods in its territorial sea or contiguous zone, consistently with inter-national law; in the territorial sea the necessary stopping would de-prive the voyage of its character as innocent passage; and in the con-tiguous zone the control could be argued to be related to the coastalState's customs jurisdiction. It could certainly legislate to prohibit suchactivities in its ports. In its KKZ, however, there seems no warrant ininternational law for such a prohibition. Transshipment is not an acti-vity mentioned in LOSC, Article 62�! as within the power of law orregulation-making of a coastal State in its KEZ, even though that listof powers is preceded by the familiarly expansive phrase "inter alia."So far as customary law is concerned, derogations from the freedomsof the high seas should not lightly be implied, even though it seemsunfashionable these days to read LOSC Article 58�! as raising a strongpresumption of residual high seas freedoms in the EEZ,

Similar doubts can be raised against the validity of the Convention'soptional prohibition against "the possession of drift nets on board any

LOSC, Are. BR�! c!.

Sg., AuaCraUa, Fisher!ca Notice No. AFZl of SO July 10$1. New Zealand, TheExclusive Economic Zone DrNnec! Regglatione, 1989; the Fiaheaea DriAnet!Regnlatione, 1989.

253

fishing vessel within areas under [a Party's] fisheries jurisdiction,at least in so far as it might be applied in the enforcing State's EEZ.The LOSC, Article 62�! c! empowers a coastal State to prescribe theuse in its EEZ of types of gear, but it is not at all clear, on the basisof the wording employed, that mere possession of certain types ofgear, properly stowed, could be prohibited. The doubts deepen wherea State might seek to enforce such a prohibition against a foreign fish-ing vessel exercising its rights of archipelagic sea lanes passage ortransit passage through straits.~ One can only assume, or at leasthope, that in applying the measures indicated by the Convention "con-sistent with international law," the Parties would not attempt to applythem to vessels exercising the rights of archipelagic sea lanes passageor transit passage through straits, which seem completely contrary toboth the Law of the Sea Convention and customary international law'-

The restriction of port access and port servicing facilities fordriftnet fishing vessels~ appears to be consistent with internationallaw. Professor A.V, Lowe has convincingly demonstrated that, contra-ry to the opinion of some earlier writers, there is no right of access «ports in modern customary international law.~ The question of entryof vessels in distress, however, would require exceptional treatment.

The prohibition of the importation of any fish or fish product,whether processed or not, which was caught using a driftnet, is afamiliar legislative device, having regard to the Magnuson Act, l976,of the U,S., which allows the Secretary to the Treasury to declare anembargo on fish products from countries whose laws conoict withU.S. fishery policies.~ It is not necessary in international law for theundoubted prescriptive legislative power of States in respect of theirown domestic commerce and customs concerns to extend to the highseas in order to characterize the nature of the prohibition; the fact thatthe prohibited catch originated from the high seas is no more than afact, not different in essence from prohibiting the importation ofprOduCts in green-COlOred wrapping. It is nOt per se an assertion Of

wellington Convention, zap. ck, no. 42, Art. S�! e!.LOSC, Arta. 42, 58, 64.

%e}lington Convention, ¹rp. ck, no. 42, Art. S�! d!.

~Right of entry into porta', N San Diego L. Rev. 50'7 �076-77!.wellington Convention, ay. ck, no. 42, Art. S{2! c!.

Fiahery Conaervation and Manngemont Act, 1076, 18 U.S.C. S! 1825 �982!.

254

prescriptive jurisdiction over the high seas. Enforcement on the highseas, however, would be an entirely different matter."

High jy migratory speciesThe unhappy history of conflict between the U.S. and the island

countries of the Pacific concerning rights to fish for tuna in the KEZsof those countries seems now to have come to an end.~ The Treaty ofFisheries between the Governments of Certain Pacific island Statesand the GOvernrnent Of the U.S. waS Signed at Port MOreSby On 2 Ap-ril 1987." The treaty provides for the issue of regional licenses forAmerican tuna vessels in some l0,000 square miles of EKZs in theSouth Pacific. The treaty fixes a floor fee for each license, which willlater be indexed to the price of tuna. The fees will be distributed tothe island States in proportion to the amount of tuna taken from theirrespective 200 mile zones. Certain other provisions are made withrespect to enforcement, development assistance, and provisioning ofvessels.

Nevertheless, it is clear from the preamble to the Treaty that theU.S. has not abandoned its view that, under customary internationallaw, tuna but not other highly migratory species! do not fall under theexclusive jurisdiction of the national fishery zones through which theyhappen to be passing. This view couM be re-asserted, if the Treatywere to come to an end, and relevant U.S. legislation has not been re-pealed," This argument, however, becomes ever harder to sustain asState practice conforms to the Law of the Sea Convention, 1982, Ar-

Cf. the conCroveray concerning the interpretation in the U.S, of ihe Marijuana onChe High Seas Act, 1980: Curtis, "The outer limits of jurisdiction on the high seas: UnitedStator v. Rornero-G alue and United States V. Alvarea-Mena," 5 Wisconsin Int. L.J. 222�980!; Lewis, Marijuana on international hmits," 8 Yale J. world Public Order S69�982!.

See generally M. Taainenyi, The SouCh Pacific States, the USA and sovereigntyover highly migratory apeciea, 10 Marine PAL< 29 �980!; C.C. Aikman, Mand nationsof the South Pacific and jurisdiction over highly migratory apeciea," 1'7 VictoriaUniversity of Vfellington Law Review 101 �987!; C.K. Kelly, 'Law of the Sea: thejurisdictional dispute over highly migratory apeciea of tuna," 28 Columbia J. Trans. L.<75 �988!.

20 1LM 1048 �987!. The signatories were: Che U.S., Australia, the Cook hlanda,Fiji, the Federated SCatea of Micronesia, Kiribati, the Marshall Islands, Nauru, NewZealand, Papua Ne» Guinea, Solomon islands, Tuvalu, and Western Samoa.

Pbe Magnuaon Act, sup. ck, no. 67; Proclamation 50M, 10 March 198S, S C.F.R.2 �088!; the Fisherman'a Protective Act, 22 U.S.C. 1971-1950 �982!

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ticle 64, which unambiguously subjects all highly migratory species Cothe jurisdiction of coastal States in their EEZs.~

kfannc mammalsReference has been made earlier in this paper to the dangers posed

to marine mammals by pelagic driftnet fishing practices and to reportsof unacceptably high "incidental catches" of such creatures in certainregions, It is one of the three major factors at work in seeking greaterinternational cooperation in controlling driftnetting the others beingover-fishing and the problem of discarded nets!.

Jurisdiction over marine mammals in EEZs is clearly asserted in ex-clusive terms in the Law of the Sea Convention, 1982, Article 65. MostStates already prohibit the hunting of marine mammals in watersunder their sovereignty or jurisdiction.

Early in July 1990 the International Whaling Commission met to re'-view the prohibition of commercial whaling imposed by the body in1982 to operate from 1986. Japan, Norway, and the USSR did not atthat time accept the ban, but voluntarily applied it from 1988. TheI99G meeting considered evidence, adduced in particular by Icelandand Japan, that the minke whale, the smallest commercially viablewhale, was no longer in danger of extinction; they argued that the banshould therefore be lifted, The Commission, however, by more thanthe required two-thirds majority of its 37 Member States, voted tomaintain the prohibition." Since measures, if objected to, are notbinding on Members under the Constitution of the IWC, it remains tobe seen whether the prohibition will remain effective, supported as itis by widespread popular opinion.

Coadusioss

The high seas, as a juridical concept, will always remain contro-versial. Experience shows that the community's manifold interests inthe high seas wiH not be served by arid theoretical debates about resnullius, at one end of the spectrum, and the "global commons" at theother. A pragmatic subject by subject approach is called for, in whichdiplomacy, rigorous scientific research, public opinion, and the devel-opment of general principles of Iaw al! play their roles.

R.R. churchN and A,v. Law+, sr'. ck, no. xs, lsd-s$8; Ktjly, sup. cir, no. 59, 604-515.

~~ Homing Hctel4 0 July LQQO.

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At UNCLOS III the chief driving forces were, on the one hand, theconcern of coastal States for the maximization of their resource inter-ests in the sea, and on the other, the concern of the distant-water fish-ing States, the nations dependant on seaborne trade, and the majormilitary powers for the preservation of unimpeded passage and over-flight in and over the high seas, foreign EEZs, archipelagic waters,and straits. Concern for the protection of the marine environment wasalso evident, but insofar as the high seas were concerned, the resultingConvention deferred largely to the present and future actions agreedin the competent international organizations. In the decade since theconclusion of the United Nations Convention on the Law of the Sea,concern has focussed more sharply on the finiteness of marine re-sources, the survival of particular marine species, and indeed the sur-vival of the planet itself.

The present debate on the high seas is marked by a clash of opinionsbetween those who would seek to continue to exploit living marine re-sources at least at the present rate, and those who would regulate ex-ploitation strictly, and even, in cases such as whaling and driftnetfishing methods, to prohibit exploitation altogether. There are extrem-ist exponents of both positions with a number of opinions in between,The FAO Expert Consultation" in 1990 appears to have struck a rea-sonable balance between the dangers, on the one hand, of uncriticalacceptance of alarmist statistics and warnings, and on the other, of a"wait and see" approach. Nearly all sides of the debate appear to agreeon at least one thing: the urgent necessity for the accurate and coordi-nated collection and dissemination of scientific data.

International law is just one of the factors in play, It should beneither underestimated nor overestimated. The provisions of LOSC,1982 Part VI!, Section 2 are, as discussed earlier in this paper, ofgreater substance than might appear at first sight. The operation ofthese provisions, and especially the determination of the practical lim-its within which negotiations in good faith must be conducted, will bemore sharply focussed as reliable scientific data are collected and in-terpreted, Responsible regional and global organizations have a criticalrole to play in this process.

There is evident danger in unilateral approaches to the problems ofhigh seas living resources. Unilateralism can take the form either ofthe refusal by a State to contemplate any change in its present policies,or of a State's reliance on its own economic power to impose sanctionsOn States whose marine resources policies conflict with the interests of

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that State. While some degree of pressure emanating from economical-ly powerful States � such as the current advertising campaign for"dolphin-free tuna" � can be a welcome incentive to the modificationof clearly harmful practices, a high-handed or vindictive approach cando much harm. The Wellington Convention is a welcome example ofa multilateral approach, while it has within it certain disturbingfeatures.

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TECHNOLOGICAL ASPECTS

Yoshiaki MatsudaFaculty of Fisheries

Kagoshima University

Introduction

!n September 1991, Japan, USSR, Canada, and the United Statesagreed on an entire ban of salmon and trout fishing on the high seasnorth of latitude 33 degrees N. This ban will be effective ninety daysafter Japan's ratification. In October, the United States submitted tothe United Nations a resolution which intended to effect the UN reso-lution on high seas driftnet fishing adopted in December l989. Theseevents have threatened Japanese gillnet fishermen who have not re-ceived enough scientific explanation for justification of such politicaldecisions.

The problem is not a matter of choice between scientific or politicalsolutions, but a matter of a political solution established on a scientificbase. The "decision by majority" principle does not always providebetter solutions. The current confrontation between fishermen andenvironmentalists is a sad phenomenon. Although both love nature,most fishermen must live with seas, fishing grounds, and fish whilemost environInentalists need not live with them. Fishermen are moreconcerned about the marine environment than the environmentalistsbecause of their dependence on it. Therefore, fishermen are the mostpromising group of people to watch over the world environment forthe twenty-first century. Accordingly, we must look for the sharingof interests between fishermen and environmentalists, rather than forantagonism between them. A scientific approach based on the facts isthe only way to bridge these critical groups.This paper addresses the technical aspects of fishing and the impor-

tance of political decisions based on the best current scientific knowl-edge. The focus is on net fishing trawl, purse-seine, and gillnetfishing! due to its importance in international affairs.

Characteristics of Fishing Gear aalu Methods

Fishing gear and methods are products of a long history and haveundergone technological development. The principal characteristics ofthe major fishing gear, such as nets, hook-and-lines, and traps,however, have remained almost unchanged, though materials and

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auxiliary devices have changed greatly. The development of under-water observations opens up wide conservation-oriented gear studyopportunities.

Fishing gear consist of major fishing gear and auxiliary fishing gear.The former is defined as the direct tools to harvest fish, while t~elatter means indirect tools to harvest fish, such as fish finding devicesgfish aggregating devices, and auxiliary fish harvesting devices.Major fishing gear and auxiliary fishing gear interact with each

other to enhance the harvest. Fishing methods refer to this combina-tion.

Catch Selectivity

Catch selectivity of nets is regarded as mesh selectivity or fishingefficiency. However, fishing efficiency is a much broader conceptthan mesh selectivity. That is, mesh selectivity is a function of meshassociated with mesh size, quality of nets, and characteristics of fish,while fishing efficiency is a function of fishing gear and methods-

Interest in catch selectivity and conservation oriented fishing lMLsbeen increasing The Japanese Society of Scientific Fisheries, 1979;Koike, l989; Marine Institute, l988!. In this section, the catch selec-tivities of major fishing gear and methods are discussed.

ln general, fewer species and larger catches per species are charac-teristics of high latitude and/or mid-or-surface water fisheries whilea large number of species and small catches per species characterizelow latitude and/or bottom water fisheries. In addition, the commer-cial species composition of coastal fisheries is greater than offshorefisheries. Further, prices of each species are quite different in place,time, and quality, whereas there is a technical inability to completelycope with selective fishing and dropout from fishing gear. Thus, by-catch, fishing mortality other than landed catch, and discard problemsare unavoidable at present. Efforts to reduce these external disecono-mies must be increased by improving technical capabilities for selec-tive fishing as well as administrative rules and regulations.

Trawl fishingAccording to the current Japanese fishery law, trawl fishing is

classified in four designated fisheries mothership type trawl fisherY,distant-water trawl fishery, "ISKI" trawl fishery, and offshore trawlfishery! licensed by the Minister of Agriculture, Forestry and Fishery.and six governor licensed fisheries smaB scale Danish-seine fishery.Seto Inland Sea boat seine fishery, Danish-seine fishery, non-powered

boat seine fishery, non-powered bottom trawl fishery, and beach seinefishery!.

Among these fisheries, there are great differences in size of gear,mesh size of codends, targetted species, and productivities. Adminis-trative control of these fisheries is at present limited to controls on thenumber and size of vessels, zoning, fishing grounds and seasons, meshsize, and total net length.

In 1979, the mesh size of the codend of bottom trawl nets for codfishing in the Republic of Iceland changed from 135mm to 155mm,while the Japanese are using much smaller mesh sizes such as 55-66mm for the "ISEI" travel fishery a pair trawl fishery operated inEast China Sea! and 90mm but double netting! for the North Pacifictrawl fishery. As a result, the Japanese caught smaller fish than theIcelanders Nose, l 983!.

Once fish enter into the mouth of trawl nets, most fish cannot escapefrom a part of the nets, except for codends. The proportion of remain-iag fish in the codend tends to increase as the body length increases Fujiishi, 1979!. Although an increase in mesh size of the codendeffectively prevents juvenile catches, the economic viability tends todecrease. Thus, the economic confrontation of new devices and/orrules and regulations is unavoidable.To evaluate catch selectivities, 50% retention length L5Nb: the body

length when 50% of fish remains in the codend! and selective factor S.F. L50%/mesh size! are generally used. According to Jones �976!,appropriate ones are S.F. 2-3 for fish with short body length andhigh body depth; S.F. 2 for ordinary spindle-shaped fish; and S.F.~ 6 for fish with long body length and narrow body width.

Factors affecting catch selectivity are classified as external andinternal. The former are attributable to daily and seasonal distributionand behavior of the school; vertical and horizontal distribution anddifferences in behavior among species; and competition between trawlfishing and other fishing gear and methods in the same fishing ground.The latter are attributable to relative fish size against mesh size andbehavior of the school against the nets.On sole, silver hake, and American plaice, L50% of synthetic fiber

was larger than natural fiber such as cotton and Manila, regardless ofdifferences in mesh size Fujiishi, 1979!.

In Japan, average mesh sizes of codends used are 20-30mm for thesmall-scale Danish-seine fishery, 33-43mm for the off-shore pairtrawl fishery, 60mm for the off-shore trawl fishery targeting Alaskanpollack, 55-66mm for the "ISEI" trawl fishery, and 75mm for distant-water and mothership type trawl fisheries.

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AN'$8' see% f JsklNgBoth external and internal factors influence catch selectivity of purse

seine fishing. Selection of aimed species and fishing grounds is criticalfor determining gear and methods. That is, fishing gear and methodsare quite different between purse seine fishing for sardine, mackereland horse mackerel and purse seine fishing for tuna and skipjack.On fish finding methods, the former depends heavily on. sonar, whilethe latter depends on water surface watching. On fish aggregation, theformer depends on fish lamps at night, while the latter does not. Onshooting nets, the latter requires nets with higher specific gravity andsmaller resistance. Catch rates rate of number of catch with over oneton per shooting! are also different. The catch rates are reported as30% for large tuna and billfish, 54% for skipjack, SO'% for anchovyday fishing, and 90% for sardine, mackerel, and horse mackerel nightfishing Inoue, l 979!,

Tuna and skipjack schools are classified as schools of mono-species about 90% of fish is the same kind! and multi-species. Broadhead andOrange �960! reported that total catch from a mono-species school islarger than multi-species one; and on yellowfin, body weight per fishfrom a mono-species school is heavier than from a multi-species one,while the reverse is true with skipjack. This indicates a tendency tomake a multi-species school with sitnilar body length. Further, multi-species schools with skipjack are reported to be more easily caughtthan mono-species schools with large tuna and billfishes while pairboats tend to catch large tuna more than skipjack and vice versa forsingle boat purse seining {Inoue, 1979!.

Body lengths of the catches differ with operations: on yellowfinrange from 77-172cm for schools associated with dolphin, 47- l l gcrnfor schools with no association, and 35-64cm for schools with driftingseaweeds {Inoue, l 979!.

From the catch rate point of view, skipjack schools with bait fish such as sardine, squids, mackerel pike, and small mackerel! are rela-tively easy to be pursed, and difficult to catch by pole-and-line Inoue, l 979!.Other research indicates that tuna schools with other fish {skipjack

and common dolphin! are easier to catch than mono-species schools Sasagawa et al., l973!. awhile the catch size per seining with largerschools is greater than with smaller schools, larger schools of tunaand/or skipjack are more difficult to catch than smaller schools lnoue, l979!.

Regarding sardine, mackerel, and horse mackerel schools, denseschools are stable and consist of mono-species with similar bodylength, while multi-sized and/or multi-species schools are unstable, as

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weB as less densely gathered Mozinic, 1977!. Further, minor speciesmake multi-species schools, not vice versa, and smaller fish tend tocompose the upper layer of the schools Philips, 1952!. The rate ofmulti-species catch is greater at night than during the day, due to theuse of fish lamps SE1KAIKU Fisheries Laboratory, 1951!.

For purse seine fishing, catch selectivity of mesh size have not beengiven much attention for the following reasons:

�! The catch depends on a system of netting-pursing-harvesting,not on each mesh size;

�! The action of the nets in the water is not stable during pursing;�! The fishing is based on high mobility, and the targetted species

are multi-sized and multi-species;�! Smaller mesh size is required to catch all fish gathered; and�! The aimed species are bulk species.

Thus, conservation-oriented research on purse seining has been rare.According to Janssen �938!, the "Christmas trees" phenomenon a

mass of 10-18cm long small sardines get stuck in the upper 0-15mlayer of purse seine meshes! in the coastal waters off California inwinter was prevented by a decrease in mesh size of the upper layerfrom 381mm to 2S4mm. Accordingly, purse seine catches includemany commercially unappreciated fish, such as juveniles.

Gillnet jishiegGillnets are of two types; stationary, and floating the so-called

driftnet!. There are two types of gillnet fishing. One harvests fish byenmeshing them in the nets, while the other harvests fish by entang-ling them in the nets. The former is more common than the latter inJapan. Thus, this section deals with the common case.

The catch selectivity of gillnets is generally expressed by a relativecatch ef ficiency, which is a function of the fork length of caught fish.ln general, this function shows a normal curve affected by a conditionfactor corpulent degree! of fish, species, mesh size, diameter andelasticity of netting twine,

Nashirnoto's studies of pink and chum salmon driftnets �979!indicate the following:

�! As the condition factor of fish increases, the optimum lengthtends to decrease while the relative catch efficiency com-pressed volume through mesh/triple ratio of forklength!/10,000] increases;

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�! Both the highest relative catch efficiency and the optimumlength of pink salmon are larger than those of chum salsa»;

�! As mesh size increases, both relative catch efficiency andoptimum length tend to increase;

�! Both the highest relative catch efficiency and the optimu~length with the No. 10 nylon mono-filament net are larger tlL»nthose with 210D-3/1$ nylon multi-filament net; and

$! The finer the diameter of the netting twine, the larger therelative catch efficiency, the wider the range of length, and thelarger the optimum length.

Co»serratio» Devices

To meet the demand and to ensure that the seas remain an assu~dsource of food for future generations, policy makers and manage~must address immediate needs to:

�! reduce post-harvest losses;�! make more use of presently under-utilized and/or non-utilized

stocks;�! reduce wastage through unwanted by-catches in shriMP

fisheries;�! make fishing gear more effective and selective; and�! increase aquaculture production Fitzpatrick, 1988!.

ln a narrow sense, fishing gear and methods are responsible for oakyone case. Ln a wider sense, however, all of these issues are closelyrelated to the fishing gear and methods.

Simihr emphases have been repeated Tezuka, 1967; Schmeck, 1974;Ricker, 1976; McConnel and Norton, 1978; Matsuda, 1982; Beckett.1988; Wardle, 1988; Bjordal, 1988; Dickson, 1988!.

Selcetcd areas and rinseApart from fishing gear and methods, area and time selection has a

great impact on catch selectivity. Fish occur in different areas atdifferent stages of their lives Beckett, 1988!. The marine environmentis a common property to all lives at sea. Thus, it is a common pheno-menon for various marine species to swim around in the same area andat the same time. However, distributions of them are not even, ratherpatchy and degrees of their interactions are different in area and titee.

Besides, economically viable fishing grounds are limited. Unneces-sary incidental catches, destruction of spawning and nursing grounds,

264

juvenile catch, and overfishing of spawning stock have been heavilycriticized.

These criticisms advise us to change our current consumption patternand existing fisheries seeking for the same aimed species. Of course,depletion of one species may be compensated for by other species, andthere is some room to consider changes in our consumption patternand aimed species. However, these transitions in fisheries, especiallyresulting from their fishing, not from environmental changes, areeconomically difficult. Therefore, to survive, the fishery must providea rational answer to these criticisms.

Reviewing incidental entrapment of seabirds, seals, «nd whales ininshore fishing, Lien et al. l988! indicate the costs of the gillnet by-catch incurred by rnanagernent in the form of gear and down-timelosses and by the fishing industry, as a whole, in negative publicity.These are not negligible.

The best way to prevent these external and internaj diseconomiesaught be to limit fishing in specific areas and time.

Fish Nggregatieg and drivieg devicesFish are aggregated by light, bait, and frightening. Saury stick-held

dip net, mackerel pole-and-line, mackerel and horse mackerel purseseine, squid angling, and lift net are typical methods which use lightat night. Day fishing, such as skipjack pole-and-line, horse mackerelstick-held-dip net, lift net, yellowtaB angling with baiting are typicalones using bait.

With or without bait, various traps and octopus pots are also used.Further, fish gather around brush shelters, artificial reefs, and floatingobjects such as rafts or "Payao," logs, and seaweeds. The reasons forthese gathering are not well known, though various hypotheses, suchas baiting, protecting themselves from predators, shading, smelling,spawning, removal of parasites, sounding, and schooling exist Kawamura, l984b!.

Scare lines for sea bream "Shibari-ami semi-surrounding net withpocket!", "Muro-ami" and striking the water with sticks for encirclinggillnet, and electric fishing are based on the frightening principle.Screening devices include set net, "Yana" weir!, "Eri" brush weir!,aad electric screen.

To catch fish more effectively, use of these fish aggregating deviceswHI increase. However, these devices are more or less not species spe-cific, but rather attract many species at once. Therefore, to preventby-catch problems, it is important to augment these devices with otherdevices, as weil as to improve the discrimination capability of the

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target species alone. Nevertheless, use of devices based on»ght. elec-tricity, sounds, bubbles, and smells will increase.

Escapement devicesEscapement of undersized fish from passive gear such as traps, so<

nets, and gillnets is easier than from active gear, such as dragged getsor purse seines. This is because the meshes of an active gear ctLIbecome quickly blocked by the catch of larger fish and/or by debrisin the case of seines, and the shape of the meshes may be distorted bythe strain put on the twine, or by the way the gear is rigged, iffishermen are not happy with the mesh size {Beckett, 1988!. In the'multi-species fisheries, the ideal mesh size for one species is almos<certain not to be the best for another species.

According to Watson �988!, there are significant differences in thebehavior of different species and different sizes of the same species"The observed reactions of fish to trawling gear are that

a! Fish orient to currents using visual and tactile stimuli; b! Fish reaction to trawls is primarily an optomotor response; c! Doors and sweeps tend to "herd" fish; d! Fish can escape trawls by swimming over the float line or under

the lead line; e! Fish react to areas of slack webbing, holes in webbing, or areM

where color or structure of webbing contrast by attempting ~>escape through the webbing;

{f! Fish attempt to escape through webbing when crowded; g! Fish swim with the trawl until exhausted; h! Fish tire and turn to swim toward the codend which may appear

as a hole due to low contrast with the background; i! Fish attempt to swim out of the trawl or through the meshes

during haulback;{j! The capture of fish is dependent on the speed of tow relative <o

swimming speed of the fish; and k! Reduced water flow within the trawl can affect the time

required to exhaust fish and result in fish escape.

Using a finfish separator technique based on these studies, Watson'atravel design modifications resulted in fish/shrimp separation of up to80% with no significant loss in shrimp catch.

Problems of the finfish/shrimp separator trawl at present are that thenet structure is complex «nd frequently broken, resulting in mendingdifficulty as well as a decrease in the crew's share of the catch. As aresult, it is difficult for fishermen to adopt this method. In Indonesia.

fishermen carry ordinary nets illegally and use them when the surveil-lance of the shrimp fishery is short. Therefore, it is essential todevelop a simpler and easier-to-handle separator trawl.

Further progress in selective shrimp trawl development includes useof the square mesh HH-sorted panel in Norway Karlson and Lawsen,1988! and the funnel arrangement in the aft belly of a shrimp trawl asa shrimp size selector in Norway Valdemarsen, 1988!. Effects of thesesquare mesh codends on haddock, whiting, and Nephrops norvegieus L! Robertson, 1988! and on cod, haddock, pollack, and flounder Cooper and Hickey, 1988!, and the Norwegian funnel arrangementfor the northern shrimp fishery in the United States Averill, l988!have been tested. These results indicate that in all cases there can bea significantly greater reduction in the catch of juvenile fish as com-pared to conventional codends, except for flounder such as Americanplaice and yellowtail, with which the diamond mesh was more effec-tive in releasing juveniles.

Allen �985! discusses dolphins and the purse seine fishery foryellowfin tuna in the eastern Pacific as follows:

Aggregations of yellowfin tuna and dolphins are often accompaniedby birds, and it is normally either the activity of birds or splashesmade by the dolphins which attract the attention of fishermen. Aswell as providing a cue for the fishermen to locate a school of tuna,the dolphins serve as a target for the seiner to chase, round up, andeventually encircle with the nets. During this activity the tunaremain very close to the dolphins and are also captured. Once thefish are securely encircled by the net, the fishermen attempt torelease the dolphins by carrying out a manoeuvre called "breakdown."This involves retrieving about two-thirds of the net from the water,then moving the seiner slowly astern, The net is forced into a longchanne1 and when the seiner reaches a certain speed, the waterflowing through the seine webbing causes the end section of the netto sink, allowing the dolphins to escape over the top. In effect, thenet is pulled out from underneath the school. During this manoeuvreit is usual for some of the crew to assist the dolphins to escape bydisentangling those which get caught in the webbing. One man maybe in a small inflatable raft inside the net and one or two others inspeed boats which are tied to the net. Despite the efforts at ensuringthat dolphins are released unharmed, there are, on the average, a fewkilled for each set.

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In Japan, underwater driftnets have recently been tested ta prevo«incidental dolphin catch in the South Pacific. The new type nets nrehung by ropes at a depth of 1-3m in the water Anonymous, l990 +ndsee Figure 1!. The result with albacore fishing during the November1989-March 1990 fishing season showed that average incidental cate>per shooting was 0.14 for dolphin and 0 for sea turtle and seabirds, tLscompared with 2.11 for dolphin, 0.07 for sea turtles and 0.07 for ~-birds under the ordinary driftnet fishing. Further, this type of net ~aho tested for squid driftnet fishing in the South pacific during thesummer season of 1990. The average incidental dolphin catch was >/<of that with the ordinary driftnets while there was no differenc~ insquid catch.

Issues on Briftnets

United Nations resolution on dri jtnet fishingIn December 1989, the United Nations adopted a resolution o>

driftnet fishing Fishery Agency, 1990!. According to the resolutia>.the following five aspects were emphasized:

�! to strengthen international cooperation on conservati«>+dmanagement of marine resources;

�! to promote collection and exchange of statistically reliable <tataon driftnet fishing;

�! to review data on impacts of drift net fishing as of J»e 301991 and to cooperate in the control and monitoring as needed'

�! to recommend agreeing the following treatments: a! to implement a "moratorium" on or before June 30, 1992

unless effective conservation and management measures toprevent negative impacts from the driftnet fishery, basedon the cooperative statistical analyses by the countries coN-cerned, are practiced;

b! as a temporary measure, until a framework of appropriateconservation and management in the South Pacific is estab-lished, large-scale driftnet operations will be gradual>yreduced and be stopped as of July, 1991; and

c! to immediately stop the expansion of the large scaledriftnet fishery,

�! to continue discussion on the above issues at the United Nationsand other related organizations.

This resolution definitely affected the Japanese fishery, and %heJapanese government quickly reacted on this matter.

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Figure 1: New driftnet tested at high seas iu the Pacific

a! Conventional type

b! New type

Source: Anonymous, l 990.

Note: Although this was regarded in the newspaper as announced bythe Fishery Agency Japan!, the Fishery Agency denied thisfact. However, the Fishery Agency has recognized that thosenets have been tested.

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Japanese dri janet fisheriesjapanese driftnet fisheries are the squid drift@et, "Qhme �

mesh! driftaet, and salmon and trout driftnet fisheries on the higl� Fisheries Agency, 1990!. These are licensed or Permitted fisl,authorized by the Minister of Agriculture, Forestry, and Fisherysubject to regulations over matters such as prohibited fish;ng agem used. The method is to harvest surf~e swimming fhh by b,inenmeshed into or entangled in nets drifting at sea.

In 1978, the squid driftnet fishery started to catch "Akaika" neon flying squid! which is distributed thinly and widely on the gigaseas in the North Pacific, and became a permitted fishery by tgqMinister of Agriculture, Forestry, and Fishery in 1981. The net dept'is around 10m, while the width is about 3-Skm per unit. Dependingon the size of the vessel, 4-10 units with an interval of seve~[hundred meters between units are shot. Mesh size is about ]]3-118mm. Shooting the net starts in the afternoon and hauling begi+just before sunrise the next morning.The numbers of permitted vessels was 463, second to the tung

longline fishery among distant-water fisheries, in l988. The averagevessel size is 234 gross tons GT!, ranging from 59GT to 500GT, About8,000 fishermen depend on this fishery. ln 1988, the annual catch of"Akaika" was 130,283 tons, or 19% of the total squid production, andyielded 38.9 billion yen. "Akaika is large �-4kg!, and its meat is softand thick. Therefore, it is suitable for processing while there is aosubstitution at present. Further, the present squid angling techniqueis not suitable to catch this species economically due to its thin andwide distribution as well as dropout problems.The "Ohme" driftnet fishery has been practiced in coastal waters ia

Japan for a long time. At present, this fishery operates on the highseas in both the North and South Pacific. With mesh sizes of 170-180mm, this fishery aims to catch highly migratory species, such asalbacore, marlin, and skipjack, in surface waters. The number olpermitted vessels was 460 in 1988. The vessels range in size from10GT to 500GT. About 7,000 fishermen depends on this fishery. In1988, the annual catch was 40,083 tons and yielded 9.4 billion yen.About 25% of the albacore catch and 9% of the marlin catch are froNthis fishery, which is an important side job of fishermen engaging inthe squid driftnet, salmon and trout, and saury fisheries.The salmon and trout driftnet fishery consists of two types: t>~

mothership type and the onshore-based type. Both started in 1952 ~>~net depth is 8m, and the width is about 15km. The mothership tyINuses mesh sizes of 120-130mm as compared with 110mm of the on-

270

shore based type. Nets are shot in the afternoon and haulM as earlqext morning at two to four o' clock.In 1989, three motherships and 129 independent f'ishing boats

�27GT on the average! were licensed, but only one mothership and56 independent fishing boaS could operate due to the closure of majorfishing grounds in the United States' 20Q mile zone, Ab uf 2 300fishermen engage in this fishery, which is a very importa t side jobfor saury and squid driftnet fishermen. On the other hand, 157Oashpre based vessels were licensed during the same yearvessels range from 30GT to 127GT, and about 2,800 fishermen aregttgaged in this fishery.

International issuesImportant comments on driftnet fisheries at high seas

following Anonymous, 1990 and Fishery Agency 199Q!:

�! The driftnet fishery is a resource depletion type.�! Irreversible damages to resources may not be avoidable while

waiting, though the Japanese advocate scientific study tpconsider whether control of the driftnet fishery is necessary ornot;

�! Incidental catch problems associated with driftnet are greaterthan with other gear;

�! The rate of dropout is greater for driftnet than for other gear,'�! Driftnet results in ghost fishing; and�! It is questionable to use extremely long nets ranging from 30km

to 50km.

The Japanese government answers these comments as follows Fish-ery Agency, 1990 and 1991!:

�! Driftnet fishing has been practiced for a long time all over theworld. The driftnet is a passive gear to catch only certain sizedfish which swim toward nets ia specified surface waters atnight. The amount of "Akaika" catch per night per vessel is onlyabout 5 tons, which is far from resource depletion. Further, theaccurate indicator of the impacts of incidental catch on re-sources is the ratio of the incidental catch to total stock size ofthe species, not the absolute number of the incidental catch;

�! Controls of driftnet fisheries should be based on a scientificbase. This means that it is important to manage the fishery morecarefully to avoid irreversible damages for the future, especially

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until a scientific base is established. For example, in the No rthPacific squid drif tnet fishery, the Japanese government has used4-5 research vessels every year for surveying the resource, andhas provided data to the International North Pacific FisheriesCommission and others for review by scientists. At presentthere are no comments on "Akaika" resource depletion. 0+incidental catch issues, investigations using on board observersfrom Japan, Canada, and the United States of America haveexpanded since 1988 and data have been analyzed. It is agreedamong these three countries to take appropriate treatments asneeded. The expansion of this fishery is currently controlled bythe permission system. In the South Pacific "Ohme" driftnetfishery, the Japanese government has been involved in resourcesurveys of albacore since 1989 and has stopped Japanese fishingduring the 1990/91 season.

�! Although incidental catches are unavoidable using any fishinggear and method, the degree varies widely with the fishinggrounds and the time, as well as the fishing gear and methodemployed. Thus, rational selective fishing is possible bycontrolling fishing grounds, seasons, and mesh sizes. As a resultof cooperative research among Japan, Canada, and the UnitedStates, it became clear that the incidental catch of salmon in thehigh sea squid driftnet fishery in the North Pacific was only0.0039% �2/1.86 million! and is negligible. Further, the NorthPacific driftnet fisheries use only 1.7% of the North PacificOcean as their fishing grounds,

�! The dropout problem is associated with not only driftnets, butalso other gear, such as hook-and-lines. Based on the scientificdata, this problem should also be discussed. During the 1989/90season, Japanese research in the South Pacific indicated analbacore dropout rate of about 896, which is not as high aspreviously alleged by critics.

�! On ghost fishing, the Japanese government prohibits netdischarge subject to punishment! and promotes fishermen'seducation to prevent running out of nets. As a result, a radio-buoy for positioning the net is attached with each net. Even incase of loss, a net becomes a solid mass within from severalhours to two weeks and loses catchability, according to bothindependent studies done by the Japanese and Americans. At

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present, a study on net decomposition is being carried out inJapan.

�! Due to exaggerations, driftnets tend to be regarded as "deathwalls" extending 50krn. The fact is quite opposite. Each vesselsets several units of nets extending 5-6km each, as comparedwith the coastal drift net extending 2-3km, popular in NewZealand and the United States. As the biological density in thehigh seas is much smaller than in coastal waters, impacts ofgreater fishing efforts in the high seas tend to be offset.

UD.- Japan agreement of 1991On the 25th of November, 199l, the United States and Japan reached

an agreement on driftnet issues to unify their attitudes toward theUnited Nations resolution 44/225 and 45/195 Anonymous, l99ld!.The new agreement includes two important points:

l! to reduce 50% of high seas' drift net catch by June 30th, l992;and

�! to implement a global moratorium of high seas drift-netfisheries by the end of 1992.

The impacts of this agreement on the Japanese, Korean, and Tai-wanese fishermen are large. Since the oil crises in the 1970s, these dis-tant-water fishermen were forced to change jobs by various politicalevents, including the extended maritime jurisdictions by coastal na-tions during and after the Third United Nations Conference on theLaw of the Sea UNCLOS-III!. The mobility of distant-waterfishermen now has become very limited. Although the current inter-national issues will be internalized into domestic issues of distant-water fishing nations, the real problem of fisheries resource manage-ment still remains, internationally as weH as domestically.

Ia fact, the scientific review of North Pacific high seas drift netfisheries held in Sidney, B.C., June l l-l4, l99l, based on the twoyears' data collected by scientific observers from Japan, Canada andthe United States, does not justify the moratorium of high seas driftnet fisheries Anonymous, 199l a!.

Technoiogy, Economics, and Scientific Base

Nets are the most effective gear to filter a bulk of water within ashort time and collect marine lives. This has been proved technically,economically, and historically. At present, there is no alternative more

273

effective than nets. Thus, nets will continue to be used in the future.though there is some indication that the major fishing gear in thetwenty-first century will be hook-and-lines rather than nets Satake.1990!.Current problems associated with nets, such as by-catch, dropout.

discard, resource depletion, gear conflict Matsuda, 1982; Matsuda1984; Matsuda and Kaneda 1984!, and ghost fishing could be greatlyreduced by selected areas and time, more effective aggregating andescapement devices, improvement in recovery of lost nets, preventionof intentional broken net abandonment at sea, and development ofdecomposing nets. Efforts to solve these problems have been made atvarious places.

By-catch and discard problems associated with shrimp trawling couldbe greatly reduced by the adoption of the finfish or turtle separatortechnique. This principle could also apply to other trawls, as well assquare mesh. By-catch and dropout problems associated with gillnetscould be greatly reduced not only by selecting areas and time, but alsoby gear design, thus requiring more field observation, By-catch andresource impacts associated with purse seining are difficult problems,due to the biological characteristics of targeted species and economicviability as compared with trawling. Reduction of gear conflict amongdifferent gear is more smoothly achieved by area and time zoning thanother ways.

Further, technical expectations differ with gear, even amongdifferent trawls, purse seines, and gillnets. Most gear such as nets,hook-and-lines, traps, and fish aggregating devices are, in somedegree, selective to specific targeted species. The effect on catchselectivity for the targeted species is greatly influenced by selection offishing grounds, time, and other auxiliary fishing gear in such a waythat the first selection is achieved by selection of fishing grounds; thesecond by timing; the third by aggregating fishing devices; the forthby degrees of intensity of illumination, baiting, and other devices; thefifth by major fishing gear; the sixth by sizes of mesh, hook, andmouth of traps; and the last by other escapement treatments. It is alsonecessary, however, to evaluate the impact of such selective fishingfrom the ecological point of view,Recent studies have focused on interactions between fish and fishing

gear and methods. According to Kawamura �984a!, all fishing gearand methods have take advantage of ecological characteristics of thetargeted species; that is efficient and rational. Primitive fishing gearand methods have been fading away because of short-run economicinefficiency, not because of technological irrationality. Time honoredtraditional fishing and fishermen's experiences provide the best

274

"museum" full of useful knowledge for behavioral scientists interestedin fishing gear and methods.

A combined system employing both traditional fishing methods andhigh technology in electronics has been developed in Japan K.awa-tnura, 1984b!. Using a sonar and remote control equipment, fish underfish aggregating devices are observed on shore, and fishing starts whenenough fish are gathered around the floating objects. This method willbe vital when the use of an electronics for this purpose is legally ac-cepted. Further, the development of mid-water floating objects as fishaggregating devices is important to reduce gear conflicts and by-catchproblems.

Economic incentives are another important factor in the adoption ofconservation-oriented technological advancements. The competitionbetween the skipjack pole-and-line fishery and the tuna purse seinefishery in Japan lasted for a decade or two, resulting in the adoptionof purse seines among the conservation-oriented traditional skipjackpole-line fishermen due to the economic viability, not conservation Matsuda, 1984!. Discard problems are also associated with economicincentives of fishermen, Non-commercial and/or less valued harvestas well as broken gear are not in the interest of fishermen becausethey add costs to them.

The economic environment, however, is quite dynamic as comparedwith the technical one, For example, energy saving devices weremeaningless before the oil crises in the 1970s, Until the first oil crisisin l973, nominal oil prices had been unchanged since World War ll.This means that real oif prices decreased inversely at the same rate ofinflation over about a quarter century. That is, greater use of oil re-sulted in greater profits during that period. The Japanese post-warfishery policy that emphasized more off-shore and more distant-waterfisheries development than coastal fisheries is justified in this sense.Since the oil crises and the universal acceptance of extended rnari-

time jurisdiction all over the worM in the 1970s, the economic envi-ronment surrounding fisheries has changed. Energy saving devices,coastal fisheries, stationary or passive gear, and conservation orienteddevices have been paid much more attention than before. ln additionto that, fish are a common property. World watch activities and com-munication networks have increased rapidly, and it has become diffi-cult to keep secrets in fisheries. Therefore, fishermen come to considerboth their long-term and short-term interests for their survival.

Demand is the key to determine the economic value of each fish species, size, and quality!. Demand for fish varies v.idely amongpeople, generations, places, and time. Fishing seasons generallycoincide with festivities, spawning seasons or migration periods. This

275

is because the demand is high or fish are easily caught. However, theresource impact of fishing at spawning seasons or migration periodsis quite high. Conservation measures are needed. Further, dietary pre-ferences for eggs and/or juveniles have a great impact on resources.Although people may change their taste and preference, they are quiteconservative, as long as their tastes can be met at reasonable prices.

Economic incentives are also controlled by groups and/or govern-ments. Restrictions on the activities of fishermen add costs to fish-ermen in the short-run, though it may bring benefits to fishermen inthe long run. New political actions may have an effect on distributionin which one group benefits but others may lose. Thus, new rules andregulations should be adopted after comprehensive understanding bythe fishermen concerned. Otherwise, they demand heavy compens-tion. As a result, it takes time to change rules and regulations. Never-theless, there is room for groups and/or governments to play a role inbalancing short-run and long-run interests.

Rational solutions, more desirable than emotional solutions, are notonly technical but consider also the socio-economic and political envi-ronment and the impacts of the solution. Therefore, a scientificapproach based on the facts is essential to make a rational decision.Every question on the matter should be satisfactorily answered to all,An. agreement between Japan, Canada, and the United States on theNorth Pacific drift net fisheries, reached in March 1990, is a steptoward the real solution on the issue Fishery Agency, 1990!. Thisagreement includes system of 59 observers from Canada and theUnited States and the requirement to carry a transponder on board alldriftnet fisheries vessels during the 1990 fishing season.

However, the U.S.-Japan agreement of 1991 is a political compro-mise, not scientifically based. We must count the social or admi-nistrative costs of such a political decision, neglecting scientific bases.The real problem is the matter of how to cooperate with each other tomake wise use of marine resources through the democratic politicalprocess and the free market economy. This is a difficult task and aweighty responsibility for our future generations.

Colclusloa

Problems associated with incidental catches, dropout, discards.resource depletion, gear conflict, and ghost fishing are very importantfor all fisheries in the future.

It is easier to minimize these probLems in some fisheries than inothers. However, these problems are quite complex and case specific.Therefore, it is necessary to cope with them rationally, based on the

276

facts and the best available scientific data. The high seas driftnetfisheries monitoring system, based on an observer system and the use+f transponders, will be of increased importance in the future. Thus,fishermen will be no longer able to fish alone on the high seas.

Good cooperation and international debate among administrators,fishermen, scientists biologists, behaviorists, and economists!,engineers, gear designers, and manufacturers, are critical. The realsolution to the problem is not a matter of the "decision by majority,"but a matter of mutual understanding of the problem.

There is a great potential for both environmentalists and fishermen~o work together to better the earth's environment. Fishermen couldbe vital as live monitors of the earth if their role as such is recognized<nd appreciated by the public.

Acknowledgement

The author wishes to acknowledge the Law of the Sea Institute andthe Ocean Association of Japan for providing me the presentationoPPortunity; the International Section of the Fishery Agency forProviding me various information; and Mr. Norio Fujinami of theFishery Agency and Drs. Tadao Kuribayashi, Keio University, andGunzo Kawamura, Kagoshima University, for their useful comments.

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Cooper, C. and Vf. Kickey, l068. Selective experimenta «1th aquare meah codenda ~150, 140, and E66eun, Proceedings: Worfd!~ipcuium o¹ Fisl¹¹g Gear a¹d F s1¹¹gDe ge 1%4 Marine Inatitute, Canada: 62-67.

Dickaon, %., 1Q88. "A aimulation model for cod gilinet effectiveneea', Proceeds¹gc' lVarfsfSpepcuiwm o¹ Fishing Gear a¹d Flslsi¹g Vagsel Deig¹ 1Qg Marine Inatitute, Canada: 60-66

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Fitapatrict, J., 1988. Fiahing technology, fiaheri» reaourcee and future demnrul,~Inlays' Worst S!NIposium o¹ Firhing Gear a¹d F4Qylg Vessel Dtsqp 198$ MnsioeInatitute, Canada: 1-8.

Fujiiahi, A-, 1QTQ. Catch aelectivity of bottom trawl nate', in CascA Qlecsil> of ++~4eN0aar, edited by The Japaneae Society of Scientific Fiaheri»: 7-24. In Japaneae!

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Kawarnura, G., 1984a. Discussion on Sehing methods hem Cbe behavioral poinC of view9: Spanish mackerel', Suisan~~skys Fishcria Raeanchj 8�!: 48-68. In Japanese!

Kawamura, G., 1984b. "Discussion on 5ahing methods from the behavioral point of view11; 5ah aggregating de vices", Suisae~l~!e Fidaezs Rcnmrebj 8�!: F 48-48. InJapanese!

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Matsuda, Y., 1984. "Legal, political, and economic constrainta on Japanese atrategiea fordistant-water tuna and slripjack flaheriae in Southeast Asian seas and the western centralPacific", Ma¹¹oie oj tht XaymMma Union'y Resrateh Crtutr fer tJCr South pacify@, 6�!:l6!-252.

Matauda, Y. and Y. Kaneda, 1984. 'The seven greatest 5eheriea incidents in Japan,h4'orkit¹c' lnsriauio¹s ie abc Wrjrar¹ Pacijk, Ruddle, K. and Ahinmichi, T., eds., SenriEthnological Studies 17: 169-!81.

McConnek, K.E. and Norton, V,J., !QTS. An evaluation of limited entry and alternativeapproaches to fisheries management, Paper presented aC the National Conference toConsider LirniCed Entry aa a Tool in Fisheries Management, July 17-19, Denver.

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COMMENTARY

Norio FujinamiSpecial Advisor to the Ministry of Agriculture,Forestry and Fisheries on International Affairs

Japan

ln the past thirteen years I have been engaged in fishing accessconsultations, mainly with the South Pacific island nations and chieflyfor highly migratory fish. I have also participated in internationalmeetings organized by the University of Washington, the PacificEconomic Cooperation Conference PECC!, the Forum FisheriesAgency FFA!, and the Food and Agriculture Organization FAO!, Iwish to comment on two papers presented in this session, based on myexperience not as a scientist but rather of a man engaged in adminis-tration.

The Garcia Paper

The Garcia paper provides a detailed and comprehensive discussionof the main species of the high seas. I must congratulate Mr, Garciafor his efforts and FAO for collecting and disseminating suchinformation. Several points that elicit special attention are;

I! The paper says the high seas resources are mainly straddlingstocks, at least during some period of their lives, and most of them arepelagic species.

�! The paper mentions that the potential of these resources ispoorly known.

�! Their rational utilization and conservation are lef t for interna-tional management.

�! This paper enumerated which species are considered high seasresources, listing cetaceans, tunas, and tuna-like species, salmon,sharks, mesopelagic fish living at 200 meter to 1000 meter depths, andAntarctic resources including krill, oceanic horse mackerel, Alaskapollack, pomfret, saury, and turtles. I have never seen this kind ofvery clear classification of high sea resources before; it is veryinstructive.

�! The history of the depletion of some whales may give a hintfor the management of other high seas resources.

�! Tuna and tuna-like fish are mostly fully exploited except forskip jack,

�! Squid resources can be further exploited.

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8! There is insufficient knowledge about sharks, and the lack ><interest of scientific community and regional fisheries bodies is ~matter of concern.

9! The potential of mesopelagic resources is very large. l0! The paper concludes that due fo the failure of research %improve the sustainability of fisheries, a! the EKZ may be expanded,or b! non-fisheries nation should be invited to join in internatioMcooperation. Point a! sounds a bit strange to my mind because FAGis an organization that promotes scientific research of the resources-I do not think the problem will be solved by expanding the EEZ, be-cause, as already mentioned by many speakers, even the resources in-side of the EEZ have been depleted because of the bad managementof the coastal states. Therefore, this kind of idea does not solve theproblem. On point b!, if non-fishing nations are invited, the matterwill be treated politically, not in a scientific way, according to ourexperience, as in the case of whales. Therefore, again, this is not, tomy mind, the right approach. This is a very simple commentary to Mr.Garcia's paper.

The Shearer Paper

Mr. Shearer's paper calls attention to several matters:�! The paper deals mainly with drift net problems, highly

migratory species, and marine mammals.�! The paper explains the articles of UNCLOS that regulate hig>

seas resources and stakes out the basic concepts on conservation andmanagement of the living resources of the high seas under Article S7,which prescribes freedom of fishing on high seas sub ject to the condi-tions !aid down by Articles 116 to 120. Actually, Articles 117 to l20provide requirements for international cooperation among nations thathave common interests in specific living resources of the high seas. Oathe other hand, Article 116 prescribes under item d! that all stateshave the right to engage in fishing in the high seas subject to interestsof coastal states provided for, inter alia, in Article 63, paragraph 2,and Articles 64 and 67. Here Article 63, paragraph 2 prescribesagreement between the coastal states and states fishing in adjacentareas as the major requirements necessary for the conservation of thestraddling stocks. Article 64 prescribes international cooperation be-tween coastal nations and disant water fishing nations concerningconservation and management of highly migratory species in Annex1 of the UNCLOS. Articles 65, 66, and 67 refer to marine mammals,anadromous stocks and catadromous species, respectively, and require

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international cooperation among the coastal and distant water nations.Incidentally, the responsibility of the coastal states with respect to

sedentary species in the high seas is prescribed in Article 77. The liv-ing resources of the high seas are limited but no less important thanthose in the 200-mile waters. The resources are appropriate for humanconsumption, and every effort should be undertaken to accomplish themaximum utilization thereof.

�! The paper, however, rightly points out the ambiguous natureof international cooperation prescribed under Articles 117 to I20.

�! The paper describes the driftnet operation of the high seas, re-ferring to the FAO consu/tation on large pelagic driftnets held inApril 1990. The driftnet is a fishing gear which is commonly used allover the world, especially in developing countries, as it does notrequire special skill to handle. The gear size varies from a fewdecimeters in length with about l m in depth to a few kilometers inlength with more than 10 m in depth, depending on the area ofoperation and the targeted species. The large driftnet has beendeveloped based on the experience of the small-sca!e driftnet, whichhas been used for centuries in various parts of the world, Thedevelopment of synthetic fiber nets has provided the opportunity toenlarge the size of the net in the 1940s. The large driftnet hastherefore been improved and used for salmon and squid fishing withthe 110 to 130 mm stretched net size as well as for tuna fishing with170 to 180 mm stretched net size. In the North Pacific, the incidentalcatch of the drift net, such as marine mammals, turtles, and sea birds,with a possible by-catch of salmon by the squid drif tnet, as weH as thedropout of the catch and the problem of ghost fishing, have beensubjects of serious discussion. It has been agreed, however, amongJapan, the U.S., and Canada to collect more accurate information onthe effect of the driftnet prior to a determination on whether thefishing gear should be banned, restricted, or improved. This approachseems reasonable and a similar approach should be made for anyfishing method in dispute, so that the common property of mankindof the high seas will be protected, conserved, and managed for theiroptimum and maximum utilization as prescribed and intended in theUNCLOS.

In the South Pacific, the problem of the large mesh driftnet foralbacore fishing has been raised recently by a few island nationsexpressing their concern about the possible depletion of the resources.A few South Pacific island nations took the matter rather politicallyand presented the case to the UN General Assembly in November1989. And the UN Resolution was adopted to impose cessation ofdriftnet fishing in the South Pacific region as an interim measure until

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out the fact that bycatch and discard of catch or dropout of catch areunavoidable- The escape device of various fishing gear gives a hint ofthe possibility of the contribution of gear design to the protection and«nservation of resources. Finfish separation of shrimp trawls is 80percent successful, as experience has shown, if the gear is properlydesigned But the paper also indicates that such devices need furtherimprovement as they are easily broken.

Coaclusioa

Finally, Ambassador Nakagawa, chairman of the first session,pointed out that the ultimate purpose of UNCLOS is to protect, con-serve, and manage marine resources. Now, mare than a decade haspassed since a majority of the countries adopted UNCLOS, but wemust question if the resources are really conserved, protected, or wellmanaged. 1t is true that UNCLOS gave the benefit to the coastal sta'tes.but lack af appropriate management by the coastal states led to the de-pletion of resources inside of the EEZ of some countries. With respectto high seas resources rnanagemen f, there are already conflicting viewsin connection, for instance, with whales and driftnets. The only matterunanimously agreed upon is the necessity of strengthening researchand collection and dissemination of actual information on theresources. Every effort should therefore be made to strengthenfinancial and institutional arrangements for research on the livingresources of the sea.

286

DISCUSSION

Joei Nadraiei~r. I am from Fiji, I wish to make a few observationson each of the speakers. First, I welcome the observations of Dr.Garcia. Fiji as part of the South Pacific Forum has found its negotia-tions with distant water fishing nations rather difficult in view of theconvenient reliance by the latter on Article l l9, that is, concerning thebest scientific evidence available, in order to delay resolution of prob-lems between the Forum and the distant water fishing nations. Thiswas a problem both with the United States and now, currently, Japan,

Secondly, the remarks about the relative failure of internationalmanagement are interesting. In our negotiations with distant waterfishing nations, the Forum countries' insistence on a multilateralapproach rather than through yet another international institution hasnot been welcomed. As stated by my colleague this morning, we findthis latter approach not only costly, but yet another means by whichour interests can be compromised if not subverted.

In relation to Professor Shearer, I confine myself to two observa-tions. The distinction in Article 3, paragraph 1 b! of the WellingtonConvention between "fisheries jurisdiction" and "jurisdiction" appearsto be deliberate. In the latter provision, the prohibition of transship-ment of driftnet catch would only apply in the territorial sea andcontiguous zone. This is borne out by paragraph 2 b! of Article 3,which refers to the prohibition of driftnet catch in facilities within theStates party to the Convention, As to the optional prohibition againstthe possession of driftnets on board any fishing vessel within areasunder states parties' fisheries jurisdictions, it appears that the signa-tories to the Convention adopted a broad approach to Article 62,paragraph 4 c! of UNCI.OS 1982, taking it to include prohibition ofpossession of the offending article. In the case of transit passage, orarchipelagic sea lanes passage, vessels would, of course, be allowed toproceed unimpeded. The problem is that there is often a fine linebetween transit passage and poaching by foreign vessels, particularlyas the rnicrostates of the Pacific are not likely effectively to policeutilization of the EEZ and archipelagic waters.

In Professor Matsuda's discussion of the position of Japan with re-ference to driftnet fishing being practiced all around the world, onehas to distinguish between the sophisticated and large-scale driftnetfishing practice of Professor Matsuda's countrymen in the South Paci-fic and the very small-scale instances practiced by fishermen in va-rious parts of the world. To overlook this distinction would confuse

287

the issue and legitimize the practice of driftnet fishing. Incidentally.this is also a point made by Fujinami-san.

Secondly, there is once again a reliance on scientific knowledgewhich, although yet to be conclusive, thus demonstrates that the useof the driftnet fishing technique has adverse implications for the con-servation of marine resources.

Finally, on Fujinami-san's commentary, the references to reactionby a few South Pacific island nations is misleading. The South Pacific,with the exception of the French territories, has adopted a united ap-proach on the driftnet fishery. Japan has found this unappealing,given its tendency to use division as a new approach in negotiation.Secondly, you have singled out a few South Pacific island nations inthe UN General Assembly resolution. I merely wish to point out thatthe U.S. also played an important part in sponsoring the resolution. Inother words, the unease of the states of the South Pacific is shared byother states as well.

Jobe Sprout. I will indeed be brief. I am from Hokkaido UniversityFaculty of Fisheries and Business Economics, and I would like toaddress my question to Mr. Garcia from FAO. You mentioned in yourtalk the pending need for international management of tuna and tuna-like species, and I would like to ask your brief opinion on the idealapproach and the ideal forum for such management and the role of thelaw of the sea in that forum.

Serge Garcia I mentioned that there were lots of problems ofcoordination between the tuna management schemes in the NorthPacific and the South Pacific, between the Pacific and the IndianOcean, and between the Indian Qcean and the Atlantic. The problemsare coming from the migratory fleets at least as much as from themigratory tunas, and therefore there may be a need for some coordi-nation between the various mechanisms, Dr. James Joseph hasproposed setting up a world tuna management system as part of theworld information database. I do not have any set mechanism topropose at this stage; neither does FAO. We would like to see morecoordination between the bodies, and that can be done. For example,FAO has been setting up joint working groups between bodies thathave nothing to do together, but at least they can discuss problems ofstatistics, reporting, or even stock assessment problems. We recentlyhad a joint meeting between the General Council on the Fisheries inthe Mediterranean and ICCAT on the problem of tuna fishing and

large pelagic fishing in the Mediterranean. I know that we need a lotmore initiatives like this on tuna. Not only on tuna.

JeJbe Crmea I think this afternoon's session highlights one of themajor problems that we face in coming up with a regime of the oceanwhich meets the needs of the environment and also meets the needsfor optimum utilization of the resource. That problem is our inabilityto deal with what I should call "political science" but to avoidoffending some very legitimate individuals shall call "science that ispolitical"; a large number of the issues that are raised with respect tothe ocean and the environment, for example, the term, "wall of death."It is most probable in terms of the total biomass of the ocean thatghost driftnet fishing increases the biomass of the ocean and is not awall of death but in fact a wall of life, It may be a very bad wall oflife in terms of the utilization of a certain species, but it may not bethe environmental disaster that is implied by that specific term.

This afternoon we heard many other terms of this kind, and weheard an excellent admonition of the necessity to get valid scientificdata before we leap forward with specific conventions on the oceanenvironment. I make this comment as a challenge to our whole corn-munity to not be stampeded in the future by well-meaning people whohave a very legitimate desire to protect the ocean but have almost noknowledge of the ecosystems and the physics and the environment ofthe real ocean in which we live.

Serge Garcia I wouM like to answer one of the major questions Mr.Fujinami put to me in his commentary. I have never proposed toextend EEZs; there must be a misunderstanding somewhere.

In response to the last intervention, the major problem is the rolethat non-fishery users must play in fisheries management. Nationalmanagement � what countries have done inside their EEZs � is notvery impressive up to now. International management also leaves a lotto be desired. For instance, biomass worldwide is probably below 25percent of the virgin level everywhere, especially on demersal re-sources of high value. The only stocks that are high are where the cli-mate is in our favor. Our knowledge of non-target species is just anocean of ignorance. They are being decimated, probably, in largequantities. %e just know nothing, so nobody worries. That in itself isa problem.

Environmental concerns are growing very fast. In l 992 we will seethe International UN Conference on the Environment and Develop-ment. People will look at two issues, above others, at the conference

and for the decade: One is sustainable development, and the other isthe conservation of species diversity. What do we mean by "sustainabledevelopment" and "conservation of species diversity"? In my paper Isaid that there is a tradeoff between the two in the sense that you mayhave to lose some species diversity in order to feed the people- Buthow much the people are prepared to lose in exchange for develop-ment has to be discussed and negotiated somewhere. Just as younegotiate quotas with newcomers, there are newcomers who are notfishermen and they may ask for their quota of the whole thing. Wheredo you discuss this'? Either the non-fishery-users in some way becomea part of the discussion in a fishery body or they are not part of thediscussion. If they are not part of the discussion, they are going toraise the problem in a much broader forum. Whether the discussion inthat broader forum would be in favor of fishermen, I will let youguess the answer, but my feeling is that if the environmental issuecould be discussed in fishery bodies it would probably solve a lot ofproblems for fishermen in the future.

%acio Feeenrwa I have reservations on what Mr. Garcia said aboutworld biomass being reduced to 2$ percent. The greatest predator of,say, North Pacific pollack, is not human. Pollack is the first, thencoma other species.

SESSION V:

DEEP SEABED MINING

EVALUATION OF DEEP SEABED MINING TECHNOLOGY:PAST, PRESENT, AND FUTURE

Masamichi FujimoriDeep Ocean Minerals Association DQMA!

Japan

Introduction

The development of deep sea mineral resources will play a veryimportant and significant role in the future development of Japaneseindustry. The demand for nickel, cobalt, manganese and other raremetals is rapidly increasing with the strong growth of high-techindustries. We are, however, relying almost entirely on imports for oursupply of these metals. Furthermore, the sources of these metals arerestricted to a very small number of countries and with large fluctua-tions in prices, the supply of these rare metals is indeed very unstable.On the other hand, deep sea mineral resources such as manganesenodules, polymetallic massive sulfide deposits, and cobalt-rich crusts&re very promising as a good source of stable supply,

Therefore, an international management system that would ensureorderly exploitation of these resources would contribute greatly to thedevelopment of the world economy and improvement of peoples' lives,aot to mention solving the resource problems of individual countriessuch as Japan. In Japan, we are keenly aware of the situation men-tioned above, and research projects related to the development ofthese resources have been pursued by both the public and privatesectors with the Ministry of International Trade and Industry MITI!taking the lead. The importance of deep sea mineral resources wasfirst recognized in the 1970s, at the time of the first oil shock," andresearch and development R8r.D! was already being conducted in boththe public and private sectors in the industrialized countries of Europeand the U.S. with results far in advance of those in Japan at that time,First, research on engineering problems related to mining manganesenodules was undertaken by the National Research Institute forPollution and Resources NRIPR! of MITI and the Deep OceanMinerals Association DOMA! which was organized and established bythe private sector. NRIPR has been engaged in studies on problemsrehted to mining and lifting techniques for manganese nodules whileDOMA has been pursuing basic studies on the total system ofexploration, mining, transportation, and metallurgy together withvarious other studies for effective development of this field.

293

Of the various development projects regarding deep sea mineralresources conducted by DOMA, RA,D on mining manganese noduleswas transferred to an organization newly established ia 1982, theTechnology Research Association of Manganese Nodules MiningSystem, and exploration has been carried out by the Deep OceanResources Development Company Ltd. DORD!, with public andprivate capital, DOMA is presently conducting basic studies on theexploration and mining of submarine hydrothermal deposits a+~cobalt-rich crusts. It has also started the development of metaOurgicaIprocessing of the manganese nodules.

DOMA comprises thirty-eight major companies in the fields «trade, non-ferrous metal smelting, steel, shipbuilding and heavymachinery, shipping, electric cables, and others. Technical personneIfrom these firms participate in the projects as needs arise. Similsrfirms are participating in the Technology Research Association ofManganese Nodules Mining System and DORD.

In December 1987, DORD registered as a Pioneer Investor and hadthe exclusive right to carry out pioneer activities in the pioneer areain accordance with Resolution II of the UN Convention on the Law ofthe Sea.

The RAD activities conducted in Japan, mentioned above, andfuture problems to be solved wiH be discussed in the followingsections.

Present R 4 9 Actlvlties

Exploration Technology

Exploration ActivitiesThe Mewl Mining Agency of Japan MMAJ! constructed a

geological survey vessel, the Hakgrei Mare in 1974. This vessel wasbuilt with the main objective of conducting marine geological surveysof the seas in the vicinity of Japan. The Geological Survey of JaPa GSJ! carried out survey cruises in these waters as well as basicresearch on manganese nodules in the central Pacific Basin. Sincel975, DOMA has been commissioned by MMAJ to conduct explora-tion for manganese nodules in the Clarion-Clipperton Fracture Zone C-C Zone!. And from 1980, this has been carried out with a surveyvessel designed for this particular purpose, the Hakurei-Mars 4'e-2-With the establishment of DORD in 1982, nodule exploration activitieswere transferred to this company from 1983. DORD has also beenprospecting hydrothermal deposits since 1985 and for cobalt-rich

294

crusts since 1987. The Japanese Government has also been carryingout exploration for manganese nodules, hydrothermal deposits, andcobalt-rich crusts in the waters of EEZ of South Pacific countries asa part of its Official Development Assistance ODA! program.

Exploration EquipmentA variety of highly sophisticated equipment is necessary for the

various stages of deep sea mineral exploration. Various organizationsin Japan are developing new equipment, including an ultrasonic devicefor continuous measuring of the thickness of cobalt-rich crusts, whichMMAJ has been working on since 1988.

Facilities on the Hakurei-Maru No. 2 inc!ude most of the equipmentnecessary for deep sea mineral exploration. They are listed in Table J.A modern Multi Narrow Beam Echo Sounder MBES! is beinginstalled, and when it becomes operational, it will enable exploratorywork to be conducted very efficiently.

Miming Technology

Status 0 f DevelopmentSince 1982, research and development aimed at future commerical

exploitation in manganese nodule mining has been actively carried outas part of the National Research A. Development Program popularlyknown as the large-scale research project! of the Agency of IndustrialScience and Technology AIST! of MITI by the Technology ResearchAssociation of Manganese Nodules Mining System and NRIPR. Thedevelopment of each element of the necessary technology has beencompleted, and a pilot system for on-site mining testing is presentlyunder construction.

Mining experiments will probably be carried out during the 1990sin the Japanese sites. We consider this mining test to be very importantbecause it is expected that these experiments will not only contributeto developing the technology to mine manganese nodules but will alsoprovide valuable basic data regarding technology for extractinghydrothermal deposits and cobalt-rich crusts.

Nining TechniquesMany types of mining techniques have been devised in various

countries and actual tests have been carried out using some of thesemethods. Mining techniques and methods in Japan are shown in FigureI and REcD is mentioned below.

295

Total SystemStudies are being conducted on a total pilot system including aN

experimental vessel, and then a program will be designed for pil&scale mining testing.

Propulsion, rolling and pitching characteristics, and maneuverabilityof the pilot vessel have been analyzed through simulation and modeltests in water tanks.

The objective of the studies on the total pilot system was tocoordinate RAD for all the subsystems, which will be discussed below,and thus establish an optimal system. The basic design for the toWsystem was decided upon based on the results of the above studies,including the simulation of the integrated dynamic behavior andmining characteristics.

The tests and measuring instruments necessary for achieving th+'above objective were scrutinized and are incorporated in the program-

Collector SystemA Auid dredge system wiB be used, RAD efforts have been w«kin@

to develop a towing technique whereby manganese nod<les arefficiently collected, sediment is separated, large grains are crush~.and nodules are quantitatively fed into the lifting system.

Thus engineering techniques for collecting sea floor sediments were'studied together with various experiments on collecting, separating,and crushing, and quantitative feeding and simulation of collectingand motional characteristics have been made.

Ll fting SystemThe major components for this part of the process are: pump lift

equipment, air lift equipment, and pipes, which also act as the towiogwire of the collector.

Pump lift equipment is set at water depths of 1,000 m and 2,000 a-lt lifts the ores by means of a multi-stage slurry pump. Flow charac-teristics of large-grained solids in the pipe must be analyzed and th+development of reliable and sturdy submersible pumps and a largo-capacity submersible motor are prerequisites for development of thi5system. Thus the flow characteristics of a solid-liquid two-phase flu>4in vertical and inclined pipes and the crushing characteristics ofmanganese nodules were studied. Durability tests of the components;experiments on clogging, loosening, and reflowing in the pipes; aa4simulation of water hammer and pump characteristics were aLsecarried out. Based on these results, ore-lifting experiments wereconducted in a 200 m deep vertical water tank constructed at NRIPR.

The air li ft operates without moving parts underwater «nd it is thusvery durable. It is, however, important to establish operationalmethods and various factors such as optimal air-injection, the flowcharacteristics of an air-liquid-solid three-phase fluid, and thebehavior of the fluid during the transitional phase.

For example, starting and stopping wiB have an important bearingon efficient operation. Therefore, among other things, the three-phasesteady ore lifting characteristics were simulated, separators for thethree phases were selected, experitnents were carried out on back-pressure recovery, which holds the key to efficient operation, and alsounsteady lifting characteristics were simulated.Ore lifting experimentswere carried out in the 200 m deep tank mentioned earlier.

The li fting pi pe system is mainly composed of 5 km long super hightension steel lifting pipe made up of many connected pipes!, with a300 m long tensile flexible hose inserted between the steel pipe andthe collector and finally a stabilizer to prevent vibration of the pipefrom the Karrnan's vortex street formed by towing. The structure,material, and welding methods were tested and selected; the strength,metal fatigue, and abrasion level were tested; and the dynamicbehavior of the pipe system was simulated.

Regarding the handling system, the objective is to develop a systemfor safely and efficiently lowering, raising, and storing equipmentsuch as the collector, lifting pipe, and pumps. Also the system mustprotect the pipe from the rolling and pitching of the vessel andsecurely suspend the equipment. Tests and simulation of the damagelevel for the rolling and pitching were made. Equipment transportationand handling operations were tested on a large shaking table,

The development of the measmemenl control system consisted ofRID for an electric power supply to submerged equipment, underwa-ter measurements, transmission of signals to and from underwaterequipment, underwater positioning, and forward watching sonar, andalso ROD for software for conducting mining tests efficiently andsmoothly. The major components of this system are underwater cables,data transmission, data processing, control and underwater acousticsystems. Each element of the necessary technologies for these systemswas repeatedly tested, optical fiber data transmission were tested at adepth of 5,000 m in the waters off Shikoku, and observable distanceand resolution of the forward watching sonar were tested at SagarniBay.

297

Asstssmmt of Environmental ImpactImpact on the marine environment by manganese nodule m>+~ g

must be assessed quantitatively in order tp consider ways to Preventpollution.

Project DOMES Deep Ocean Mining Environmental Stll<V!conducted by the U.S, Government from 1975 to 1980 provided ve yimportant data regarding environmental protection. The mining te>>~ho~ever, were of a limited duratipn, so the results do not nece~"Vinclude all the factors that affect the marine environment-

In Japan, the Industrial Location and Environmental Protec'<io+Bureau of MITI initiated in 1989 a program to survey the environ-mental impact of manganese nodule mining. The aim of this prog~is tp establish the methodology fpr assessing the environmental impactand to formulate guidelines that would serve in helping to preventmining pollution.

In the above program, environmental assessment, construction ofappropriate models for estimation of fluid dispersion, and on-sitemonitoring were entrusted to MMAJ. The on-site monitoring will becarried out together with the experimental mining, and vari<tIsconditions are planned to be measured one year before, during, sixmonths after, and one year after the mining tests at the site.

kfetalhugyRegarding the metallurgy of manganese nodules, DOMA carried au<

a theoretical study from 1980 to 1982, and now we have an under-standing of the basic metallurgical aspects of the process. About thattime, NRIPR conducted studies mainly on the hydrochloric acidleaching process. Research was also done at some universities, but ~examination of economic considerations and a comparison with otherprocesses have not been made.

Commissioned by MMAJ, DOMA began a metallurgical researchproject in 1989 with the objective of developing an economicallyfeasible metallurgical process. The work plan for this project is shawmin Table 2' and the major promsses with available data are listed i>Table 3 and Fjgures 2-7.

Manganese nodules are characterized metallurgically in this manner-%'ater content at 30 percent is very high. Copper and nickel arehomogeneously distributed in the nodules.

Because of these characteristics and from an energy-savingviewpoint, the hydrometallurgical process was previously consideredto be beneficial. But as energy costs have stabilized recently and sincethe processing of metallurgical wastes has become an important issue.

298

Future Problems

Major problems regarding RA,D on manganese nodule extractionrelate to technological difficulties and financial constraints,

The following difficulties have been encountered in marinetechnical development

a. Equipment must be able to withstand high water pressure;b. Light penetration is low and visual operation is impossible

over long distances;Communication by electromagnetic waves is impossible;Communication by sonic waves is inferior in terms of speed,distance and accuracy;

e. Marine environments are diverse, and water resistance,corrosion and other factors must be considered.

C.

d.

Because of these difficulties, the following are particularlyimportant for exploration and mining of deep sea mineral resources:

Understanding of the precise conditions of the sea floor anddevelopment of equipment for this purpose;Development of equipment, durable enough to last throughoutlong-term commercial production;Enlarging the scale of operations for commercial production;Preparation of countermeasures to be used in emergency situa-tions at sea.

C.

d.

atm.e Problems ia Explorative Technology

Detailed Sea Floor TopographyThe morphology of the sea Aoor where manganese nodules,

submarine hydrothermal deposits, and cobalt-nch crusts can be foundis very complex. Thus it is necessary to develop a way of obtainingdetailed three-dimensional information on this very complex topogra-phy in order to evaluate the deposits, to plan mining operations, andto exploit the resources. At present, equipment such as MBKS and SideScan Sonar SSS! Sea MARC! are available for these purposes, butdevelopment of equipment with greater capacity is desired.

pyrometallurgical processes are also now considered to have potential.Thus, it will be necessary to consider methods for both efficientlyrecovering useful metals from the nodules and processing the wastes.

Sampling Equi pmentIt is speculated that the thickness of submarine hydrotherm

deposits is on the order of several meters to several tens of meters Forevaluation of these deposits, samples representing the whole v«t'~sections are necessary. On the other hand, the thickness of cobalt-r'chcrusts is on the order of several centimeters, and an ordinary ro"ydrill would possibly lose the most important crust. Thus sampling wi+high core recovery and reliability must be developed. Also develo P-ment of sampling devices which can be combined tp measure thicknessand can collect samples from many locations with relative ease isessential for accurate evaluation of cobalt-rich crusts with varyingthicknesses.

Future Problems in Mining Technology

Development of a Durable Material, Parts and Equr'pmentFor stable commercial production, the mining machinery must be

able to withstand underwater submersion for long periods of time-Underwater changing of parts and the time it takes needs to be'considered. Thus the development of material and parts which areresistant to abrasion, corrosion, and wear is a common problem forcutters, flexible hoses, pipes, pumps and all equipment.

Development of Operation and Control jor Mining MachineryThe following are expected to play a vital role in operating and

controlling marine mining machinery.'

a. Lowering heavy mining machinery from a rolling and pitchingvessel while controlling the handling of the equipment andsoft-landing it on the sea floor,'

b. Distributing and maintaining equipment in appropriatelocations under low visibility conditions so as to avoid prob-lems with the cable and machines.

Conc4sloos

The above is a technical review of the present status and problemsregarding deep sea mineral resources development. Major socio-economic problems that need to be solved before developing theseresources are summarized as follows:

a. Sufficient personnel and others necessary for conductingRAD;

300

b. Protection of marine environment;c. Establishment of an international order for marine resources

development

a! In Japan, the companies participating in deep sea mineralresources development are actively supporting the work by DOMA,Technology Research Association, and DORD. For these companies,however, recognizing that the universality of the development regimeuader the Convention has aot been ensured yet, aad also consideringuacertainties regarding actual mining aad the risks involved, the costof deep seabed RAD is considerably greater than that ia other fields,and thus the return on investment cannot be estimated.

Also for RRD in this field, it is necessary to have technicalpersonnel from many high-tech fields.

b! Environmental protection will inevitably become an importantissue when these resources are developed in the future. Manyproblems are inherent to the marine environment; they are quitedifferent from those we face on land. Therefore, expenses forenvironmental protection are expected to consume a considerableportion of development costs and wiH determine the future outcomeof these projects. The study of the impact of resource development onthe environment has begun in some areas, but enhancing these studiesand establishing environmental criteria are of vital importance. Alsodevelopment of pollution preventing technology and related knowl-edge is necessary.

c! Exploration for and RkD related to deep sea mineral resourcesinvolve loag-term projects extending into the twenty-first century.They are of great importance and should be promoted steadily duringthe 1990s. In order to ensure the smooth and harmonious developmentof these resources with the environment in the next century, Japanrecognizes the necessity to improve the framework of the law of thesea, which internationally governs these activities. In particular, theexcessive obligations accompanying resource development are a majorobstacle for developers, causing them to lose interest in exploratoryactivities. We feel strongly that this situation should be modified to amore reasonable level.

301

Figure l

I llot Mlnlag System of Manganese Nodules

302

Figure 2

Scbemat!c Figure of Ammoaia Leacbing proces

iirductant

Air

Residue

Raffinate

Co

303

Figure 3

Schematic Figure of Cupriou Process

Manganese Nodules

CO

COa Air

Residue

Raff enate

Co Mo

Figure 4

Schematic Figure of Cblor40zimg Leachiai Process

Residue

JCU

Raff inate

305

Figure 5

Schematic Figure of Sulfuric AcidPressure Leachiug Process

Manganese Hodule AirH,SO,

Res endue

Fe Reeova I

Raffi nate

Co

Figure 7

Schematic Figure of Hydrochloric AcidLeaching Process

~IICI

~ ~Fe .1

308

Table l

Major Prospecfiai Eqnipmyn fon Hakarer-Mane No. g

ResourcesSurvey

IteasEquipient In-

aodulesDep.Sydro-therial

0 0

0 0

NNSS 0

GPS 0

PM i tioning

0 000 0 00 0

Sathyaetry

0 0

IBES 0Sea floor

topography0

5ea floor

geology 0 0 0SSS

SBP

0 00

Saapliag 0 00

Sea floor

observation 0 0

CTD 0Sea wa!er

0 0

309

Navy NavigationSatellite Systei

Global PositioningSystem

Loran C

TransponderNarroI Beaa

Sounder

Precision DepthlIecorder

multi-narrow Bean

Echo SounderIulti-frequencyExploration Systea

Side Scan SonarSub-bottoa ProfilerAir Gun

Proton YagnetoeeterFree Fall GrabDredge BucketSediment SamplerFinder installed

Poser Grab

Continuous Beep SeaCaaera

Finder aountedDeep Sea Camera

Conductivity. Temperature, Depth Systealater Saapling Bottle

lhta Data ProcessingProcessing Systea CPU!

< Being installed

0 0 0 0 0 0 0 0

' 0

I i Ith

Pr IeCtC th

'DIh m CRO-O O.O.

OCJQ a

a CJ IPlg

IIJ CIh O CIR~-O th

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A 0» 0

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t

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4

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7 ~ I

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OI

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a ththCt

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CP 0 C~ hCP I JOCJI O 'Cla m

i~ÃgX '» CJ CJ

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5~oOCC

IJICCP th0

QCJ7 O IPCJI4t

4» aa I

C 44th4 CO

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CPI

CP ~ I CJ COth vO

~ J JCIa Cl

Ct

CJ

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th Cta

ar 4go CC

ht

yl 4 V

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v>c a o

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88-a 'O IP

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'W 0 thOO OO ClIh CP'V Ct I

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ld'CItt CJI~ I4t CJa IO

Tab/e 3

Major Smelting Processes

Ie ta 1 surgy Process

!

I Crushillg redllc ing leachinghaeooiua carbona te

leaching process solvent extraction � electrovinning

recovery order Ni~u!

Surfuric acid pressure ' Crushing � pressure leaching � p8 control�

leaching process solvent extraction electrovinning

recovery order: Ni~u!

recovery order: Ni~u!

Crushing � drying � saelting � pressure leaching�

electric furnace! sulfuric acid!

solvent extraction � electrosinning

recovery order: Ni~u!

Seel ting process

Hydrochloric acid Crushing hydrochloric acid leaching ~ solvent extraction

!caching process � elect rosino ing

Chloride i Crushing � drying -- chloridization leaching

leaching process � solvent extraction � electrovinning

COMMON HERITAGE QF MANKIND; A CONCEPT OFCOOPERATION IN OUR INTERDEPENDENT WORLD?

Levan B. ImnadzeInstitute of World Economy and International Relations

USSR Academy of Sciences

There appears to be no exaggeration for me to say that the comaloaheritage of mankind concept has proven to be one of the mostsweeping and radical legal concepts that have emerged in recessdecades. For many years now the concept has been under negotiatioaat multilateral fora, including the PrepCorn for the InternationaISeabed Authority and for the International Tribunal for the Law ofthe Sea, incorporated in resolutions adopted by the UN Gene~Assembly, and specified as a standard-setting provision in the 1982UN Convention on the Law of the Sea as mell as in some otherinstruments. Nobody so far, ho~ever, has been able to provide adefinitive answer to the question of whether the common heritage ofmankind concept will go down in history only as a speculative conceptand an exciting experiment in theoretical research, or whether it wiIIbe translated into political and legal reality.

As regards operations on deep seabed areas at least, there are twaformidable hurdles to be cleared, if the common heritage of mankindconcept is to emerge as an effective rule of international law. I arguethat the two hurdles are not inherent in the concept itself. Rather theystem from the efforts to put the concept into effect as a standard, andthose efforts are hamstrung by highly heated political debate. The firsthurdle is weH-known and results from the conflicting approachestaken by industrially advanced and developing countries in North andSouth to the concept of rights to mineral resources in the Internation&Seabed Area and to specific elements in legal instruments regulat>ngthe exploitation of such resources.

The second hurdle manifests itself less conspicuously and, as aresult, has failed to attract adequate attention in the international as'academic communities. Its background is as follows. On the one hand.the human race is interested in harnessing a new source of minerals iethe Area. But, on the other, man shows a keener interest, or I wooldsay a vital interest, in maintaining the quality of the marine environ-ment and in rendering seabed operations sound and harmless to theworld ocean ecosystem. This, I think, is a special historic respoasibilityshouldered by today's generation of people.

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In the light of this second hurdle, provisions of the Conventionappear to be inadequately balanced, Indeed, Part XI assigns a fairlyappreciable priority to the industrial exploitation of deep seabedmineral resources by placing the international legal mechanism thatregulates seabed operations in the service of a new extracting industryexpected to be built and to expand as early as possible. I may drawyour attention at least to the fact that regulation and expansion ofactivities involving the industrial exploitation of polymetallic nodulesare dealt with in a few dozen articles in Part XI and relevant annexeswhile issues relating to the conservation of the marine environmentand the sound exploitation of resources are described in only five orsix Convention articles.

But this is not what matters. One can hardly fail to notice that theconventional mechanism regulating operations in the Area is clearlygeared to an increasingly large-scale mining of minerals, as is evident,for instance, from an examination of Article 150, which specifies themajor policy objectives relating to activities in the Area. Part XI andrelevant annexes stipulate the basic guidelines for resource activitiesin the Area and regulate in detail such issues as access to resources,exploration and exploitation of resources, reciprocal rights andobligations undertaken by the Authority, member States, the Enter-prise and contractors, the administrative, technical, operational, andfinancial terms of contracts, settlement of disputes arising out ofresource activities, and the competence of the Authority and its bodiesin this field, afnong other things.

The case is absolutely different with the safeguard regarding theintegrity of the world ocean ecosystem when activities are conductedin the Area and with the security of the marine environment when itsresources are mined. As regards such issues the Convention confinesitself to avowing some most general principles and criteria, which aremostly declaratory in the absence of specific legal mechanisms neededto translate those in reality and specifies � in most general language,too � the relevant competence of the Authority's Council and that ofone of its commissions. The Authority is entrusted with the bulk ofresponsibility for elaborating, approving, and verifying compliancewith environmental rules as well as for issuing emergency orders anddeclaring certain areas of the seabed off limits as nature preserves. Itis only natural for one to express one's doubts as to how effectivelythe Authority will be able to perform its functions in safeguardingenvironmental security in the Area if one considers the fact that theAuthority wiH be directly involved in industrial activities conductedto mine the Area's resources and will have a vested interest in itsgrowth.

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At the same time, it is assumed that the international mechanisms,rules, and standards that are called upon to safeguard, in practicaIterms, the Area's environmental security during resource miningoperations are to be elaborated and approved some time in the futurewithin the framework of the Authority. In other words, the Conven-tion acts on the assumption that, pending elaboration and putting intoeffect of environmental criteria and requ.irements, it is sound andfeasible to launch preparations for the industrial exploitation of theArea's resources and even to go as far as to start mining operationsthemselves initial mining contracts may be awarded within a yeastafter the Convention enters into force!. It should also be pointed outthat the spirit of those Convention provisions boils down, in fact, tapreventing and controlling pollution in the marine environment as aresult of activities in the Area, while what we should address is thebroader problem of how to prevent damage to the world ocean ecosys-tetn and to render seabed activities environmentally secure.

It stands to reason that most of those shortcomings could be obviat-ed by the PrepCom that has just begun to discuss the package of envi-ronmental rules. But I maintain that our approach to those rules mustdiffer in no small measure from that provided for in the Convention,for our principal objective is to render seabed activities absolutely safein environmental terms rather than confine our efforts to preventing«nd reducing poHution produced by exploration and exploitation.

If we are to attain this objective, relevant Convention provisionsshouM be adapted accordingly, enlarged substantially, and, perhaps.adjusted. But will that imply that we will have reneged on, or eroded.the common heritage of mankind concept? No, not at all. On the con-trary, in so doing, we will have given the fullest effect possible to thehumanitarian essence of the common heritage of mankind concept, forit entails equal rights and equal responsibility for all nations as regardstheir common heritage of the seabed and the resources thereon, re-sources that can be preserved only by joint efforts for future genera-tions of people.

Therefore, environmental security as a criterion in mining mineralresources or in conducting any activities on the seabed is one of thebasic and organic components of the common heritage of mankindconcept. It will take time, effort, knowledge, and expertise for us tahave it stipulated as a standard-setting rule. There is no doubt abotafthat. Meanwhile it shouM be pointed out that have yet to produce anaccurate picture of all immediate and remote aftereffects of man' sactivities in exploring and exploiting polymetallic nodules, not tamention other resources on the Area, aftereffects that may be harmftsI

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to the marine environment and to the world ocean's integral andfragile ecosystem.

In this connection, I would like to say that we may stiH bide ourtime because the existing economic environment for resource miningin deep seabed areas is described -- and rightly so -- as highly ad-verse and leads us to believe that commercially viable mining in theArea may be commenced only fifteen to twenty years from now. Oversuch a span of time we will have studied in depth the host of problemsrelating to environmental security for seabed operations and also willhave removed the differences inherent in the Convention provisionsthat directly govern the exploration for and exploitation of seabed re-sources. I will take the liberty to point out that it would appearreasonable even to freeze some of those provisions in an effort to pavethe way for the Convention to go into effect and for all States toadhere to it pending resolution of the problems that arise out of PartXI.

Such a solution and I believe it is one of the likely solutions, butnot the only one! would in no way come into conflict with thecommon heritage of mankind concept, for it would be absolutelywrong to reduce the concept to some or other rigid structures installedto manage the Area's mineral resources and to regulate specific aspectsof their exploration and exploitation. An analysis of the fundamentalprovisions embodied in Part XI of the Convention makes it possible toidentify the main elements of the cornrnon heritage of mankind con-cept as the conventionally approved general principle basic to regula-tion of activities in the International Seabed Area. These elementsprovide for exclusively peaceful and environmentally secure uses--for the benefit of all mankind and with special regard for the interestsof developing nations -- of the spaces and resources of the Interna-tional Seabed Area, which constitutes the common heritage ofmankind and is put by States to common use and is managed interna-tionally to the extent it applies to the exploration for and exploitationof mineral resources! by the International Seabed Authority, aninternational organization established specifically for that purpose.

Therefore, alongside all the other principles mentioned above, theinternational management of activities on exploring and exploiting theArea's mineral resources is part and parcel of the common heritage ofmankind concept. That, however, does not imply that such manage-ment may and must be carried out by means of specific irnrnutablestructures that are there to stay for good, like those stipulated in PartXI, let alone those that result from some stern and one-sided interpre-tation of its provisions. I strongly believe that we would be able totranslate the common heritage of mankind concept into reality and to

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render it flexible and efficient as it needs be, if we abandon the rigidmanagerial structures that have failed to stand the test of time andhave come into conflict with the existing economic and politicrealities, and if we renounce our dogmatic interpretation of relevan<provisions in the Convention. It is only against such a background thatthe common heritage of mankind concept would be able to play therole for which it has been devised and to become a means for coor-dinating the interests of States rather than a target for confrontation-Only then will the concept become that of cooperation in ourinterdependent world.

In making such a statement, I anticipate some objections that sLfelikely to be voiced to the effect that since the Convention provides forspecific mechanisms for managing activities in exploring and exploit-ing the Area's resources, those mechanisms may, if at all, be revisedonly after the Convention has gone into force and according to theprocedure set forth therein. I do not believe that this tenet proves aninsurmountable obstacle, provided there exists a genuine political millto impart viability into, and practical effect to, the common heritaeeof mankind concept and hence, a legal order governing the worldocean on the basis of a universal treaty.

I have pointed out below that, given such a political will, we wouMbe able to agree to freeze some provisions in Part XI, and/or draft Isndapprove provisional rules that will remain in force until we haveascertained all prospective environmental implications arising out ofseabed activities and worked out relevant requirements needed tocarry out such activities prior to the emergence of the right environ-tnent for commercially viable mining operations in the Area. It ap-pears to me that it would be advisable to freeze some provisions iaPart XI concurrently with the enactment of provisional rules to govereactivities in the Area. The rules would, inter alia, serve to adjust theAuthority's competence so that it should shift its focus over to activi-ties in expanding and coordinating environmental cooperation. On theother hand, there is still a lot of mileage left in adapting provisions iaPart Xl and its relevant annexes to the changes affecting the politicaland especially the economic environments. The job could be done inpursuance of the PrepCom's mandate by drafting the rules, regula-tions, and procedures that should render the Convention's provisionsuniversally applicable and acceptable to all groups of States whileclarifying and adjusting the interpretation of those provisions. Whendraf ted, such rules, regulations, and procedures would help obviate thedifficulties engendered by Part XI and implement the common herit-age of mankind concept on the understanding that their legal effect

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will be on a par with that of the Convention s provisions for instance,by means of signing and ratifying a special multilateral protocol!. Atthe same time, it should be emphasized in particular that such aaadaptation of Part XI will not call for a formal revision of, andchanges in, the Convention's provisions in an overwhelming majorityof situations.

For example, the strong and valid misgivings that the Authoritymay arbitrarily restrict access to the Area's resources on account of itsexcessively great discretionary powers may be allayed by way of plac-ing tougher legal restrictions on the Authority's competence and of-fering a guaranteed and ready access to exploration for and exploita-tion of the minerals to any qualified entity acting in good faith.EquaBy, if drafted in addition to the decision-making mechanismsprovided for in the Convention, such mechanisms would rule out theunsound and unacceptable financial decisions imposed on States Par-ties, in particular, on major financial contributors, thereby helping re-move the risk of unpredictable financial implications for their partici-pation in the Convention.

Since financial implications arising out of adherence to the Conven-tion prove to be one of the major problems that stem from Part Xl,the rules, regulations, and procedures under discussion should payspecial attention to ways of establishing an economicaHy sound andacceptable ceiling on the financial obligations States Parties andcontractors will be undertaking.

First of all, realistic assessments suggest that we renounce thebuilding of large-scale integrated industrial works to be operated bythe Enterprise and entailing astronomical and wasteful expenditure.This is not to say that we will start revising the Convention, for theEnterprise does not offer the only chance to the Authority to partici-pate in the commercial exploitation of the Area this serves as a basisfor the Nucleus Enterprise currently under discussion in the Prep-Com!. Nothing prevents us from considering the two alternativesenvisaged in Article 151 and selecting feasible mechanisms devised tomake up for likely damage to the national economies of developingland-based producers and to rule out the institution of universalmandatory compensation funds. The apparently excessive amounts ofpayments to be made by contractors to the Authority may be reducedby a would-be mechanism installed to guarantee financial incentivesto contractors when their profits drop below a specified level. Such amechanism would be fuHy in keeping with Article 13, paragraph l4,of Annex Ill.

Since I am pressed for time to go in greater detail, I will only pointout that no revision of the Convention's provisions appears necessary

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for solving the complicated Problem of technology transfer as well ~a number of other issues, in particular, by initiating relations of co-operation, not those of subordination, between the Authority and con-tractors. At the same time, several provisions in Part XI stand li«+likelihood of improvement by way of adapting themselves to new andnewly recognized realities. I am referring specifically to productionquota limitations in the Area Article lSl! and to the procedure fo<introducing amendments in Part XI and its relevant annexes Articl+155!. I argue that they ought to be revised, or frozen for the purPoseof subsequent revision after the Convention has entered into force-

Coupled with an examination of all the other problems raised by'Part XI, this point leads me to conclude that they are amenable to themost successful resolution by means of combining such measures Wfreezing some provisions in Part XI, drafting provisional rules for anumber of problems, and adapting Part XI in the Authority's rules,regulations, and procedures. Universally acceptable solutions to boproposed within this framework should become a subject for as broada dialogue as we can possibly conduct, a dialogue that people increas-ingly insist on and that is called to translate the common heritage ofmankind concept into practice of international relations as a tool ofcooperation in our interdependent world and to render the Conventionuniversal as a basis for a global legal order in the world ocean.

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REFLECTIONS ON INSTITUTIONAL ASPECTSAND HOW TO FACILITATE

UNIVERSAL ACCEPTANCE OF THE CONVENTION

Mumba S. KapumpaChairman of the Delegation of Zambia

to the Preparatory Commission

ln reflecting on institutional aspects and how to facilitate universalacceptance of the Convention, I shall look at the various strategies thatwere employed during the negotiations which resulted in the Conven-tion. I shall also look at the way the PrepCom is resolving problemsrelating to the implementation of its mandate, I shall then attempt todetermine whether in such negotiating techniques there may be roomto resolve the issues surrounding the Convention in order to facilitateuniversal acceptance of this very important international treaty,

The UN General Assembly at its 2169th Meeting on 16 November1973 approved what has been referred to as the "Gentleman's Agree-ment" made by the President of the Assembly covering the proceduresby which it considered the Third UN Conference on the Law of theSea should take decisions on substantive matters.

The Conference approved the proposals and endorsed the President'sdeclaration at its 19th meeting on 27 June 1974, The declaration nowappears as an Appendix to the Rules of Procedure of the Conference.

The declaration reads thus:

Bearing in mind that the problems of ocean space are closelyinterrelated and need to be considered as a whole and the desir-ability of adopting a Convention on the Law of the Sea which willsecure the widest possible acceptance, the Conference should makeevery effort to reach agreement on substantive matters by way ofconsensus and there should be no voting on such matters until allefforts at consensus have been exhausted.'

In this declaration, therefore, lies the fundamental principle on thepreparation, negotiation, and adoption of the UN Convention on theLaw of the Sea.

A/CONF/62/so/Rev.s Ranee of Procedure of the Third UN conferenea on the Lawof the Sea.

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The historical background to the Convention is well documented.There is a fuH account of this in the introduction to the published andofficial text of the Convention. For purposes of our discussiononly from time to time refer to the historical processes through whichthe Convention was negotiated. The Convention covers every facet ofocean space, It contains provisions relating to limitations of natioaaljurisdiction over ocean space, access to the seas, navigation, protectionand preservation of the marine environment, exploitation of living re-sources and conservation, scientific research, seabed mining and othe<exploitation of non-living resources, and the settlement of disputes-

Part XI of the Convention

The main problem area in the Convention is those sections of PartXI covering the provisions relating to activities in the InternationalSeabed Area. It is in this part of the Convention where it is declaredin Article l36 that "the area and ih resources are the common heritageof mankind"' and further in Article l 37 that:

l. No State shall claim or exercise sovereign rights over any part ofthe Area or its resources, nor shall any State or natural orjuridical person appropriate any part thereof. No such claim orexercise of sovereignty or sovereign rights nor such appropria-tion shaH be recognized,

2. All rights in the resources of the Area are vested in mankind asa whole.... These resources are not subject to alienation. Tbeminerals recovered from the Area, however, may only beahenated in accordance with this Part and the rules, regulatiartsand procedures of the Authority.

3. No State... shall claim minerals recovered from the Areaexcept in accordance with this Part. Otherwise no such claim--shall be recognized.'

Of special and particular importance to the economically w~countries is the provision of Article, l40 which provides for somerelief to such countries. It states:

UN Conventioa oa the Law ot the Sea.

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I. Activities in the Area shall be carried out for the benefit ofmankind as a whole, irrespective of the geographical location ofStates, whether coastal or land-locked, and taking into particularconsideration the interests and needs of developing States....

2. The Authority shall provide for the equitable sharing offinancial and other economic benefits derived from the activitiesin the Area through any appropriate mechanism on non-discri-minatory basis....'

Having thus laid the principles relating to the acquisition and uti-lizatioa of the riches from the ocean, the Convention laid down thepolicies on the conduct of activities in the Area in Article 150 andfinally Article 151 proclaims the production limitation which hascaused so much furor over the years.

The Article establishes a ceiling for the tonnage of nickel that maybe produced from the seabed in the Area. The ceiling tonnage is cal-culated from a formula which, based on long-tern consumptiontrends, allows seabed mining to produce a tonnage of nickel equivalentto the total increment in world demand for nickel over a five-year pe-riod, starting six years prior to the commencement of the earliest com-mercial production, and then increasing on a scale equivalent to 60percent of the increasing world demand for nickel with, however,certain ceiling limiting reservations.

It is conceded, immediately, that the calculations in the Article 151formuh were based on the world consumption of nickel shown by thethen most recent fifteen year's data that were available. It will beimportant, therefore, that a later full scale study is made prior to thecommencement of commercial production to lessen the chances oferror due to inaccurate estimation.

The formula in Article 151 thus establishes a ceiling for theproduction of nickel from the Seabed, but it does not directly establishthe amount of production of any of the other metals that may be pro-duced from the polymetallic nodules cobalt, copper, manganese, andothers!.

To arrive at the production figure for these other metals, a series ofassumptioas will have to be made. These relate to grade and the reco-very processes applied. I am unschooled in this particular disciplinebut I have been advised by my Zambian colleague, a mining engineeria our delegation, that from the figures so obtained it will be possible

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to calculate the tonnage of nodules that will be mined to produce thetonnage of nickel allowed under Article 151.

From that tonnage of nodules, from the nodule grade' and fr p~ grecovery factors, the tonnage of the other metals that will be prop~ +frOIn theSe nOduleS Can then be calCulated. MOSt peOple dO agree tlthe formula is not 100 percent foolproof, but it does provide .protection.

AH this was planned for as a way of providing protection tp tl,edeveloping countries, which are expected to suffer adverse effe~,their economies or their export earnings, if such adverse ef fects r~g<from activities in the Area.

The question that arises, therefore, is how did this Article l5l findits way in the Convention, and how was the Convention it ifnegotiated?

The Convention, which opened for signature on 10 December l9gin Montego Bay, Jamaica, was a culmination of over fourteen years pfstrenuous work in which more than 150 countries participated. Allregions of the worM were represented, so were all political and legalsystems as well as all levels of socioeconomic development. The treatythat was born out of such work has been described as unique in theway that it was negotiated, for it has not only codified internationalcustomary law but it has boldly introduced new concepts in interna-tional law to lend efficacy to the principle of a just and equitable newinternational economic order in relation to ocean space.

This is particularly so when the Convention declares the concept Ofthe common heritage of mankind in referring to the resources Mdriches of the oceans. The concept itself had come before the GeneralAssembly of the UN as early as 1967, when the discussion revolvedaround the question of the preservation of the seabed and ocean floorexclusively for peaceful purposes.

The declaration stated that

The Seabed and ocean floor and the subsoil thereof, beyond the li-mits of national jurisdiction as well as the resources of the area, R'ethe common heritage of mankind and shall not be subject toappropriation by any means by States or persons.'

l~~4ied ia the Convention ae Preemb}e 6; hzticle IS6 X! j ISO' 166�! g ea Ietatiag: States Pertiee agree that there eheg be ao emendmeate to the beeic p~<P"relating to the common heritage of mankind eet forth in ~icle ISO end that they <+aot be party to cay egreement ia derogatioa thereof.

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UNCI.OS Negptlatlng Strateglea

In 1973 the Third UN Conference on the I aw of the Sea wasconvened by the General Assembly. During its first session it adopteda procedure that eventually resulted in the Convention as one integralcompromise document or "package." This procedure meant that therewas need to have consensus as a way of arriving at decisions.Tp reach such consensus, all kinds of strategies were adopted during

informal negotiating groups. From the very beginning of the Confer-ence it was realized that, in view of the large number of participantsin the Conference and the divergent views and interests such partici-pants held on some extremely sensitive issues, small informal workinggroups would produce more efficient results than large formal groups

There were thus many such groups, based on interests whicspmetirnes cut across the traditional regional or political groupingsThis meant that land-locked states would negotiate draft provisions asa group while coastal states would also get together to protect theirspecific interests. Despite aH the various criss-crossings of interests,regional consultations were still maintained.

It was only after all these various consultative groupings had beenNoae through that a particular issue would be adopted by consensus informal settings. This is how the Informal Composite Negotiating Textwas adppted in 1977. At this state of the negotiations there were stiHsome delicate issues to be resolved. These were the so called "hard-core" issues. To negotiate such difficult issues the Conference institu-tionalized the various informal practices within the Conference so astp reach agreement.

Negotiating groups were established which dealt with specific issueswhich were then brought for adoption to the Plenary after a particularconclusion had received widespread and substantial support from theinterested negotiating parties.

When finally the Convention was adopted, it was indeed a compre-hensive package on the law of the sea. The text of the treaty, there-fore, does not include any parts which did not go through the elabor-ate process of negotiations which had been adopted by the Conferencetp ensure that all the provisions had received widespread and substan-tial support.

From this historical background emerges the style of negotiationsthat has also permeated through the work of the PrepCorn. In all thenegotiations, on all hard core issues, informal negotiations have beentaking place, after which a formal decision is taken once it becomesclear that a particular compromise commands widespread support.

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Preparatory Comm!as!os Negotiating Strategies

At the very start of the work of the PrepCom in 1983, in Kingston,Jamaica, this procedure was stretched to its very limit. For almost fourweeks, informal discussion, negotiations, and compromises were co<-ducted in corridors, over endless cocktails, luncheons, and dinners 4+agree on the structure of the PrepCom and in particular to agree on itsChairman.

Not until the very last day of the four-week Session, 8 April !9g3,did we finally agree on Mr. Joseph Warioba, the Attorney-General ofTanzania, as the Chairman. The actual formal adoption of hiscandidature and that of the structure of the PrepCom took on!Yminutes, because a!l the hard and delicate negotiations had taken phdoutside the formal meeting.

Let me now turn to two problem areas of the Convention. whic~first seemed without solution but which the PrepCom has been able tocontain, using the same strategies in negotiations as those app!i~during the Third Conference. The problems both relate to theimplementation of Resolution II of the Convention. There was firstlYthe question of overlapping claims by pioneer investors beforeregistration, and secondly, the question of implementing ob!igatioasby the pioneer investors upon registration.

Orer!app!ag Claims By P!oaeer Investors

In recognition of investments that had already been made inexploration, research and development work re!ating to po!ymeta!lienodules, the Law of the Sea Conference decided by its Resolution Hto establish a special regime to govern "pioneer activities" by States orentities that ~ould be registered as "pioneer investors" by the Prep-Com. Resolution II ensures that pioneer investors would receivemining contracts from the Authority.

Resolution Il identified the potential pioneer investors as a group offour States or their enterprises France, India, Japan, and SovietUnion! and a second group of four consortia whose components canMfrom one or more of a !ist of eight States Be!gium, Canada, FederalRepublic of Germany, Italy, Japan, the Netherlands, the U.K �and tb4:U,S.!. Resolution II a!so allowed developing States to qualify aspioneer investors under certain conditions.

To be registered as a 'pioneer investor", a consortium must have a"certifying State" that has signed the Convention. Of the eleven Statesidentified in the reso!ution, all have signed the Convention, with t~eexception of the Federal Republic of Germany, the U.K., and the U.S.

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To qualify as a pioneer investor, the applicant must have spent atleast $30 million on seabed activities as of 1 January 1983, except thatdeveloping countries other than India, which is provided forseparately! had until 1 January 19S5 to qualify. The arrangementlimits to eight -- plus an unspecified number from developingcountries � the number of those who can qualify for pioneer status.

States or communities registered as a pioneer investor will beentitled to explore allocated portions of the International Seabed Areabut not to exploit a site commercially until the Convention comes intoforce. They will also be guaranteed priority over all others except theEnterprise! when applying for authorization for commercial produc-tion.

Under Resolution II, an applicant is required to propose an arealarge enough far two commercial mining operations, whereupon thePrepCom would allocate one part to the pioneer investor and reservea commercially equivalent part for development by the Enterprise.Each State or entity registered as a pioneer investor is thus guaranteedone site of more than 150,000 sq. km, for which it is granted exclusiverights of exploration.

Those applying for pioneer investor status must ensure that none ofthe areas for which they are applying overlap areas sought by otherpioneer investors.

France, India, Japan, and the USSR had applied for registration aspioneer investors. The application of India was for an area in theIndian Ocean. The other applications are clustered in a zone in thenortheastern Pacific Ocean, with overlaps between the claims of theSoviet Union and Japan and between the Soviet Union and France.Theoverlaps were such as to make it particularly difficult for all threeto submit two areas each of equal estimated commercial value asrequired.

This situation was not envisaged at the time Resolution II wasformulated, nor was it foreseen that there would be such a largeconcentration of claims in one ocean area and that applicants wouldencounter such difficulties in resolving the conflicts created by theoverlaps.

In 1984, the Chairman of the PrepCom was given a mandate to assistthe pioneer investors in resolving overlapping claims. Ia February1986, the Chairman, with the assistance of the Special Representativeof the Secretary-General, conducted intersessional consultations inArusha, United Republic of Tanzania, which resulted in what hasbeen referred to as the Arusha Understanding.

Under the Arusha Understanding, France, Japan, and the USSRagreed to divide equally the areas of overlap among them. They thus

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agreed to relinquish areas before Resolution II would require them to,establishing a principle which couM provide the means for meeting theconcerns of those States and entities which might yet apply. The Un-derstanding then allocates mine sites to the three applicants and arear'of equal estimated value to the Enterprise.

Thus once more after delicate informal negotiations the PrepCo~formally and unanimously adopted a new procedure which laid outnew procedures for resolution of overlapping claims among thepioneer investors and a timetable leading to registration. The mainpoints of the procedure, which was later adopted in New York in thesummer of l986 and is referred fo as the New York Declaratioa,provide;

a! a basis for the resolution of overlaps that exist in areas claimedby France and the Soviet Union and by Japan and the Soviet Union;

b! a guarantee of a mine site of equal commercial value for theAuthority in the area in the northeastern Pacific adjacent to the claimsof France, Japan and the Soviet Union;

c! an undertaking by the four applicants to assist the PrepCom andthe Authority in the exploration of a mine site for the first operationof the Enterprise and in preparing a plan of work with respect to sucha mine site on conditions to be agreed after registration;

d! a mechanism for advance relinquishment of portions of the over-lapping areas in order to deal with the conflicts arising from the over-laps in the claims of the first group of applicants on the one hand asdpotential claimants on the other; the areas so relinquished will bcdeposited with the PrepCom for the duration of the pioneer periodand will be available to potential applicants, who may wish to registerclaims under Resolution Il;

e! for similar treatment to be given to potential applicants as thatgiven to the first group of applicants, provided the former assumesimilar obligations and submit their applications before the entry intoforce of the Convention;

f! an extension of the time limit from January 1985, as specified iaResolution II, to the date of entry into force of the Convention forqualifying investments to be made in deep seabed mining by develop-ing countries who wish to apply as pioneer investors;

g! a group of all or several socialist States of Eastern Europe or agroup of State enterprises of such States is given the right to appIy aspioneer investors for one additional pioneer area, until the Conventionenters into force.

In addition to these substantive matters, the Understanding sets oatthe procedures and time frame for registration, starting from the sub-

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mission to the Secretary-General by 25 March 1987 of a revised appli-cation by each of the first four pioneer applicants,

These were important issues which were all resolved by careful ne-gotiations conducted initially in informal discussions and subsequentlyadopted in formal sitting.

The second illustration of how the PrepCom is applying the proce-dure of elaborate informal negotiations before reaching consensus ison the question of implementing obligations of registered pioneerinvestors.

Obligations of Registered Pioneer Investors

The special rights that derive from registration as a pioneer investorcarry with them certain responsibilities and obligations. Among theobligations is a $1 million annual fee, beginning from the date of theallocation of the pioneer area, to be paid to the Authority upon ap-proval of the pioneer investor's plan of work for exploration and /orexploitation.

Pioneer investors should also incur periodic expenditures with re-spect to the area of the seabed allocated to them for pioneer activities.The amount shouM be reasonably related to the size of the pioneerarea, and the expenditures would be expected of a bona fide operatorwho intended to bring the area into commercial production within areasonable time.

To ensure that the Enterprise's operations in the InternationalSeabed Area could keep pace with those of States and other entities,every registered pioneer investor is required, at the request of thePrepCom, to carry out exploration in the area reserved for activitiesby the Enterprise and to provide training at all levels for personneldesignated by the PrepCom. Resolution II also imposes on pioneerinvestors certain obligations relating to the transfer of technology.

Following the registration of the four pioneer investors in 1987, theChairman of the PrepCom undertook consultations on the implemen-tation of the obligations of the registered pioneer investors and oftheir certifying States. At the Sixth Session held in Kingston in March1988, an informal Consultative Group Group of 33! was establishedcomposed of sixteen representatives of the Group of 77, the Group of4 Registered Pioneer Investors, the Group of 6 potential applicants,three Eastern European Socialist States, China and the Group of 3Friends of the Convention, plus the Chairman.

Through this informal Consultative Group, delicate negotiationshave been taking place since 1988 to resolve the issue of obligations.

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The registration of the pioneer investors has been celebrated ia theCommission as an important landmark in the implementation of +eCommission's mandate. Its positive effect on the Commission has bee+evident. To preserve and further strengthen that positive effect, it wINimportant that a solution be found for the implementation of the pm-neer's obligations.

Efforts over the past two years have helped to identify the issuesand possible modalities for compromise, thus paving the way for asolution. During the discussions and negotiations last year, it Qsobecame apparent that certain matters relating to the discharge ofobligations, such as an agreement on a program for exploration wouIdrequire the assistance of a group of technical experts if any progresswas to be made in resolving the issue. As Chairman of the Group of77, ! accordingly proposed, and the PrepCom accepted, that a groupof technical experts be convened to prepare, for the consideration afthe PrepCom, a comprehensive plan for the early stages of explora6o>of a mine site in the area reserved for the Authority in the centredregion of the Northeast Pacific, indicating the nature of activities tobe undertaken, the data and information to be obtained, and the costsinvolved.

The group was also requested to prepare a comprehensive explora-tion plan from the first stages of exploration to the stage where adecision for exploitation could be taken. If it were not feasible toprovide the same level of details and costings for the later stages ofexploration, then the group was required to give the reasons in itsreport.

In examining its mandate, the group concluded that the first stagesof exploration would in fact form part of a comprehensive explorationplan from the first stages of exploration to the stage where a decisionfor exploitation would be taken. Accordingly, the group proceeded todevelop a complete plan for all stages of exploration providing sechdetails of activities and costs as could reasonably be provided at thistime.

The group proposed an exploration plan providing for two separatestages of work

a! Stage I would identify the prime areas reserved for the Authorityin the central region of the North-East Pacific. The work wouM takeabout two to three years to complete and would cost approximately $7million - $9 million;

b! as currently envisaged, Stage II would entail several years ofdetailed surveys to identify possible mining sites and would cost in theorder of $35 million - $40 million;

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c! the time and cost, particularly of Stage II, could vary dependingon the results of prior work and advances in exploration technology.The cost estimates provided in its report were based on informationprovided by the members of the Group who had experience in thefield. The cost estimates were considered reasonable but would berevised as more information and experience were gained.

ln the light of the reports of the Group of Technical Experts andupon consultations with the interest groups, the Chairman submittedto the interested parties a revised version, during the Summer SessionOf last year, of his "non-paper" containing possible compromises onthe implementation of the registered pioneer investor's obligationsoriginally circulated at the Spring Session of the PrepCom, in Jamaica.

Although no final conclusion was reached in the discussions andnegotiations on this issue during the last Session in Jamaica last March,it has become obvious to all concerned that, by using the method ofinformal negotiations, issues have been clearly identified and there isevery possibility that agreement will be reached during the forthcom-ing Session in New York next August.

This is so, because, while all obligations appear to have been moreor Less agreed upon, only two main areas still remain problematic.These are the annual payment of $ L million by each registered pioneerinvestor and the question of expenses for the exploration of a minesite by the pioneer investors for the Authority up to at least Stage I ofthe exploration plan submitted by the Group of Technical Experts.

I am very confident therefore that the answer to these two issues iswithin reach of the PrepCom.

Thus far it has been established that the strategies employed duringboth the Conference and the PrepCom did bear fruit and continue toproduce results.

I.et us now see whether the problem that has caused some difficul-ties to some countries, particularly the United States of America, onthe Convention can also be resolved and thus pave the way for theuniversal acceptance of the Convention.

There are other areas of difficulty in the Convention, but those arenot as elusive to solution as is Part XI. Most countries that have diffi-culties with Part XI have not left the negotiating table and havecontinued to participate in the work of the PrepCom. The exceptionis the U.S. This unilateral action by the U.S. Government in 1982 wasvery surprising to most delegations, if not totally disappointing.

The U.S. Government, apart from the USSR, had the largest delega-tion throughout the Third Conference and had more expertise on itsdelegation than any other. Most of the negotiations on the various

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parts of the Convention were done with the U.S. delegation be~8either fully involved in, or actually leading and influencing, the «~decisions.

Perhaps it is important to recall what was said by Mr, Elliot L-Richardson, chief U.S. delegate to the Law of the Sea negotiations: "+we do not have sea law" we will have 'jungle law" and that "rareIY hsLany generation had so clear a choice between order and anarchy"-

It is also important to remember that, during negotiations, thedeveloping countries actually agreed to a formula by Dr. He~ryKissinger, former U.S. Secretary of State, on the modalities of deePseabed mining. The Kissinger formula stated that there should b+ aparallel system of mining: one by individual states or corporations i+an area assigned by the Authority and another area to be explored bythe Authority through the Enterprise. Such area could be exploredjointly under contract with the Authority, and the wealth real~would be equitably shared by the international community- Thia ~now part of posterity.

From the above, however, it becomes clear that if the U& h3dremained within the Convention and continued to work within thePrepCom, it would have been possible to discuss its concerns ~dpreoccupations on certain parts of the Convention. If was this lack ofcontact which made the U.S. perhaps conclude erroneously that ~eGroup of 77 was unwilling to talk to anyone about the need to have auniversally acceptable Convention.

When we in the Group pf 77 realized this misconception. it ~decided during last Summer Session that I, as Chairman, should tuakea statement to the Plenary of the PrepCom on this subject. Thus in ~ystatement of 1 September 1989, I said the following:

Universality of the Convention

It is important, perhaps to recall that during the Third Conferenceon the Law of the Sea, the Group of 77 was always willing to co-operate with ail interest groups to negotiate what turned out to be acompromise document -- the Convention, We have never chaagedthe basic stand of cooperation even during the work of the Prepara-tory Commission.

However, for some unexplained reasons, it would appear as if aurposition has not been fully appreciated. I wish to state that theGroup of 77 has always been ready, to hold discussions, within thecontext of the Preparatory Commission, with any delegation, or

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group of delegations on any issues relating to the Convention andwork of the Preparatory Commission.

Our willingness to discuss is borne out of a genuine desire to ensurethe universality of the Convention, because the universality of theConvention has always been the objective of the Group of 77. Anydelegation, or group of delegations, be they currently involved inthe work of the Preparatory Commission, or not, whether signatoriesor non-signatories to the Convention, are welcome to open dialoguewith the Group of 77.

This, we declare without any precondition, other than the fact thatthose willing to talk must indicate a positive approach to seriousand meaningful talks. This has been our position and shall continueto be our position. This, however, is not meant to slow down the ra-tification process which must proceed on course. Meanwhile theGroup 77 remains ready to talk.

I am glad to indicate here that my statement has not gone unheeded.The U.S. has since commenced a series of preliminary bilateralconsultations on the issue. Several delegations in the PrepCom,including mine, have since met with very high ranking U.S. govern-ment officials. It is my sincere hope that such contacts will bear fruit.Perhaps I could reiterate the following points:

a! The statement of 1 September 1989 was a genuine desire to placeon record the correct position of the Group of 77 on the question ofthe universality of the Convention.

bj The Group of 77 is ready to discuss whatever concerns the U.S.or other countries have without any preconditions.

c! The consultations on substantive issues should be on specific dif-ficulties, and concerns of the U,S. and other countries and solutionscouM be found by creative and constructive interpretations and prac-tical applications of rules and understandings in the same way that thePrepCorn has found answers to the question of overlapping claims andthe registration of pioneer investors.

d! While the Group of 77 prefers that any consultations should beundertaken within the context of the PrepCom, if need be, it wouldstill support discussions and consultations using other appropriate foraand mechanisms outside the PrepCom, knowing that eventually all thework on the Convention wiH be finally handled by the PrepCom.

e! The U.S. may seriously consider the possibility of having an of fi-cial, without any designation or status, to be around during the Prep-Com meetings to provide the opportunity for "corridor discussions"

33l

with various delegations. Such a move would help emphasize the ser-iousness of U.S. intentions to start dialogue.

f! Deep seabed mining will not take place in the very near fo~~e.and in the interim there are likely to be changes to the scientific ~technological data and information available now to influence s~>seabed mining.

g! This, therefore, means that some elements of seabed mining acednot necessarily be conclusively decided upon immediately but may Wdeferred to an appropriate time when it will be appropriate to 4o so.

h! When seabed mining does take place it will be done under theconcept of the common heritage of mankind. One possibility +fachieving this, which has been recently proposed by both theChairman of the PrepCom and the Director of the Law of the SeaInstitute, is that the exploration of the seabed should be done by jai>tventures between the Enterprise and private operators. Such jo~tventures would remove many of the difficulties that are likely ta befaced by private operators.

Let me end my few remarks and reflections by explaining ~hstZambia's problems are and why we have been so concerned with theneed for a regime of seabed mining which is orderly and does notdestroy the developing land-based producer states.

Minerals are the most important exports of Zambia and have consis-tently been responsible for about 98 percent of the total exertearnings. Copper usually represents 93 percent of export earainW.with other metals such as lead and zinc representing about 3 perce~tto 4 percent and cobalt about 1 percent.

Since 1976, however, cobalt prices have increased, with quite Ndramatic rise in the last few years. The result of these changes is tbntin 1989 copper represented 85.1 percent of total export earnings andcobalt represented 1 1 percent.

The mineral industry is directly attuned to the international coPPersupply-demand pricing system which has been relatively static: f«some years, whereas other sectors of the economy, related to the localsituations, have expanded. The result is that the mineral industrV.which was responsible for 41 percent of the gross domestic product sabathe past, contributed only 18 percent to the gross domestic produat iathe 1980s. The industry employs over 65,000 people in a total nationaBwork force of 370,000, i.e., 18 percent.

Zambia is primarily a copper producing country, and the reservesare quoted in various journals at about 860 miBioa tons of ore going3.06 percent copper �6 million tons of contained copper!. This doesnot, however, take account of considerable tonnages of protore which

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will eventually be minable when certain technicaI mining «ndmetallurgical problems are overcome.

Cobalt occurs in practically all of the Zambian copper ores but it isonly in some mines that the grade and physical characteristics enablerecovery to be economic. If the demand arose and the capital cost ofthe recovery plants could be justified, Zambia could considerablyincrease and supply, not only from the new ore but from tailingdumps and smelter slag heaps.

Other sectors of the Zambian economy are expanding, but theminer«I industry will be the main export earner for a long future.

Mr. Chairman, I wish to close with the following quote from thestatement made by the then Minister of Mines of Zambia during thesigning ceremony in Montego Bay, the Hon, Basil R. Kabwe:

The United Nations Convention on the Law of the Sea is a treatythat represents a child born out of compromise. It is a realization ofa dream of not one nation but a collection of nations and peopleswhose aspirations are quite obviously diverse and wide. But thisConvention is the nearest we could have got to a tangible andattainable hope for humanity.

At various stages throughout the negotiations my country did indi-cate areas which we thought required improvement in terms of ourparticular problems, together with other countries in a similarsituation as geographically disadvantaged States and mineral-pro-ducing nations. If I were to recount all such areas I fear that I mightnot have sufficient time. Suffice it to say that Zambia had and con-tinues to have faith in the spirit of Caracas, which had permeatedthe negotiations leading up to the mandate of Montego Bay.

Zambia had participated fully in consultations and meetings amongthe various interest groups, such as the African Group and theGroup of 77. We made our views known on such crucial matters asfirst, the question of production limitation, which is fundamental tothe economies of those countries which are producers of minerals tobe mined from the seabed; secondly, the protection of pioneer in-vestments in the exploration of the seabed; thirdly, the concerns and«Iternative solutions presented to the Conference by the Governmentof the United States in matters mostly dealing with Part XI of theConvention, pertaining to the international seabed Area; andfourthly, the issue of the establishment of the Preparatory Cornmis-sioa.

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It is also on record that, following a request from my government.and using assumptions that it was privileged to provide, the VnitedNations Secretariat produced an addendum to the report of the Sec-retary-General of the United Nations in order to determine theeffect of seabed mining on the economies of developing counts'icewhich produce copper, cobalt, nickel and manganese from the laad-The addendum clearly showed that developing land-based producersof cobalt and manganese would definitely lose their traditional mar-kets if seabed mining were to take place. Thus the system of com-pensating developing Land-based producers of affected minerals be-came crucial to Zambia, a matter of life or death. For the work onthis important aspect of the Convention, Zambia is greatly indebtedto the personal interest and involvement of the Special Representa-tive of the Secretary-General of the United Nations, Mr. Bernard'Zuleta.

Although Zambia's concerns in the area I have just outlined havenot been fully taken care of in the final clauses of the Convention,we have not, as others have, abandoned the Conference or disownedthe Convention. We have stayed through because we believe that thealternative to the Convention represents uncontrolled internationaIpiracy of mankind's bounty from the seabed. We cannot see our-selves subscribing to such illegalities. I should like to join those mbahave spoken before me in appealing to those of our friends whohave opted to leave us at this important stage to reconsider their po-sitions and sign the Convention at the earliest convenient time.

Ideas of unilateral mining of the seabed or mini-treaties should beset aside. Ideas of attempting to derive benefits through the backdoor and of refusing to accept the collective duties of the Conven-tion should not be allowed to take root.

You, Mr. President, as a distinguished and learned diplomat, havebeen reported as having said that if certain countries were to go italone, either through mini-treaties or through unilateral mining,their action would be morally unjust and legally it would "probabLYbe an illegal act under customary international law". I am lucky netto be a la~yer, so I am not restricted by either the inhibitions or theniceties of the learned fraternity and can therefore say that taZambia such acts will without doubt be regarded as exploitatioa ofman by virtue of using the might of technology in taking advantageof the weak.

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That position of eight years ago is still valid today because theAuthority, the Enterprise, and all the organs to be established underthe Convention do not belong to the Group of 77 only. They are allcreatures for the benefit of all mankind. Let us therefore work togeth-er with sincere intentions of purpose. The future could be bright if weface it right.

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COMMERCIAL EKPLOITATION OFPOL YMETALLIC NODULES:

COMMENTS ON SOME CENTRAL ISSVE AREAS

byJan Magne Markussen

The Fridtjof Nansen instituteLysaker, Norway

Purpose

The aim of this presentation is to analyze the prospects for comm«-cial exploitation of nodule deposits. The probable time for coaa-mencement and organization of the activities are two impor~tquestioas I will deal with.Concerning the time aspect, I ask, for instance, whether there is a

basis for the skepticism or pessimism expressed from certain quartersin the U.S. and the Preparatory Commission that it will take severaldecades -- perhaps thirty, forty, fifty, sixty years or even longer--before the resources will be exploited commercially.

Regarding organization, one of the questions concerns the extent 40which we will continue to have national programs, or whether possibi-lities exist for stronger international cooperation.

Method

Taking the historical development as my starting point, I will try toanalyze in what way the interplay between technological, economic.environmental, political, and legal � and also psychological andideological -- factors may affect further exploration and technologicaldevelopment for different groups of actors.

Orwaalzation of Commercial Projects

Hifstorieal DcvefopnsentThe historical development as regards exploitation of nodule deposits

may be divided into four phases:The introductory exploration of the deposits took place in thesixties.

During the seventies, private companies invested large sums,believing that they would get quick profits.These failed to materialize and, in the eighties, private invest-ments were replaced by national, governmental programs -- actorsin a pOSition tO think long term and whO had as their mOtiveSsupply considerations and political factors.'Now, at the beginning of the nineties, the focus is on the environ-ment. Several comprehensive studies of environmental conse-quences of deep seabed mining have been started in Europe,North America, and Asia.' Moreover, real possibilities exist thatserious preparations for commercial exploitation may commencetowards the end of this decade.

Plus jar PiIot Mining Operatioes in the ¹rl.tiesTwo countries -- Japan and India � have decided to commence pilot

mining operations in the present decade. Japan will start pilot miningin the period l994-96, while India aims at starting towards the end ofthe 90s. Let us look more closely at the deep seabed activities in thesetwo countries.'

JapanThe Japanese deep seabed activities started in earnest in 1981.' At

The historical development involving a Craneition from private engagement toaational programe hee been dealt with in Markueeen, Salus and Phospccrr for Ccenmeeial8+aiarion of Nark I'kyosirs, The Pridtjof Naneen Inetitute, December 198S, S50 pp.;and ln Markueeen: "India and the Deep Seabed Minerale -- Technological Challengee,Economic Proepecta," in 7' Indian Noduk Pmgnam bs ae I¹icrna¹oeal PWpccrive, reporCprepared for the United NaCione Induetrial DevelopInent Organiaation, Vienna, June10QO, 10$ p. The latter report ie confidential.

The relationship bet~can deep eeabed minerals and the environment haa beenf Dw

NIL � Aeb4cr¹ Areas end RgwIN¹oer, The Pride Jof Naneen Institute, Auguec 1991, lgspp, Norway'e Environment Minister, Torbjyrn Bernteen, hae written a foreword to theboat, which hM been written at the requeet ot the United Nations Office for OceanAffaire and Law of Che Sea in New York.

The information ie baaed on talks with central actore in the Japanese and Indiandeep eeabed programs in tall LQQO and epring 1QQ1.

Japaneee companiee aleo have owner eh~ in two of four internationally compaeedinduetry groupe eetabliehed between lQTS and EQUAL Miteubiehi Corporation owns a 1%%~ hare in Kennecott Coneortium KENCON!, «hBe Deep Ocean Mining Co. Ltd,comprieing S4 Japaneee companiee led by Sumitomo, own a R6% chare in OceanManagement Incorporated OMI!. KENCON and OMI had invmted respectively 50

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that time the so-called Large Scale Project was commenced, a projectwhose objective was to develop a complete system for mining ofnodules.' Nineteen companies, together with the state-run h4eWMining Agency of Japan take part in the development work which Limainly financed by the Ministry Of international Trade and lndccStry MITl!.'

The JapaneSe engagement is charaCterized by COOperatiOn betwCeIIthe state, industry, shipping, and research. Development of has>cknowledge took place during the first three to four years at researcbinstitutions. Further work in building up competence was We+transferred to the companies which since then have had the real+responsibility for technology development. Today, four hundredperSOnS are wOrking on the design and struCture Of the Ini<>+S

million and 100 million USD up to 1981. {The investment 5gutea are baaed on intarvi~«lth company managers and quoted in Marhuaaen: Deep Seabed Minerals - Status adPerspectives!, Internaajonal PoBCihk, No. 4-1084, Norwegian Institute of lnternaticionIAffairs, December 1084, pp 0-4S!. OMl and KENKONa' participation in the Cechnol~-cal development haa bean very limited since 1081,

When I claim Chat the Japanese engagement only really got going in 1081, Chia Iin+ Codo with the fact that the Large Scab Project repte4nta the first collective naticuaaIenterprise.

$A comprehensive daacripCion of Japanese deep aeabecl activities ia given in KasubIhoHlda, Current Development of Ocean Mineral Resources and EnvironmenCal Protectionin Japan: Harmoniaing Development wich Environmental protection, paper presolatoiSat Special Commission 8 Seminar on Environmental AspecCa of Deep Seabed M~IO August 1000, United Natioaa, New York. Mr. Hida raa at thaC Cime Director Gelaernlfor the Metal Mining Agency of Japan.

The background, organisation, time «apect, and technology for Large 8cals Projoct isdescribed in an elghC-page balst entitled 'Manganese Nodulaa Mining System: Da~fot Resources in Deep Seabed" published by The Technology Research Asaoclatioti ofManganese Nodulea Mining System, Tokyo, March 1000.

The following orgeniaationa participaCe in the project: Dowa Mlnlng Co., X tcI-IEbara Corp�Hltachi Shipbuilding and Engineariiig Co., LCd., lshihawajima-HarimnHeavy Induatri» Co., Ltd., Kawasaki Heavy Induatriea, Ltd., Meidenaha Electtic ~-Co., Ltd., MeCal Mining Agency of Japan, Mltaubiahi Heavy Induattiea, Ltd.. MitaubinbiMetal Corp,, Mitaui Enginwring and Shipbuilding Co., Ltd., Mitaui Mining and SmelCImgCo., Ltd., MiCaul O.S.K. Linea Ltd., Nippon Ebctric Co., Ltd., Nippon Kokan K~- ~Nippon Mining Co., LCd., PacMk Metah Co�Ltd., Sumitomo Electric Indusiriea, Ltd.,SumiComo Heavy Induattiea, Ltd., Sumltomo Metal Mining Co., LCd., and Che YohohaaaaaRubber Co., Ltd.

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system. For instance, building of the collector unit is currently takingplace at the Sumitomo Heavy Industries plant at Oppama.

Japanese technology shows clear similarities to the concepts theAmericans and Europeans have developed for nodule mining -- withone exception.' The Japanese will be using a so-called passive ortowed collector unit, while the others prefer a self-propelled collectorllnit. AmeriCanS and EurOpeanS are highly SkeptiCal Of the Japaneseplans and emphasize that the mining efficiency for the towed unit willnot be good enough.

The Japanese are aware of this fact, arguing that their unit on theother hand is both simple and inexpensive to produce.' The Japanesephilosophy seems to be an attempt to develop 'inexpensive and simple"technology for employment in first generation projects. More "sophis-ticated" technology may then be used in projects of subsequentgenerations 'e

The Japanese plan to carry out integrated tests of the mining systemduring the period l994-96. Two alternatives are under consideration.In order to see how the system works, it is desirable and necessary totest at 5,500 meters depth in the Clarion Clipperton area. Technologi-cal and economic circumstances may, however, indicate that thesystem might be tested initially in somewhat shallower waters closerto the Japanese archipelago. This decision will be taken in the courseof the present budget year, i.e,, before April l992.

bfdiaIndia established a separate Department of Ocean Development in

l98 l. Localization of commercially interesting nodule deposits was one

Lnforenation provided during tallLa wi th repreaentativea of The Technology ReaearchAaeociation of Manganeae Nodulea Mining Syatem in Tokyo in Auguat 1000 and April1001.

The Japaneae alao wiah to employ a riaer coupled to a dynamically poaitioned miningahlp «ith mcon pool in the bottom.

hnpreaaiona baaed on talha in Japan, Europe, and Che U.S. in the fall of 1000 and the~ pring of 1091.

l 4eeaa~ Japaneae mate no aecret of the fact that there ia, of courae, uncertaintyattached to the technology. They declare, for instance, that they intend Co go over to a~ elf-propelled collector if the teaCa miCh the towed unit ahould prove unaucceaaful.

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of the chief tasks assigned to the new department." In 1987, Indewas given a mine site l50,000 sq km in area, thus becoming -- to AeSurpriSe Of many -- the first nation in the world tO achieve the statctSof Pioneer Investor pursuant to the United Nations Convention on theLaw of the Sea,"

Exploration for nodule deposits in the Central Indian Basin started in emaeat inlQN. India'a interest for deep seabed minerals dates back, however, to the mid-196Oa>«hen the Geological Survey of Indi ~ GSI! carried out the nrat prelinunary atudiee- InIQYS, scientists from the National Institute of Oceanography NIO! and QSI pubhaha comprehensive analyai ~ of the metal content of nodulea in various parts of the IndianOcean, the covariation of different metals, rate of sedimentation, etc. H.J. SiddIQnii9 R. Daa Qupta, N.R. Sengupta, P.C. Srivaatava, and T. Mallik, 'Manganese-IronNodulea from the Central Indian Ocean," l¹dian Journal of Marine Sciasccr, VoI- y>December lQTS!. The analysis was mainly baaed on data that the Indian scientists landreceived horn colleagues abroad. In the following Cwo years, foreign reports were alsopublished, concluding that the General Indian Baain probably contained economic+nyinteresting nodule deposits. The Indian research vessel Gaverha¹i of NIO carried out tbefiret successful cruise for polymetallic nodulea in 1981 in the Arabian Sea.

It should also be mentioned in this connection, moreover, Chat by 1981 the nettledeposits in the Pacinc Ocean were explored far more thoroughly than deposits in theIndian Ocean. There were several reasons for that. F iratly, industrial groups and westernresearch inaCitutiona realised relatively early Chat depoaiCa in the Clarion-Ciippartonnrnain ths pacinc satianed Requirements for firat-generation projects. Exploration work wnatherefore concentrated to this area. Secondly, exploration activiCiea baaed in Che UnitedSCatea have better access to the pac15c Ocean than to the Indian Ocean. Thirdly. manyof the nations ln the Pad5c region are characteriaed by advanced technology and a highlevel of anemic development. The same does not apply for many of the natione in oraround Che indian Ocean. l4ore Chan ha}f of the naCiona belonging to «hat ia called ClueThird World are found in Chia area. The World Bank de6nea thirty of Che thirty-nixnations in the region aa developing countriea cf. Jan Magne Markuaaen, "PolymeteIIicNodule Deposits in the Indian Ocean," NewaleCter No. 3-1QN, The Fridtjof NaneenIawtitut, pp. Ia-gl!.

Interviews made by the undersigned in 1087-Sg revealed surprise noC only amongstpublic authoritiea but also at the company level. This surprise waa probably greateet Inthe U.S., Chough iC waa noticeable in several European counCriea. I gained Che imp~>that the efforts 'made by the Indiana «ere much underestimated due to sheer lack ofknowledge about India'a deep seabed engagement and about India in general- In Cbaaconnection, iC ie weil worth noting that the expert group the UN aeC up for purpoeee ofaaaeaaing the applicationa from India, Japan, France, and the Soviet Unionassignment of ndne aiCea waa gull ~ dear and positive in ita judgement aa Co whetherIndia should be given status of Pioneer Investor. In a book researcher Kara Lathe of thetridt jof Nanaen Institute will be pubHahing next year, Lethe points out thaC the exp~group waa not ao clear in ita aaaeaalnent of three other countriea.

340

What has India done? A comprehensive exploration program has beencarried out." Resources of commercial interest have been identifiedin the Central Indian Basin." Six vessels have been employed in thewOrk and extensive competefICe has been built IIp at the NatiOnalInstitute of Oceanography in Goa. Techno-economic analyses havebeen carried out. Comprehensive development work in processing hasalso been carried out and a pilot processing plant is due to start in

Moat of the exploration activities have been carried out in the Central Indian Basin.Same exploration work haa also been done in the Somali Basin and the Arabian Sea.

The interesting nodule deposits of tha Indian Ocean are situated in tha Centralindian Baain in an area of T90,000 aq km between 10 dagreaa and 16 degrees southernlatitude. Nickel and copper content ia particularly high in a M0,000 aq km east-west belt~ t L2-15 degrees south. Results from the Indian exploration program show that theaverag» content of nickel and copper in the noduLe-rich belt at I2-15 degrees south iaapproximately 2.4 percent. Sea depth varies between 5,000 and 5,500 meters personalcominunication with former Secretary of' Department of Ocean Developinent, Dr. S.Z,Qaami!.

The high content of nickel and copper can be attributed to ocean! currant conditionsand presence of the mineral tadarokite in the nodu!ea cf. D.S. Cranan and S.A. Moorby,Qedt ¹cfuIar Pem tht Casual Indian Basin, Imperial College, London, 1982, 5 p!.

The nodule-rich balt liaa in the crossing between the eaatflowing South EquatorialCoiintercurrant and the weatflowing South Equatorial Currant. When these two oceancurrsnta meat, cooler ~ater of the equatorial undercurrent rises, leading to increasedbiological production in the surface water. There ia thus an increased influx ofbiologically transported metals to the seabed.

Tha axiatenca of todorokite ia seen aa a precondition for formation of commerciallyLiitersating nodule deposits, since this ia the only mineral Likely to contain highomcantrationa of nickel and copper.

In this connection it ia also interesting to draw a comparison with Clarion-Clippertonnod ulaa.

Comnerclally interesting nodule deposits are located in the Central Indian Basin andia tha Clarion-Clipperton area in the Pacific between Hawaii and tha U.S. West Coast.Nickel and copper content i ~ about tha same in both areas. This ia alan largely true fornNnganaae, whereas cobalt content ia lower than in the Clarion-Clipperton area. Noduledensity ia also somewhat low, 5-10 kg/m2 aa compared to 10 kg/m2. Nodule depositsin the Central Indian Basin appear auNicient for one or two first-generation noduleprojects, «hareaa the corresponding figure for Clarion- Clipperton ia ten. First- generationnodule projects are hare defined aa projects having an annual production capacity of 3nilllion tone of dry nodulea over a period of 20-25 years tcf. Jan Magne Markusaen,'Polymatallic Nodule Deposits in the Indian Ocean, ¹aWeer No. 2-ZQN, The FridtjafNanaan Inetitute, pp. 12-51!.

Seabed conditions in the commercially mtereating parte of the Central Indian Basin~ nd the Clarion-Clipperton area are very similar. This can ba of ~at importance forfuture identification of commercially interesting deposits. Increased knowledge ofpreconditions needed for formation af these depoaita «ill naturally aiaa facilitate theidantNcation of such areas.

34I

l993." StudieS and develOpment Of mining teChnOlogy COmlne>C~in earnest two to three years ago, and today, one hundred people at theCentral Mechanical Engineering Research Institute in Durgapur areinvolved in studies of the mining section.The Indian deep scab d program h loo percent st te finmc~ a d

motivated by long term supply considerations. It is primarily theresearch institutions that have been involved in the program up tonow." In the years to come, it can probably be assumed that therewill be a stronger proportion of Indian industry and shipping involve-

1'F

I-et uS then look Inore ClOSely at what I believe will happen in theyears to come.

Eront National Programs fo International CooPerationtThe question is: what will happen on completion of test mining> +ill

further development of technology to commercial scale continue .take plaCe under natiOnal programs, or are there poSSibilities thatnational programs may be replaced by international cooperation.where states as well as private interests participate7 I believe Japanmay become a key nation in that respect.The Japanese will, as mentioned above, commence test mining in the

period I994-96. This is interesting for many reasons. Japan is the firstindustrialized country to indicate that it has phns to conduct testmining. The Indians have on other occasions proved themselves to begood market «nalysts, and the Japanese decision may have irnporta+<signal effects for other countries. Secondly, formal and informal

Indian cotnpaniee and reeeatch orcaniaatione have developed and teated eeveralucetI~ for proceeeina nodulee. NML- Jaeehedpur, RRL-Bhubaneeear, Hinduetan >inhLhnlted, and Hinduetaa Copper Limited have been involved in thie borh.

It ehould alee be ntentloned theC Che two companiee, Engineere India LNnited iuNew Delhi and MECON in Bihar, have carried out coneultancy and advteory aeeignInentafor the Departmnent of Ocean Development. Both are Government of India onterprieee.

For further informalion on the Indian Deep Seabed ProJect eee ~ .C�FronI atr ~~Ãokdc so tht Fke h&e Eke Ae Acceou of the P~etakfk Na4afer eject," Department ofOcean Development, New Delhi, and National lnetitute of Oceanography'. Goa IQSS <>pp.; Rahul Shanna, 'SCrategr for polymnecalHc Nodule Mining lnutraacioeal ~argaeIScr.The trMC jof Naneen InetiCute Journal, No. S-IQQO, pp 4$-iQ; andJan Magne Martueeen, "India and Che Deep Seabed Minerale: Technological Chalieniieoand Economic Proepecte,' Report prepared for UNIDO, Vienna, June lQQO, 108 pp.

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discussions have taken place between France, Japan, and Germanyregarding a possible cooperation project ia the Pacific."The possibility of establishing an international cooperative project

for the development of 'commercial technology' is one of the questionsnow being considered by the Ministry of Trade and Industry MITI!in Japan. It must be emphasized, however, that MITI has by no meansmade any decision in this matter, and that the Japanese are consider-ing both positive as well as negative aspects of a possible cooperativeproject.If the cooperation should eventually materialize, there is every reason

to believe that other countries as well as private industry groups maybe interested in participating, Many factors point to the advisabilityof such international cooperation:Firstly, purely national initiatives mean costly development programs.

The period from 1981 to date has been characterized by state programswith underlying long-term supply and/or political motives. France,india, Japan, and the Soviet Union launched comprehensive explora-tion and development programs around 1981. China and South Koreafollowed some years later, and they have carried out preliminaryexploration and techno-economic analyses.There is no doubt that in developing their technology separately,

several of these countries have reinvented the wheel. On the otherhand, this has been necessary in order to develop the requisitetechnological base in these countries. This leads to the next factor,which favors closer international cooperation:Secondly, the potential cooperating partners today have al1 a very

strong technological basis.Thirdly, within national programs there is now an increased

willingness to cooperate with others.Fourthly, it is worth recalling that the comprehensive exploration

and technological developments undertaken by the four internationallycomposed industrial groups from the mid-1970s to around 1980 werecharacterized by cooperation between American, U.S., European, andJapanese companies. Each of the groups invested between $l00 millionand $250 million during that period.

According to information I bave obtained kom Prance aad Japan, formaldiecaeeione have taken place coaceraiag cooperation between Japan and France, ntFrance'e initiative, aad at tbe came time informal talke bnve taken place oa tbie matterbetweea France aad Germany.

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Reactivation of the industrial groups will depend primarily ondevelopments in the metal markets." Should prices for nodule metalsstabilize at a level that would enable the mining companies to earnprofits for the next five years, there is in my opinion reason to e>pe~ta reactivation of some of the industrial groups, although there willcertainly be changes in the ownership structure compared to today ssituation. And in that case, there is, as mentioned, reason to beiiev'~that the industrial groups might also be interested in joining a possiblecooperation project.Of course, we must try to consider the fact that there are bound <o

be a number of questions, some of them difficult ones, that Must becleared up before any cooperation can be established -- for instance'.the actual mine site to be Used, disagreement on choice of technology"and progress of the project. The Japanese will probably take the viewthat they will make faster progress by operating alone than bycooperating with other nations.

The Role o j Developing CountriesIt is not likely that India will participate in any cooperation tha"Y

take place in the Pacific. They will, of course, go in for their ow>mine site in the Central Indian Basin. However, it is not improbablethat India too will establish cooperation with other nations in specialareas where they are dependent on foreign support -- for instance, inpaM of mining technology,Still, I do think the Indians will first and foremost go for it alone. >o

to speak, rather than embark on massive foreign cooperation in theyears to come. The facts that India has already built up competence inmany areas, that they wish full Indian control over developnwnts. thatthey have a relatively weak foreign economy, all go to suppor't thisassuInption.The Indian program is also very interesting, however, in a developiag

country perspective through the possibilities it opens for training andthe transfer of technology and competence to other developingcountries."

BeSideS India, China and Cuba have alSO aChieved the statUS OfPioneer Investors pursuant to the UN Convention.

5ere!opmeuta in the Preparator Comxaiaaion and the poaaibi!ity of achierisg uuniversally acceptable Law of the Sea Convention mill alao influence, of coaarae, thetiming of poaaible I@activation of ihe induatrial groupa.

tt may ba mautloaed iu thle counectiou that India wN be hoating a UFO aeauinaron 'Deep Sea Technology and Developing Counttiaa in the 5rat half of lQQS.

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India and China are undoubtedly the superpowers of the ThirdWorld. The natural question to ask, then, is: What about other develop-ing countries?

The great majority of developing countries have no realisticpossibilities of participating independently in deep seabed mining.Any participation will have to be through the United Nations.~ Theestablishment of regional cooperation may represent another long termopportunity. A third alternative is to cooperate with industrializedcountries. An example here is Cuba, which cooperates with the SovietUnion and Eastern European countries.

Time Aspects for Commercial Erploitatioa

Let me now turn to the time aspect. When can we realistically expectcommercial exploitation to start? Could it be, as some will have it, thatit may take thirty, forty, fifty, even sixty years before the activitiescan begin?

To give a reasonable answer to this question it is necessary to analyzeeconomic as well as technological, environmental, political, legal, andperhaps even psychological and ideological factors and conditions andto relate each to the others.

Tkt Economic's of Deep Seabed MiningFirst, I wiH deal with the economics of the projects. There exists

today no comprehensive and up-to-date model that concludes thatdeep seabed mining will be hopelessly unprofitable in the decadesahead. A study carried out by IFREMER in collaboration with Frenchcompanies indicates, on the contrary, that the projects may be profit-able within the next decade or so.

It is difficult to say anything certain about the economics of deepseabed mining projects, simply because we do not have access to a

In thia connection, I would like to empbaaiae Chat I pereonally fee! rather skepticalee to the rationality of eetabliehing a aeparate UN-baaed company for commercialproduction parallel to oCher firet-generation projecCe funded by governmente or privatecompaniee. In my opinion, euch an anCerpriee ought rather to aim at eetabliehingcooperaCion with oCher companiee and groupe, eo ae to build up techno-economiccompetence gradually. If a joint inCernational cooperation program becornee a reality inthe Paci6c, I eee no reaaon «hy the UN Enterpriee ehould not alao participate in thatcooperation.

the French model wae preeented at the OTC Ocean Technology Conference! inHoueCon in May l989,

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technical-economic model that is based on realistic assumptions-Such a model would inter alia have to differentiate between differenttypes of actors and also take into account the effects of the massiveamounts of state subsidies given to exploration and development oftechnology since l981 in Europe and Asia.The point is simply that 'profitability' is not and should not be

regarded as a clearly defined concept. What would be commerciallyattractive to one group may be completely unacceptable to another.

Let me here add that l do not believe that one necessarily wiH nmkemuch money from the first-generation projects. The possiblemoney" auld rather seem to lie in second and third generationprojects.

FcehnoIogyTechnology is unlikely to prove a decisive obstacle to the commercial

exploitatiOn Of deep Sea minerals. There iS no doubt that rnuC~technological development work remains to be done. Nor it is far f'romcertain that the technological concepts of today will also be theconcepts of tomorrow. The basic technology for exploration, mining.transportation, and processing of deep sea minerals is, however,already in place.~

Many models have been developed to attempt to analyse these conditionsMassachusetts Institute of Technology {MiT! model from 1078, revised in lQSS, is ~Che most comprehensive, though many of the premises this model is based on have losttheir currency. See J.D. Nyhsrt and M.S. TraintafyHou, A Rcvtrcr Dorp 0c'crnr ~IfrrgVcnuat, Massachusetts institute of Technology, June 19SS, IIS p.!

ln the Srst place, there is a world of difference between «haC is a payingpesposition in Che marhet and what might be prontable from a socioeconornlc viewpomtn the second place, these ars factors that will vary from company to company aad fromcountry to country.

Today's technological concepts for exploration, mining, transport, and processlmgof deep seabed minerals is ~ result of comprehensive research and development prograrr>-A natural question to arise is «hether Che technology of Coday is the technology otomorrow'

The technology of today hss two saajor characteristics, FirsC, assumptions regardingreliability and efficiency of today's concepts of mining and processing are baaed ontheoretical analyses and testing on a minor scale. There is thw some uncertainty as tohow weQ or how unsaCiefacCorily these system soluCions would function should they beemployed on a comn~al scale.

Second, Che technical concspCs of today are a result of rmearch and developmentactivities in deep seabed mining aed act lcuN they are a result of general reeearch anddevelopment in other fields. The concepts of Coday show chat seabed mining engineershave hnown bow to apply to their own area elements of the available conventional

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Environmental ConsequencesCould it be that the environmental consequences will lead to

postponement and even stop commercial exploitation a.ltoletherfThere seem to be three main types of problems:~The first relates to what happens oa the deep seabed.~

technology and know-ho» in the oNahose oil sector, shipping, aad land-based metalproduction. The question ia: Have the engineers managed Co depart from the conventionlie of thought and think afresh in order to develop Cechnology precisely fitted for thepurposely How far will tomorrow'a technology he removed from that of today'

Even though the basic technology for exploration, mining, transport, and processingia known, there ia every reason to believe that radical chaagea «ill take place in many

Ia the years to come, the focus «ill naturally be on the improvement and developmentof technology that will provide effective and reliable toCal ayaCeina. The driving forcesbehind this development will be both private companiea and governments. Important tonote, it ia no longer only the needs of the advanced industrialised countriea that areCaken care of. The developing couatriea are, aa we have seen, «eli represented ia thearena aad may well prove to be an iinportant driving force in the further developmentof this field.

Further technical development e ill be a result of the interplay bet«esa the traditionalforcm 'Technology Push' and 'Market Pull' in that benefit will bs darirad from thegeneral technological developmeaC and from development particularly for deep seabedmiruag. The Market Pull part will of course increase in importance Che nearer «eapproach commerciai exploitaCion.

Ia addition, there are driving forces of a more socioeconomic and political nature, oftenknown as 'PuU of Society' factors. hr we have seen, European and Asian governmentshave financed virtually the whole of the Cechnical development that has taken place aiace!Qgl, Chair moCive being that of long tenn supply considerationa. Moreover, there isevery reason to suppose that the technological developer will be obliged Co pay regardto increasingly stringent enviroamenCal conaiderationa in Che years ahead. The growingconsciousness «orld «ida of the need to protecC the environment rill without doubt leadto more precise regulationa that will represent an important new example on 'Pull ofSociety."

In what areas Chen can «e expect to eee techaoiogical changes compared to today'ate4aologyT I feel there ia, for inataace, rwaaon to expect such changes in explorationtechnology aad Chat there will be greater integration between mining and processing

The evaluation of the environmental consequences of deep seabed mining is baaedoa a book written by Stig Barge, Jaa Magna Markuaaen and Gudmund Vigeruat,

'l ~foreword by Thorbjfrn Berataen. Oslo: The Fridtjof Naaaea Institute, 1001!, lg3 p.

The deep seabed ia vary different from anything we have experienced ao far. Whilewe as humans are used Co a world in constant change, the oppoaiCe ia Che case oa thedeep seabed. Even though there ia limited knowledge of the flora aad fauna on theabyssal plain, we know that it ia a very stable community, that changes happen veryrarely. The very poor supply of nutrienta is another characteristic of the deep seabed,

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Political and Legal AspectsToday commercial exploitation seem destined to be regu!ated by two

competing set of rules and regu!ations or regimes -- the UN Law ofthe Sea Convention and national legislation.

Et would be rather unfortunate if this should be the rea! state ofaffairs when commercial exploitation actually commences. I believe,for example, that private banks will hesitate to finance activities towhich there is attached considerab!e legal uncertainty.

The United States, the United Kingdom, and Germany have refusedto sign the LOS Convention because they believe that the deep sea sec-tion, Part XI, does not provide them with sufficiently attractive possi-bilities. The last couple of years a number of centrally placed personsand groups within the Preparatory Commission have come withproposals the purpose of which has been to enter into a dialogue withthe Americans. The United States participates in the talks initiated bythe UN Secretary General with the aim of enticing the United Statesand the other countries to again join in the collaboration frameworkof the Law of the Sea.

I do not think there is reason to believe that the initiatives of theSecretary-General over the next two to four years will greatly alter thepresent state of affairs. I suspect that the Americans feel that time willcontinue to work in their favor in much the same way it has since!982. It is also my impression that the law of the sea and deep seaminerals are not very high on the list of priorities in the StateDepartment in Washington. In the longer term, however, I believe thata single regime will emerge, simp!y because it will be in everybody' sinterest.

Psyeho1ogical aed Ideo1ogical FactorsThere are also good reasons to pay attention to the existence of some

psychological and ideological factors associated with deep sea mining,not least in the United States.

There is much disappointment among the 'pioneers' who were veryoptimistic during the l 970s, and who had high hopes of the l980s, andwho now perhaps have a much def!ated view of the prospects. Newpeople may, however, inject new optimism,

Let me in this context also offer a few remarks about ideology, andcompare the mode of thinking about and organization of deep sea ac-tivities in the United States and Japan.

ln the United States all activities, roughly speaking, are supposed tobe the exclusive province of private enterprise without public financ-ia! support. We might term this attitude "ideological capitalism." In Ja-pan. on the other hand, a collaborative framework has been created in

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this field as in so many others in which industry, shipping, reseai'~'binstitutions, and governmental bodies participate with much gove~-ment financial support for research and development. We can caII tbis"pragmatic capitalism."

It should provoke thought among many Americans when we ks<~that capitalism, if anything, ought to be and is, per definition,pragmatic.

Fkt Prospects -- Realism versus Pessimism and OptimismOn the basis of these remarks, I would like to conclude that ~ere is

no reason for the pessimism to which I have repeatedly referred- AsI have said on other occasions, there are, on the contrary, many indi-cations that the level of activity will increase sharply towards the estdof this decade. In this connection it is interesting to recall the conve+-tiOnal wiSdOm of the l970s, which prediCted that COmmerCial exploiW-tion would start within a few years and would yield high profits- ~eoptimists of the 1970s were wrong, but I believe the pessimists of ~19&os also are wrong. One should in any case refrain from being toocategorical. The speed of change today dictate no less.

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COMMENTARY

Milton DruckerU.S. Department of State

Before I begin, I would like to remind you that the comments I amabout to make are personal and in no way reflective of what the U.S.government might say if I were here officially.

I was heartened by the comments of Mr. Fujimori earlier this rnorn-ing. It is good to know that ocean mining research continues, thatsomeone is serious about lifting nodules even now and serious aboutcontinuing to do the research, since most of the consortia have essen-tially ceased actual operations in the seabed, I would like, however, tofocus for a moment on the listing of future problems contained in hispaper, however. The problems that remain to be solved are daunting.In order to invest in solutions to those problems, one requires a highdegree of confidence in the future viability of ocean mining from aneconomic, technical, and legal perspective. Each of these areas willhave a role in establishing the costs of seabed mining.

Mr. Fujimori points out that environmental impact has also becomean important issue, and we have heard that repeatedly this morning.Now, as we are more aware of environmental issues in the oceans, weare increasing research on these issues in all of' the seabed miningcountries. Environmental costs create additional uncertainty that willundoubtedly increase as the costs of ocean mining are evaluated. Mr.Fujimori s final conclusion is that the financial burdens of the con-vention that was signed in Montego Bay must be alleviated if seabedmining is to move forward under the Convention. He explains that the"excessive obligations" attached to resource development give cornpan-ies cause to lose interest in seabed mining. This was a natural tie-inwith the salient comments that Mr. Kapumpa made afterwards. Beforecommenting on these remarks, I would like to take a moment to lookat some of the comments made by the keynote speaker, which alsohave a bearing on this morning s discussions, Mr. Ogiso pointed outthat the irony of the Convention is that it hinders seabed developmentwhen the Convention's stated goal was to foster that development. Hemakes several interesting suggestions. Although I am not in a positionto comment on the specifics of those suggestions, I would like to pointout that this kind of fresh thinking about how to achieve the goals thatthe delegates in Caracas sought is invaluable to making progress onsolving some of the issues that seabed mining poses for all of us.

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Mr Kapumpa's paper provides additional insights into how thingscould proceed. Although it would be difficult to comment on all ofthem, I do wish to comment on some of the most interesting. It strikesme that Mr. Kapurnpa's comments on the results of the technicalgroup that reported back to the Preparatory Commission are interest-ing in relation to Mr. Fujimori's comments. Mr. Yapumpa states thatthe two exploration phases would cost $42 to $49 million. Given Mr.Fujimori's comments on the financial burdens and Mr, Qgiso's corn-

nts on the likelihood of seabed mining in the near future, such anexpenditure looks quite high indeed. It is only a sample of the kind ofproblems that I think the PrepCom will be forced to face.

Since it was raised in Mr. Kapumpa's comments, I would also lik<to agree with an implication he makes that the production limitationin Article ! 51 of the Convention did not in fact protect copper orcobalt producers, obviously a matter of some concern to Mr. Kapum-pa's country. Quite the contrary, it only protected nickel producers.since copper from the seabed would be in an insufficient quantity t+affect prices of copper globally and since even one seabed miningoperation would have a dramatic impact on cobalt production. I couMonly suggest here that Mr. Kapumpa take a look at the InternationalCopper Study Group which we are forming now to look at coppermarkets and how copper markets work. The facts that Mr, Kapumparaises in his discussion led me to marvel at the vigorous cohesion withwhich land-based producers of seabed metals hung together during theConference despite their great diversity of goals.

I would add, parenthetically, that in Mr. Fujimori's paper he addsmolybdenum as a possible product of seabed mining. As a citizen ofthe largest molybdenum producer in the world, however, I am still notled to support the production limitation, notwithstanding the fact thatmolybdenum might be a product of the oceans.

Mr. Imnadze in his discussion raised the prospect that Part XI mig>tbe in need of serious overhaul and that new information might lead t<a freeze. Not on! y in the environmental area has there been new infoI-mation that would in fact have an impact on Part XI. The decision-making procedures were structured for a global political situation thatwas quite different from what we see today. In fact, the Group of 7~itself now sees that within the Group there are subgroups that havedifferent interests. The New International Economic Order in thediscussions current in the 1970s looks very different in the light of the1980s. I am quite certain that, were we to draft Article 150 today, itwould look very different from the one drafted then.

There are many anachronistic provisions in the Convention, andthey affect the way we look at seabed mining and the minerals that

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come from it. Some of the reasons they are anachronistic rehte todevelopments in the technology for land-based mining. Alternativesources for strategic materials such as manganese have arisen. Newtechnology has meant that it is easier to replace cobalt, so that thestrategic value of the seabed Ininerals is substantially less than it was,even though the cost of obtaining those minerals has not declined. Ifseabed mining is to exist, the body of regulation contained in the textof Part XI would clearly have to be changed dramatically. There isvery little that one can see in Part XI that would stimulate a brand-new mining industry to begin, given the uncertainties, costs, and thechanged role of seabed metals in the world economy.

Nonetheless, I would like to thank Mr. Kapumpa for his own freshthinking. I think he has made a substantial contribution to the debatethat we are all facing now. His ideas have been very interesting andundoubtedly will be considered very carefully by everyone interestedin a universally acceptable convention.

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DISCUSSION

Coors N'tiling. I would like to give the previous speakers a chance torespond to the comments made by the commentators, Who would liketo respond?

kfasaeicN Fujinaori I would like to ask a question on the economYand the profitability of natural resources existing on land in coatasstto mineral resources existing in the sea. Compared to land-bs!Iodresources, are sea-based resources economically viable or not?There are land-based resources composed of laterite and garnierite.which are 1.8 percent nickel and 0.2 or 0.3 percent cobalt and vorysimilar to those minerals existing on the ocean floor. Today, in &~South Pacific region, for example, the Canadian company INCO ~the Japanese assist the production company managed by the Inloee-sian government.

Compared with those land-based resources such as INCO Sol<ILk<i» Indonesia, which are the most economically viable: minerals oa bmocor minerals «t 5,000 meters underneath the sea? Of course. the resaItsof the comparision are very clear, but from the viewpoint of faatereviable resources of cobalt «nd nickel I think the latter is important.My view is that it will take a long time before we achieve econolssy iadeep sea mining.

Nalwtlm Xapwnpa Just two brief comments, The first comment is onthe excellent commentary by Jan Markussen, and in particular ~l&regard to his comments on the issue of the universality of theConvention. His conclusion is really in the right direction, It is ilk theinterests of the US.and the interests of the Group of 77, and I believehe meant to say that it is in the interest of every single nation im theworld, to ensure that there is universal acceptance of the Conventian.

My good friend Milton has made comments but emphasized thatthey were personal views. Therefore I believe he didn't recdlycomment on the issue of the universality of the Convention. He hasbeen kind enough to say that I have put some fresh thinking inta thediscussion, and that this will be useful, but I wanted him to cotmxaeatparticularly on that fresh thinking, and say how fresh it is.

Conrad 8'@Hing. Dr. Imnadze, would you like to comment?

3S4

Lyrae Imvtadse. I appreciate the stimulating comments by the corn-meatators. There is only one thing I would like to clarify. the problemof the environmental impact of deep seabed mining. I emphasize thisproblem because in the past it never has been discussed in depth. Ofcourse, there are other serious issues that require both very seriousnegotiations and a serious adjustment of Conventional provisions. Ifully share the view that even from an economic point of view Part XIis unfortunately not very well drafted, bearing in mind the newknowledge we have received in the past decade.

I am very satisfied that all the speakers and commentators duringthis session and on many occasions -- at other scientific and diplomat-ic symposia -- expressed their willingness to cooperate, to haveunconditional dialogue with respect to Part XI, and that they all sharethe major objective of the universality of the Law of the Sea Conven-tion.

Conrad lFeIjing. At this point I would like to open the discussion tothe floor.

fgor Xolosoeskr; I am from the Ministry of Foreign Affairs of theSoviet Union. I have been Deputy Chief and Chief of the Sovietdelegation to the UN Conference on the Law of the Sea and in thePreparatory Commission from the beginning until now. The difficul-ties around the Convention are not only my professional but mypersonal concern. Let me say a few words on the origin of thesedifficulties and how we may settle them.

When the Conference adopted the Law of the Sea Convention, noneof us participants had sufficient knowledge of many things concerningseabed activities. What would be the cost of creating a first complexfor exploitation'7 This cost has increased by seven or eight times in the1sst ten years. We didn't know what the ecological consequences ofseabed activities would be, not only for one or two regions of theocean, but for the ecological system of the ocean as a whole. It couldbe a very serious problem because it will need a new and maybe costlytechnology, which we should understand before we decide how toexploit the seabed resources. By what means'7 By what organizations

%e adopted the Convention according to the gentleman's agreementand the principles of package deal and consensus. These principlesprovided that the conference delegates should make every effort toreach consensus, but that if these efforts were made and there was noresult, the Conference could vote. And this small vote became a bigproblem. It was fatal, I think, for the future of the Convention,

because when the moment came to adopt the Convention, there was aoconsensus among the participants, and some countries couldn't acceptit. They voted against it or abstained. Notwithstanding, the Convec-tion was adopted. This is the second cause of the difficulties we hav~now.

What can be done in the future? First, we can acquire knowledgeof seabed activities and the surrounding environment of the sea aaluseabed. Second, we can try to find the ways and means and organiza-tional form by which we can thoroughly discuss the existing difficuI-ties and find the procedures for taking decisions that would make AeConvention mutually acceptable and universal. To do this, I agree withmy distinguished colleague, Mr. Drucker of the U.S., that we shouldhave a new thinking, a creative approach to this problem. In thiscoanection the idea presented by Mr. Kapumpa should be consideredattentively, but I would like to add that when we discuss and adoptfuture decisions, we should act by consensus and only by consensus.

Tullio Trna@ l would like to pose a question and make a couple ofcomments linked to the question. Dr. Imnadze has in his veryinteresting report spoken of the possibility of freezing certain parts 0<Part XI. The word "freezing" indeed has some currency in the circleof those who are worried about the future of the Convention and ofPart XI, lt is clear, however, that "freezing" is not a word in thedictionary of lawyers, and certainly Part XI is not one of these fishyou see i» the Tokyo Fish Market which can be frozen. What does ourdistinguished friend Dr. Imnadze mean when he says "freezing"?

What has got to be done for Part XI is a process that would lead tocertain changes, as Dr. Markussen has said in his most stimulatingcomment. These changes should make it possible for those who don' twant to ratify now to ratify after the changes have been effected. Themain objective is not to make deep seabed mining possible, but tomake possible entry into force of the other sixteen parts of theConvention. Whatever we do -- and I really hope that a dialogue tothis end wiB start soon -- the result should be of such a format thatgovernments and parliaments will recognize it, put together with tb<Convention, as ratifiable. We can give to this result many names but,unavoidably, it will belong to the category of international agreements-Why? Because the Law of the Sea Convention is an internationalagreement, and in order to change it we need an internationalagreement.

I am fully aware that there is also an institutional mechanism iaforce -- the Preparatory Commission � and that it can go a long way

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toward making our problems easier. Unfortunately, I am alsoconvinced that it cannot go all the way. Even if we interpret thecompetences of the Convention in the widest way, and we couldindeed, there is still the problem of goveraments and parliamentsrecognizing the end result as something that chaages the Convention,and this I don't think the PrepCom could do.

Lyrae l~nnadze: The freezing of Part XI or of certain provisions of itis much like putting a fish into a freezer, because we do it to keep thefish for the time we need it. Speaking seriously, maybe the word"freezing' is not the best. I think that it is understandable and clear,but we may use the word "moratorium" if it is preferable. Of course,it is a very unusual situation for an international agreement. TheConvention itself as well as Part XI are very unusual agreements.There are ao other precedents in international law for such compre-hensive agreements and the package deal and so on. If we want thisagreement to be a legally valid one, maybe we have to find someunusual solutions for the problems that we are facing.

Edward defiles: This is a very important discussion indeed, and somerather serious points have been discussed with great delicacy by theindividuals oa the stage. Since in my case there is no question but thatI speak only for myself, I don't feel the need to be so delicate.Basically I want to deal with the question of how one might arrive ata solution acceptable to all parties, because I share Mr. Kapumpa'sview, as I have stated in this and many other fora, that we need auaiversally acceptable convention or the entire convention will erodeaad the consequences of that erosion will be quite serious for all of us.If I look at what Mr. Kapumpa said a couple of days ago about theGroup of 77 not being certain that the future of seabed mining is allthat bleak from an economic point of view, and I add that to what myfriend Jan Magne Markussen has said, I see a certain amount ofunnecessary uncertainty here. Jan Magne and I have had thesedifferences before. I find his point of view oa the future of seabedmining quite a bit rosier than mine. But even if I accept his figures,there is no possibility of serious activity for at least a generation, atleast twenty-five years. The net present value of manganese nodulesin anybody's accounting is therefore zero, and the Group of 77 shouldaot be led to think otherwise.

If ia fact there is nothing really major at stake around the corner,sad Mr, Fujimori's paper is especially helpful in this regard, the majoraim that we ought to be pursuing is protection of what else is in the

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Convention. Seabed mining is a small tail wagging a very»rge ~8-Therefore, how best to do this' Ambassador Kolosovski is qn ~correct when he says that we did poorly in the Third UN Conf ere+~on the Law of the Sea -- and I spent ten years of my life in thats too-- because we tried to deal in detail and design a system on the basis ~fictitious assumptions. I think we ought not to do this ag»n. and Ithink we ought not to spend the precious moments available to' us no~when people are talking seriously about compromise to try to fthm PQ3G in great detail. Therefore the urgency is to do the minimal job ofwhat will get the Convention ratified by all concerned and in>~freeze the rest with some trigger for coming back to it should scabmining become a reality, Let's not get away from that focus- N«I 8else is important.

Attesty Sugairimx I would like to comment briefly on the issue +adpose two questions. In the presentation that I made earlier this year «the American Society of International Law Annual Meeting, I fuIIYsupported the idea of freezing the whole of Part XI until the econorni<and commercial realities prove it necessary to restart negotiating theseabed mining regime. I also put forward a possible practical leg<argument for moving in that direction. The argument, which«ffect basic political positions of different groups of states, wag the'proviso of fundamental change of circumstances. This could beanalyzed and taken into consideration while thinking abou~ ~phrasing of the seabed regime part of the Convention.

I should like to ask two questions. The first one is: Can you cite aaVother example of such persistent attempts to create such a det»I~4international regime for activities which are to a great extent and forlong years ahead quite imaginary' The second question is closeIYrelated to the first. Do you think that the question of the deep sea~regime would have been discussed so seriously or discussed at aH if iihadn't been so tightly linked to the world's -- and especially maritijnnations' -- concern over the future of the international law of the sea~I think the last commentator from the floor just answered ~4question, but if you find it necessary to answer again, I will be pleasedto hear from you.

Msnrbe Eagempe Very quickly a comment on Professor Miles'interesting point there. You may realize that the tail of a crocodile--and I come from Africa -- is the most dangerous part of the crocodile-It is true that current knowledge shows that seabed mining is certainIynot around the corner. But if you freeze those parts, you may then

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take them out fresh thirty years from today, and we shall still face aproblem similar to the one we face today. If that is the only way toresolve our issues, well and good. But we may want to find a perma-nent solution, if that is possible. Some say it's not possible. I have thefeeling that, with the new thinking, a large chunk of the seabedmining provisions of Part XI may be resolved this time around.

kfilton Drucker. To address Mr. Kapumpa's two comments to me, Ithink I can state unambiguously that the U,S. government does favora universally acceptable convention. The problem is that we didn' tfind the convention signed at Montego Bay universally acceptable.

How fresh is the thinking? I worked on the treaty as a member ofthe U.S. delegation for some years, and when I left the delegation, thelaw of the sea room was a very stuffy room with a lot of stale air. Nowreturning, I see some people have opened the windows so that the airis getting a lot fresher. Yes, I think there is something going on,something new.

JtP. Await. I owe an explanation to some of my friends whom I upsetby some remarks I made the other day. I said that the U.S. was boundby the principle of the common heritage of mankind even if it has notsigned the Convention. To some extent the question is really academic,because the exploitation of the seabed, as we all know, is not going tobe economically feasible for the next generation, as Ed Miles says, andthe Convention provides for a review of its provisions after twenty-five years anyway. But it is not a question of economically viableexploitation; it's a question of principle.

How is international customary law formulated? All of us know thatthere are two necessary elements for a binding custom, namely thepractice of states, and what is called opinio juris. All of us also knowthat the basis of international law is no longer consent but consensus.Now if that is the case and there is a consensus that has emergedaround this Convention, the question is: What is consensus? Does itmean universality? Can one country, however powerful, say that justbecause it doesn't accept this Convention as binding, that is the end ofthe Convention and no longer can anybody make law without itsconsent?

If you look at the emergence of custom on the continental shelf, asearly as 1950 Professor Lauterpacht in his writings on the continentalshelf was saying that it had already become part of customaryinternational law, If you look at their writings on custom, JudgeBaxter and Judge Jessup said that as soon as fifty states said that they

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had accepted it, then it became preponderantly accepted. Here ~Ymore than fifty states have come to accept the Convention. In an agewhen democracy is almost universally accepted on a national level. onecannot say that it need not be accepted on the international levelwhere only the rule of the few should continue to prevail. This seeressstrange.

We hear from the U.S. that the common heritage of mankind isaccepted in principle, but that they do not accept Part XI of theConvention to exploit this common heritage of mankind. Then, whatdoes acceptance of the principle mean7 According to the U.S., it >asthe right to go it alone under the so-called freedom of the s6asdoctrine propounded by Hugo Grotius. All of us know that under tbisfreedom of the seas doctrine the underdeveloped states were, to saythe least, second-class citizens. In any case, once the principle isaccepted, you cannot exploit the resources except under an interna-tional agreement. If you can reach that agreement, fine; but Youcannot say that you will go it alone or that you will start exploitiagunder the so-called mini-treaty or whatever. Sometimes it is said tbatif you give 3 percent of what you have exploited from the seabed, youhave accepted and fulfilled your obligation under the commonheritage of mankind. I'rn not sure throwing a few crumbs to theinternational community means the acceptance of the commonheritage of mankind.

In any case, I think the time has come to accept the principle of thecommon heritage of mankind as a universal principle and comm++future not only on the sea but also in other areas, including t~eenvironment, space, Antarctica -- the world's commons, as they arecalled. They have not so far been exploited and appropriated accord-ing to the chaotic play of selfish interests of states.

Therefore, I think it is time to recognize this interdependence ofstates and recognize the principle of common heritage of mankind asuniversally acceptable. The seabed beyond the limits of nationaljurisdiction cannot be exploited except under an interaatio~agreement. How we reach that agreement, of course, is another matter.

Vhufimfr Pro jimor. I am from the Ministry of Foreign Affairs, SovietUnion. What I express here is my personal view, not an offi&0statement. In the light of what we have heard this morning, I wouldlike to make a small remark of a general nature on what prevents theConvention from becoming a universally accepted document. Su<6,every responsible government will agree that maintaining peace,security, and cooperation in the oceans requires certain efforts and

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certain expenses, and I believe that the government of my country isno exception. The Convention is a good instrument for this purpose,but to be universally accepted its two mechanisms must be clarified.First, it should be a mechanism of proper guarantees, and second, itshould be a mechanism of proper control.

A mechanism of guarantees means that there should be guaranteesthat the cost of means to achieve the result does not exceed the cost ofthe result. By 'cost' I mean efforts, money, financial terms ofcontracts, limitations of production, compensation funds, obligationsof the pioneer investors, environment, and other such things. Thereshould also be a guarantee that the costs at the beginning and in thedistant future will be reasonable.

A mechanism of control is necessary if the costs are rather high. Inthat case, the parties with high obligations should have the right tocontrol the use of their contributions.

I am afraid that we do not have now a balance between the cost ofmeans and results and between rights and obligations.

Nundm Xapumgxx Our colleague from the USSR must be an economist,because he uses language that is a little bit above me, but l'll try tounderstand him. I take issue with his statement that the costs of rightsand the costs of obligations of registered pioneer investors don't seemto tally. I definitely take issue with that statement, because the pioneerinvestor regime was created to recognize the exclusive rights to certainareas of those people who had spent money, and in return those peoplewere to face particular obligations. This was very clearly stated inResolution II. We have now realized that some of the obligations haveto be discussed properly, and that's what we' re doing, but if weattempt to move away from accepting that principle, then we havesome difficulties there. I recall that in my youth when they taught usthe history of American independence, the rallying call was, Notaxation without representation." You can't have your cake and eat it,too; you can't have rights to a mine site to the exclusion of everybodyelse if you don't meet your obligations; or, as in almost every societywhere they practice monogamy as a form of marriage, if you have theexclusive rights to your spouse, you have the responsibility to lookafter that spouse. You can't separate the two.

Chan-ho Park The regime of deep sea mining has been a permanentmystery to me. I attended all the sessions of the Third UN Law of theSea Conference but the more I look at it, the more mysterious itsounds. International legal, economic, scientific, and technological

scholars have been working on this for over two decades bet ~agreement is in sight yet. What is keeping it from settlemeatV Iscontemporary human wisdom really incapable of settling this, or is ~~issue too important? On occasions such as this, I feel I am like the snabwho wanted to walk across the Sahara. In the course of his preparatio+for the trip he wanted to buy a map of the Sahara. He stepped iato ~department store and came out with a sheet of sandpaper.

Now I would like to address myself to Dr. Imaadze. I eajoY~reading your paper, "Common Heritage of Mankind, A Concept ofCooperation in Our Interdependent World." Is the same cosset@<applicable to other human interest areas like the Antarctic or outerspace? Would you care to comment on how advisable it would bo toapply that same concept elsewhere?

Leeae lemufsr. The answer depends on the interpretation of thecommon heritage of mankind concept. I see no difficulties in agpIYinSthis concept in such areas as the moon if we understand that ~ecommon heritage means the peaceful, environmentally safe use >fcertain areas and resources, where all nations have equal right3 a+dresponsibilities. We can also include within the scope of the commieheritage principle some sort of international management. But it' »different thing if we include certain fixed structures as, for iM~~+.stipulated in Part XI, which are very controversial and very dependenton certain areas, certain conditions or circumstances, and so on.

So if we just include those three or four general principles w'i~the scope of common heritage, I see no difficulties in using thisconcept of global commons. But if we include some particularmechanisms, we have to study the situation in each particular i~.

Scare Yassma I am with Sumitomo Corporation and Deep OcwmnMining Co., Ltd. of Japan. Deep Ocean Mining Co., Ltd, is one offour members of the international consortium for a deep ocean mini>Eproject with INCO Ltd. of Canada, Sedco-Forex, Schlumberger, a U ~.company, and AMR with Metallgesellschaft AG and Preussag of theFederal Republic of Germany,

I would like to address questions to Mr. Imaadze and to Mr.Kapumpa. First, to Mr. Imnadze, you stated some very importantaspects of environmental problems associated with deep ocean miningactivities. Could you elaborate on some of the programs or projectsyou have, if any, to solve those problems in the future? Second, mouldthere be any implications in your proposal to freeze Part XI for theexecution of Part XI if UNCI.OS should come into force ia the

future? It appears to me that it mill be expensive if you continue toaccept, for example, the annual fee of U5.$1 milton as accountspayable for many years to come during the time of the freezing ofPart Xl, If you do not freeze the obligation for the payment of theannual fee of US$1 million during the freezing of Part XI, you willface a considerable amount of accumulated accounts payable beforethe start of the commercial mining project. Will that be acceptable toyou? Though you stated some important aspects of the financialproblems in your paper, I should like to hear your frank opinions ontechnology transfer, the review conference, and production controls.Do you think that these, as well as the financial issues, are problemsfor you?

My question to Mr. Kapumpa: I am sure that since 1982 thePrepCom is making its very best effort to compromise on variousissues to create a rational legal framework to make deep ocean mininga reality, but it appears that some very basic fundamental issues arestill unsolved, Do you think that you could have some furtherdiscussions with developed countries to make some further compro-mises for Part XI?

Lcrae Iauuufse: The Soviet entity Geologica, which is responsible forSoviet activities on the deep seabed, continues to invest a certainamount of financial resources in deep seabed mining projects, butalmost all that money is now spent on environmental studies. Notbeisg an economist or a scientist, I unfortunately cannot now provideyou will full information concerning the essence of those projects, butwe have a certain exchange of information with Japanese colleaguesfrom industry, so maybe you may ask your colleagues who areinvolved in this exchange.

As regards particular problems you mentioned, yes, there are fiveor six major issues which create difficulties for any future andpossible operator on the deep seabed and the relevant country. Thereare conditions of access to mineral resources, production limitation,technology transfer, financial obligations of the contractors, as well asthe very important problem of decision making, in particular on thequestions which involve financial obligations for states parties andeconomic adjustment for developing land-based producer states. Wealso include such problems as the composition of the board of theAuthority and decision-making on non-financial matters.

I want to add a reflection on the comments by Mr. Kapumpa. Ofcourse, I too definitely prefer to have some concrete and final solutionto all the problems arising from Part XI and deep seabed mining

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activities, But unfortunately we have spent more than twenty yearstrying to solve those problems and have failed. Now all the rest of thefifteen or sixteen parts of the Convention are in practice frozen- Ithink that it is preferable now to freeze or to put aside all tluteproblems arising from Part XI, to preserve the general principleswhich are covered by the common heritage of mankind, to make itpossible for the Convention to become a valid and viable le&instrument. In the future when we will have both the necessity and Nepossibility to solve the problems of deep seabed mining, we can do it-

M~Wm Xagermpa On the issue of further compromises regarding theset of obligations that have to be fulfilled by the pioneer investors inreturn for their enjoyment of those exclusive rights they receive asregistered pioneer investors, I think the chances of resolution are veryhigh. After two years of discussion, we have come to two points +nwhich we can almost agree. The first is the $1 million annual fee inrelation to costs and expenses to be incurred for exploring at least onemine site up to the end of stage I, in accordance with the explorationplan prepared by the Group of Experts last year, at the stage where Idecision can be made whether or not to proceed to stage II. The secondpoint on the obligations, including the question of tranfer of technolo-gy, can easily be resolved, maybe as early as next month at the Ne~York session. The transfer of technology is not free; it is not autornst-ic. It's simply available for purchase if the money is available-Obviously the Enterprise has no money to buy any technology, to buyanything, so there's no company that should worry about it.

The other areas that require compromise within the Convention�decision-making, financial matters, and so on, that are so-called hard-core issues over which the chairman of the Preparatory Commissionis slowly attempting to deal with -- I cannot say whether they arelikely to be resolved immediately. But within the Convention itselfthere seem to be provisions that can take care of various interestgroups in the decision-making process and therefore may warrant andguarantee a seat for the U.S. because of the various interest groupsembodied therein.

Aeatoly EolodUe Dr. Imnadze raised two constructive points, but Iam disappointed that only one is in the discussion about the rnoratori-um. %'e have to have a dialogue to find the appropriate solution tomake this Convention universally acceptable, as Mr. Dr ucker said, andAmbassador Kolosovski reminded us of our obligation to go furtherand to find the appropriate solution.

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The second proposal that Dr. Imnadze raised was a proposal fromSatya Nandan and his deputy Mr. Levy. Mr. Levy stated at the 17thPacern in Maribus Conference in Moscow last June that it would bevery fruitful to consider a proposal about a protocol or memorandumon mutual understanding as an addition to the Convention. If freezingis unacceptable, maybe we can consider this idea among the partici-pants and even find some other solution in the process of the dialogue.

Professor Park raised the point about the spreading of the principleof common heritage of mankind to other areas. In my opinion, this isunacceptable at this stage, at least with regard to the moon and theAntarctic. The principle of common heritage of mankind is not onlyaa idea. It is reflected not only in Article 136 of the Convention butin Article 137, paragraph 2, where it is said that all rights to theresources of the area are vested in mankind as a whole and that onbehalf of mankind the Authority will act. Also Article 140 states, inreference to Article 160, paragraph 2 f! i!, that we shall take accountof the interests of developing countries and that other countries whichdo not contribute in the active process of development and exp!orationof the seabed wH1 also gain the benefits. That is why, at the early stageof the deliberations, our representatives in the UN and unofficialscientific forums were against this concept, as Professor Oda remindedme ia speaking of the first time we met in 1969 at the Rome Confer-ettce. He said he understood why we were against it, "because yousupport the principle of socialism: who does not work has no right toeat."

Why is it unacceptable for us? The Antarctic is now subject to thespecial treaty of 1959. This is a special regime without any authorityand without any obligations to give access this area except through anauthority, at least at this stage. One reason why the USSR did not signthe Moon Treaty of 1979 is because the Moon Treaty also spoke of thecommon heritage of mankind.

It seems to me that we have to split our understanding of globalcommons and common heritage of mankind. Article l37, paragraph 1,in declaring that no state shall claim sovereign rights and sovereigntyover the Area and its resources, is describing a global commons. Butgranting access to the Area only through the Authority and providingbenefits to mankind whether they take part in seabed activities or not,substantial elements of the common heritage principle, is somethingelse indeed.

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LUNCHEON SPEECH

PRKPCOM AND MIDNIGHT GROUP:DEEP SEABED EFFORTS 15 LIMBO

Dr. Renate Platz6derStiftung Wissenschaft und Politik

Ebenhausen, Germany

Ladies and gentlemen, dear friends. It was suggested by the or-ganizers of this conference that I speak on the almost insoluble issue:accommodation of alternative deep seabed mining regimes and theUnited Nations Convention on the Law of the Sea.

In the past, the Law of the Sea Institute conducted workshops onalternative deep seabed mining regimes and panels of annual confer-ences that addressed this topic. I was never invited to participate inthose activities, since it was known that I would have defended theConvention and thus would not have made a constructive contributiontowards the thinking in leading circles of the international law of thesea community.

I do not know why I was invited to Tokyo. I tried to find outwhether LSI had changed its policy in assigning certain topics tocertain people or whether it was thought that I had changed my views.I didn't try to communicate with my dear friend John Craven becauseit is an old tradition since Caracas in 1974 that we talk to each otheronly when we meet in person, I sent several faxes to Edward Miles,whose fax machine seems to select messages and connect to a bigwastepaper basket. Being entirely on my own, I took the liberty toreformulate my theme in order to streamline the issue to the currentsituation, and it will read, PrepCorn and Midnight Group: Deep SeabedEf forts in Limbo.

I avoided the term 'alternative regime,' because I cannot see thatsuch approach would contribute to solving the problem of making theUnited Nations Convention on the Law of the Sea universallyacceptable, while considerable efforts by the PrepCom and theMidnight Group are underway. By saying that such efforts were inlimbo, I wanted to indicate that only cautious and skillful handling ofthe matter will eventually lead to a positive result. Thus, I do notexclude that the alternative regime approach will come into the pictureagain.

The idea of negotiating an alternative deep seabed mining regimeoriginated in Washington when national legislation was introduced. Itwas proposed by the U.S. government to regulate deep seabed mining

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activities on the basis of national licenses and so-called reciprocatingstates agreements. The alternative regime was also referred to as amini-treaty. ln promoting this idea, the United States has not beensuccessful so far, However, after the adoption of the Law of the SeaConvention in 1982, the first multilateral deep seabed agreementoutside the Convention, the interim agreement was signed by theFederal Republic of Germany, France, the United Kingdom, and theUnited States. The Federal Republic of Germany, France, and theUnited Kingdom insisted that this agreement was in conformity withthe Convention. Three other agreements followed: the provisionIIunderstanding of 1984, the confidential agreement of l986, and theMidnight Agreement of !987. These four agreements deal withexchange of data concerning mine sites and settlement of overlappingclaims. From among the ten developed pioneer investors, Japan signedone; Canada, France, and the Soviet Union two; the Federal Republicof Germany signed all four; and the others signed three conventionsof this type.

These agreements, in particular the first two agreements, were seenby the Group of '77 as activities undermining the Convention and thebeginning of an alternative regime. The Midnight Agreement was Dotheavily criticized because it made possible the registration of the firstpioneer investors, namely France, the Soviet Union, and Japan. Theregistration is also considered as a decisive step to implement the deepseabed regime of the Convention. Whether more agreements aInongdeveloped pioneer investors will follow will depend on the nature ofthe upcoming deep seabed activities and whether the PreparatoryCommission or the future International Seabed Authority will be in aposition to keep pace with such activities. So far, these agreements canbe seen as supplementary to the Convention. If, however, the problemsof the Preparatory Commission cannot be solved in a manner accept-able ta pioneer investors, the conclusion of parallel ar even alternativeagreements cannot be excluded.

The work of the Preparatory Commission is complicated by sovermlfacts. The Convention was not signed by all pioneer investors. Geepioneer investor does not participate in the meetings of the Freparato-ry CoInmission and two others participate only as observers, reluctant-ly, l should add. All developed pioneers expressed concerns over %edeep seabed mining regime of the Convention. Three pioneer investorsmade declarations upon signature of the Convention to the effect thatthe deep seabed mining regime shows considerable deficiencies andfIaws which will require rectification. And finally, none of the elevenpioneer investors, including India as the only developing pioneerinvestor, has become a party to the Convention. Consequently, the

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Preparatory Commission faces severe difficulties to fill its mandate,which is to take all possible measures to ensure the entry into effectiveoperation without undue delay of the International Seabed Authorityand the International Tribunal for the Law of the Sea.

It is generally felt that the major obstacle to a successful conclusionof the work of the Preparatory Cornrnission is the policy of non-participation of the United States government. However, the work ofthe Preparatory Commission with respect to the problem of makingthe Convention universally acceptable produced some positive results.First, four understandings concerning the registration of pioneerinvestors were adopted. These understandings were also instrumentalto the settlement of overlapping claims among all developed pioneerinvestors, including the United States. Second, the PreparatoryCommission took up the issue of renegotiating pioneer investor obliga-tions in view of the situation that commercial production of deepseabed minerals will not take place in the near future. Third, thechairman of the Preparatory Commission initiated consultations on theso-called hard core issues, which are those elements of the deep sea-bed mining regime that prevent pioneer investors from becomingparties to the Convention. And fourth, at the end of the 1989 session,all regional groups and all interest groups asked for a dialogue of' allstates to solve the problem of universal acceptance of the Convention.Only a few days ago, the Secretary-General of the United Nationsinvited pioneer investors and representatives of developing countriesand the chairman of the Preparatory Commission to an exchange ofviews. lt is a positive indication that representatives of the UnitedStates attended that meeting, which can be seen as the beginning of adialogue initiated by the Preparatory Commission.

The dialogue, if successful, will have to address the hard-core issuesand the question of the format of an appropriate legal instrument togive effect to the solutions found. The universal acceptance of theConvention will depend on whether the parliament of the pioneerinvestors and the parliaments of other industrialized states and of thedeveloping countries will be satisfied. This will be an extremelydifficult task. There will also be a psychological factor involved. Iwould like to stress that the reluctance of the industrialized countriesto become parties to the Convention has created the feeling among thedeveloping countries that they have to give up considerable achieve-ments in order to facilitate universal acceptance. In the upcoming ne-gotiations, it will be the task of the pioneer investors not only toconvince the developing world that the deep seabed regime of theConvention cannot function properly but to convince the developingcountries that the envisaged rectified regime will work for the mutual

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benefit of all states, In other words, confidence-building measu«»«required. The so-called Midnight Group will have to bear tharesponsibility. That is my opinion.

The Midnight Group is named after an agreement signed by eigbtpioneer investors at midnight an 14 August 14 1987. The agreerne+tconcerns the solution of practical difficulties with respect to overlaP-ping mine sites. The original rnernbers of the group are Belgium.Canada, the Federal Republic of Germany, Italy, the Netherlands, NeSoviet Union, the United Kingdom, and the United States. After tbspagreement was signed, the group continued to meet and France andJapan were invited to attend. The group focused on two points.namely, the better understanding of the United States' position and t>esearch for a solution to the so-called hard-core issues. The grouPcomprises now all ten developed states having pioneer investor statusin accordance with the Conference Resolution II. It should be not~that the members of the group have pursued different attitudestowards the Law of the Sea Convention in the past, and the Ouestio+arises whether they can agree on a common position in the near future-The United States' position was proclaimed by president Reagan, an~the Americans said the deep seabed regime is not acceptable in tot<-The Soviet Union had asked for a deletion or a freeze of the deePseabed mining part, Recently the Soviet Union askea for sucbstringent environmental protection provisions that the delegations +<PrepCom believe that this initiative comes close to a total freeze of the'mining activities.

It seems to me that there are four major questions to be consider~by the Midnight Group. First, can all ten pioneer investors agree ~tcommercial recovery of deep seabed minerals will not take place fo' rmany years? Second, which activities will be performed in the nearfuture? Is it only research? Is it also prospecting, testing of equipment.or even exploration? Third, what kind of legal instrument and w'iWwhat content will satisfy all parliaments of the ten developed pioneerstates, taking into account that their opinions differ with respect to theflaws, deficiencies, and shortcomings of the Conventions And last butnot least, would such a common position of the Midnight Group be'acceptable to the other parliaments of the participants of the Pre-paratory Commission, notably the Group of 77?

As to the question whether the dialogue will be successful, somehistorical, political, and legal factors will have to be taken intaaccount, When the Convention was negotiated, it was general knowI-edge that the deep seabed part was the most difficult one becausenobody had ever mined the deep seabed. Therefore, legislating suchfuture activities was based on assumptions, and it follows that the

provisions first adopted would have to be changed if they proved tobe unsatisfactory.

The Convention recognizes this fact in many ways. First, prepar-atory investments are protected in Resolution II, and the PreparatoryCommission is entitled to take certain decisions that are binding on thelater Seabed Authority. Second, the Preparatory Cornrnission is toprepare drafts of the rules and regula,tions and procedures, alsoreferred to as mining codes to be adopted by the Seabed Authority.The Mining code is to allow the implementation of the deep seabedmining regime and to develop it further. Third, supplementarymeasures can be taken in accordance with Article 311, w'hich dealswith the relation to other conventions and other international agree-ments. The four agreements of the Midnight Group members fall und-er this provision of the Convention. Fourth, the Convention providesthat additional organs of the authority can be established, such as theFinance Committee proposed by my delegation, and this proposaldates back to the days of the Conference. The Convention does notregulate the composition and procedure of such a finance committee;therefore, a proper accommodation of the interests of major contr ibu-tors to the budget of the Authority will be possible without amendingthe Convention. And fifth, the Convention contains various arnend-ment procedures.

Legally speaking and with some good will provided, the deep seabedmining regime could be rectified within the framework of theConvention and within the Preparatory Commission if the rectifica-tions are of a nature short of a forrnal amendment. I am using the term'rectify' or 'rectification,' because this term was used in the declara-tions made upon signature by Belgium, Italy, France, and theEuropean Co~munity binding twelve industrialized states, some ofthem are pioneer investors.

Unfortunately the common knowledge that the deep seabed miningregime of the Convention is probably not a perfect and workable onedid not prevail due to divergent political views, some of which seemunrelated to the deep seabed mining problem as such. Throughout theConference it was observed that difficult issues were resolved whenthe United States and the Soviet Union had talked to each otherprivately. These gatherings were described as "the elephants' honey-moon." Of course, not everybody was happy about such intimate meet-ings and their outcome, but in many instances these talks led to a moreor less acceptable solution. As I can say and see and hear, no suchhoneymoon has taken place with respect to the deep seabed miningissues. It seems to me, however, that the big powers have renewedtheir bilateral law of the sea talks. In 1989 and 1990 common state-

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ments and agreementS were iSSued, and their COmmOn pOliey Off S f~ ~ na ew

SeleCted mueS SuCh ~ PMSage Of ShipS ln the territor~ M,a fiche 'in the North P iflc. and delimit tion ~ount to a pickhgchoosing from the Law of the Sea Convention if such arrange+e<>will nOt COver other ~~ Of the COnventiOn ln the future. If OR 5f~r and honest, such p licy is only possible b awe the majority Istates voted for the Convention, although the United $tates vp~against it and the So viet Union abst ined- In addition. so far with tb,exception of Iceland, only developing countries have ratified fIConvention and prevented the Convention from becoming a d~letter. It seems to me that the big powers have every reason to fake@the disputed deep seabed issue, firSt tO reSCue the COnventipji ggsecond to honor the work, goodwill, and commitment of the majorif�of states, especially the developing countries.

Of course, others should not rest idle. In case the big power$ QQQgofagree on a way to accommodate the various interests, the resppnsibilifyto save the Convention and to prevent legal and political cha0$ jQ fbeSeas and OCeanS will lie with the other States, espeCially with the Ofjieipioneer investors in the Group of 77. Such a development would bevery unfortunate, but it SeeinS tO me that StateS wi!1 try tO riSk @Singthe Convention even without the support of one or the two superpow-ers before alternative regimes are again discussed.

In the Preparatory Commission, mostly in the corridors, severllideas are discussed: a freeze of the deep seabed regiine, a freeze afcertain provisions, a moratorium, and also a protocol dealing witbhard-core issues. In view of the fact that none of the four suggestionhas been discussed in detail and none has been rejected or receivedstrong support, I feel free to make my own proposal.

The Law of the Sea Conference began with the adoption of sgentlemen's agreement on procedural matters and served very well ifspurpose. Why should not the work of the Conference and thePreparatory COmmiSSiOn be brought tO a SuCCeSSful COnCluSiOn by>gentlemen's agreement on substantive matters? In my opinion, fheagreement should be based on the understanding that deep seabedmining on a commercial basis will not take place in the foreseeablefuture but that activities in preparation for commercial recovery «deep seabed minerals may continue by pioneer investors in theirrespective mine sites and in the mine site reserved for the Auth«ifyThe agreeinent Shall list the iSSues to be considered aS having ">~and deficiencies, and such provisions shall not be implemented ualeiiagreed by COnsensuS or changed by COnSenSuS. FurtherniO«. tbagreement should contain a clause of goodwill to cooperate "establishing the International Seabed Authority and its organs a$

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~abed activities develop, Finally, reasonable financial arrangementsspall be agreed to guarantee the proper functioning of an initialsg fhpf >ty.

Ladies and gentlemen, I am sure that in the course of the next~pgth more proposals to rescue the Convention and its mining regimewill be made. My thoughts can at best only be a tiny and very modestcontribution towards the enormous political efforts that will benecessary. If such efforts fail, however, I can come again to discussternative regimes for the deep seabed; but it is my opinion and my

wish that I will not have to address any audience on the topic ofalternative regimes. Thank you very much.

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SESSION VI:

REEVALUATION OF THE FUNCTIONS OF THE SEABASED ON NEW KNOWLEDGE OF THE SEA

THE EVOLUTION OF OCEAN POLICY

John P. CravenLaw of the Sea Institute

University of Hawaii

Ocean policy decisions have changed the course of, and left a per-manent mark on, the history of civilization. Noah s decision to buildthe Ark has, at the very least, given humanity the concept of the "doveof peace" and the potential for a peaceable kingdom. It is equally truethat major changes in the use of the sea derived from the organicgrowth of evolutionary innovations. Was it a policy decision that init-iated the Rhodian Code or inaugurated the Hanseatic League? Prob-ably not. But, it was clearly a policy decision by Pope Leo in l493 todivide the oceans of the world between Spain and Portugal. Althoughthe vast colonial empire that resulted has now melted away, its markhas been permanently inscribed on the world's geography.

It was a policy decision on the part of a monarch of Britain thatcreated the concept of marque and reprisal and the institution ofprivateering. Numerous other hierarchical pronouncements will cometo mind but, equally so, and as against these anti-consensual pro-nouncements of priests and kings, has been the inexorable consensusof society. As far as we know, the Rhodian Code was developed as theconsensus of the maritime community, as were the portolans whichguided mariners into the new and previously uncharted worlds.

In the absence of networks of communication, these hierarchicalacts of a sovereign and the organic behavior of a community wererarely in conflict. For example, the Rhodian Code and derivative Lawsare toia!ly absent from the works of Justinian and other early codes ofland law.

It was not until the evolution of the publishing house as derivativeof the printing press that the consensus behavior of society could becommunicated to both public and hierarchy and the dictates of thehierarchy could be communicated to the community at large. Such wasthe communication climate and technology that permitted HugoGrotius to introduce his great treatises Mare I.iberum Free Seas! andDe Jure Bellis et Palm On the Law of War and Peace!. Grotius wasvery much an empiricist and his "laws" were derived solely fromempirical evidence. The cruelty of his laws of war and peace were notthe product of a vindictive mind, but of a dispassionate analysis of therecord of history. It was in this same vein that he quite correctly

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concluded that "the free sea...frees the free spirit," that freedom ~<navigation was a law of the physics of the sea and of nature and aotof human election.

The ultimate policy decision of Queen Elizabeth and King James tosupport the arguments of Mare Clause Closed Seas! launched mo'«than two centuries of conflict on the high seas until the Declaration +fParis in l 856 aligned international policy and law with the realities ofthe sea. This recognition of natural law as the result of natuj~selection reached its zenith of intellectual acceptability in the late 19&century as the theory of Social Darwinism. The intellectual protago-nists for this theory were Admiral Alfred Thayer Mahan and turn +fthe century geo-politician H.J. Mackinder. As a result of thl~influence, the U.S., Germany, and France embarked upon missionsdesigned to spread power and influence into the Pacific and aroundthe world. The sea-linked chain of national power across the Pac><~had been initiated on behalf of Spain and Portugal in the sixteenth andseventeenth centuries. The British Empire came upon the scene w>~the voyages of Captain James Cook and George Vancouver ia the ~4part of the eighteenth century. The Dutch venture into Indonesiaoccurred shortly thereafter. To this was now added French PolynesIIsand German interest in Samoa, the Marshalls, and the Carolines. AHof these movements have been attributed to human behavior stdescribed by Social Darwinism. It is significant that this now Large>Ydiscredited theory was highly successful in its predictions. H-J-Mackinder theorized< as had Mahan, that the world would indeed be'dominated by heartlands having access to the sea. He thus concludedthat the western hemisphere would be dominated by the Euras~island and that Japan would dominate the Pacific. Mahan predict~that by the end of the twentiethth century Japan would be a nation af100 million people and the economic power pf the Pacific. Mackinder.adopting Mahan, concluded that the natural advantages of thegeophysical topology could be partially modified by the nature of thepeople and the form of their government. This led him to theconclusion that Germany could be the dominant economic force in tbspEurasian landmass and that there would be strong links of commerceand trade between Germany and Japan as economic superpowers. Wemodern political scientists can, of course, dismiss all of this theorizingas the fantasy of «n arcane and anachronistic indeed often racist!theory.

Whatever theory of natural selection one might espouse, it is ~+that the organic process of the growth of societal consensus is inter-rupted by war. Historians will all agree that the world cataclysm that

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was World War II was the dividing point of a world dominated by theintellectual product of the printing press and the belief that theworld's intellectual library of information was contained in books, toa new world dominated by the intellectual product of electroniccommunication and audiovisual media with the world's intellectuallibrary contained in electronic databases. In the evolutionary process,from the age of monarchs to the age of democracies fostered by thecommunication to the masses via the printed word, we witnessed oneform of hierarchy being replaced by another, i,e., monarchies dis-placed by republics and democracies only to be replaced by the dicta-torship of the state. Similarly, we may be witnessing a new age of re-volution in which the state hierarchies fascist, national socialist,Stalinist communism! born in the first half of the twentieth centurywill be displaced by the consensus networks of the twenty-first. It isin this context that I wish to review the evolution of ocean policy inthe United States, beginning with the conclusion of World War II.

In l945, at the conclusion of the cataalysmic war, United Statesocean policy was clearly defined as the sum and substance of the warat sea. In support of the war effort, ocean science, and indeed, manynon-ocean sciences were the province of the Office of Naval Re-search. University research in matters oceanic was preempted by theOffice of Scientific Research and Development under the direction ofDr. Yannevar Bush. University laboratories were established asdedicated or rededicated to a particular phase of military technology.Closely identified with the oceanic effort were the UnderwaterAcoustics Laboratory of Harvard University, the Applied PhysicsLaboratory of the University of Washington, the Naval Ordnance Testfacility associated with the California Institute of Technology, and theApplied Physics Laboratory of Johns Hopkins University. TheNational Academy of Sciences had established the National ResearchCouncil and under it the National Research Defense Committee tofocus the expertise of national security. It was within the frameworkof these institutions that the first post-war United States ocean policydecisions were made. Most notable of these was the decision to initiatethe development of the nuclear submarine, which would once againrevolutionize naval warfare and the development of the satellite asprecursor of the ballistic missile and an instrument for globalobservation, navigation, and communication. The intrusion of "swordsof ploughshare" concerns was not long in corning. Derivative of theoffshore radar picket platforms the old shakeys! was the developmentof offshore oil. This introduced the Department of Interior to theoceanic community and produced the first post-war ocean policypronouncement in the famous Truman Doctrine on the continental

helf. This, in turn, initiated the continuing division of responsibili~between the Coast Guard and the Department of the Army's Corps ofEngineers for regulation of the offshore oil industry. Qf lesser nationalconcern was the small and disorganized fishing community, Americawas a nation that ate fish reluctantly and only on Friday. The onlyexception was tuna and the United States was soon to begin a dietarylove affair with the tuna fish sandwich.

The unanticipated reaction to the Truman Declaratio+ on th+Continental Shelf was the action by Chile, Ecuador, and Peextending their territorial seas to 200 miles for the purpose ~<extending jurisdiction over marine protein resources, including tu~This was of greater concern to the Department of Defense than it w'++to the tuna fishermen who were happily operating under the financ~protection of the Fisherman's Pmtective Act, and it fostered inter-agency coordination between the Departments of Defense, Interior,and Commerce in support of State Department efforts to negotiate the1958 Treaties on the Law of the Sea. United States policy was t~secure the continental shelf tp its outer limit for the extraction of oilbut to limit jurisdiction over the water column to a three-mileterritorial sea that would satisfy Defense Department concerns overfreedom of navigation and fishermen's concerns over the harvest anthe high seas. As we all know, the l 958 Conventions were deficient indefining the continental shelf or in delimiting the width of Oleterritorial sea.

At about the same time as the 1958 Convention was being negotiat-ed, public pressure was forcing the Department of Defense to divorceits activities from those having commercial value. The establishmentof the National Science Foundation in 1963 and the passage of theMansfield Amendment to the Defense Appropriations Act divorcedmilitary and non-military science and development. The author wellremembers the turnabout in the Navy's Deep Submergence programwhich had, initially, an edict to develop military hardware thatcomplied with commercial codes, to a program with an edict tadisregard any application of non-military significance. Even so, as lateas l968 the major support for the oceanic effort of the University a <Rhode Island, the Woods Hole Oceanographic Institution, the LamontGeophysical Laboratory of Columbia University, the University ofMiami, Texas A&M, Scripps Institution of Oceanography, GreganState University, and the University of Washington were derived fromthe Office of Naval Research.

It was the Congress of the United States that took the major Ocetsnpolicy initiative that was to bring the United States to its zenith ~<coherence and organization with respect to the nation and the sea. The

Marine Resources and Development Act of 1966 established a com-mission whose task was to establish an organizational framework anda program by which the United States might most effectively utilitizethe sea. The commission conducted an exhaustive study for a periodof two years, drawing on the full spectrum of technical and scientificexpertise in the nation. The commission reported to a cabinet levelcouncil actively chaired by Vice President Hubert H. Humphrey andwhich included the Secretaries of State, Navy, Interior, Commerce,Health Education and Welfare, and Treasury, as well as the Directorof the National Science Foundation and the Secretary of HealthEducation and Welfare.

The commission's report, issued in 1969, was a complete programbased on a nationally coordinated ocean policy. There was one curiousomission from the report: the exclusion of maritime commerce andtrade.

The years 1969 and 1970 were highly significant years in nationaland international oceanic history. The Pardo Resolution had set inmotion the machinery for the Third United Nations Conference on theLaw of the Sea UNCLOS III!. It was also the impetus for theestablishment by the United States of the International Decade ofOcean Exploration. Two major oil spills, the Torrey Cary' off theshores of Scotland, and the Santa Barbara oil spill, focused worldattention on the ocean environment. The Executive and the Congressimplemented the Stratton Commission report by establishing aNational Advisory Commission on the Oceans and Atmosphere NACOA!, and a National Oceanic and Atmospheric Administration NOAA! in the Department of Commerce. The Congress also estab-lished a formal State Department Advisory Group to provide adviceto the American delegation to UNCLOS Ill across the spectrum ofpublic oceanic interests. In turn the Executive Department establishedaa Inter-Agency Advisory Group similarly to advise the StateDepartment. The National Academy of Science and the newly formedNational Academy of Engineering were similarly reorganized tosupport this new hierarchical structure. The Academy of Sciencesorganized a Freedom of Ocean Science Task Group FOSTG!, whosemembers were the science cadre of the State Department Law of theSea Advisory Group. This group was to be the core of the OceanPolicy Committee of the National Academy of Sciences. This Commit-tee, in turn, formed a bridge between the Academy of Sciences OceanScience Board, the Academy of Engineering's Marine Board, and theInteragency Advisory Group.

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Thus, in 1970, there existed, in the United States, apart froth theexclusion of input from the social and policy sciences, a fully cohereatand organized hierarchy for the establishment of its national andinternational Ocean Policy. There were a few structural weakn~+-Surprisingly, the Congress did not reorganize itself to provide +coherent legislative face with respect to the ocean. In addition, anagainst all recommendations, the Executive Of fice of the White Houa+determined that the NOAA should be housed in the Department ~<Commerce. This divided the oceanic responsibility for ocean resouro-sbetween five agencies. Commerce had responsibility for developin8fisheries, Interior responsibility for seabed resources, the Coast Guar~had regulatory responsibility for marine safety of floating installa-tions, while the Corps of Engineers of the Department of the Arashhad responsibility for fixed installations on the seabed, and theEnvironmental Protection Agency had responsibility for protection 0<the marine environment with respect to pollution associated with tb+development and transport of marine resources.

Nevertheless, the nation was well organized for its oceanic futuro-These committees and organizations were characterized by interloc<iag directorates. The author had the privilege of serving simultaneous-ly oa the first National Advisory Committee for the Oceans andAtmosphere, on the State Department Advisory Task Group, on th<Down Policy Committee of the National Academy of Sciences, theMarine Board of the National Academy of Engineering, and theDefense Intelligence Agency Scientific Advisory Board. The authorwas not unique in these multiple responsibilities. Dr. John Knauss wILsthen serving as the presiding officer of the newly formed Law of theSea Institute, as member of the Ocean Science Board, the Ocean PolicxCommittee of the Academy of Science, and was an immediate paatmember of the Stratton Commission. Our current presiding officer.Dr. Edward Miles, served for a number of years as chairman of theClean Policy Committee. Former presiding officers of the Institutive,Thomas Cliagan and Paul Fye, had similar multiple roles aadresponsibilities with respect to ocean policy organizations.

The Congress was less well organized and has remained less vrekIorganized with respect to ocean policy. No single committee in theUnited States Senate has responsibility for matters exclusively oceanm-ln the House of Representatives, the Merchant Marine and FisheriesCommittee is one such structure, but as we shall continue to remind,the Merchant Marine was, and is, an orphan of integrated UnitedStates ocean policy.

The responsibility for implementing the commission's report, "GerNation and the Sea," was, as a result of the election of 1968, trans-

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ferred to the Nixon Administration, Early in 1969, that Administra-tion established seventeen com|nissions to examine the roles andmissions of the federal government. One of these commissions wasgiven the responsibility of reviewing the "Stratton Commission Report"and making recommendations for its implementation in whole or inpart. I was privileged to serve on that commission which was chairedby former Undersecretary of Commerce James Wakelin. The commis-sion was initially enthusiastic in support of full implementation of thereport. This enthusiasm was chilled when the commission wasinformed by a senior member of the Executive Office of the whiteHouse that the commission must presume that although science anddefense were important issues, the ocean and ocean resources were notmajor economic interests of the United States. Thus, the structure ofNational Ocean Policy was being dismantled while it was being put inplace. Even so, the NOAA was established, the Coast Guard wasrelocated in the Department of Transportation, and the Coastal ZoneManagement Act was enacted. Of particular importance to thegeneration of national ocean policy was the establishment of theNational Sea Grant Program in the nation's colleges and universities.It is this program that has provided the major funding for the conductof the annual meeting of the Law of the Sea Institute.

This was the structure that existed at the start of negotiations forthe Third UN Conference on the Law of the Sea. As indicated, thePresident and Executive Office of the White House had abdicatedresponsibility for ocean policy, but this role was quickly and effec-tively assumed by the Secretary of State, who in close coordinationwith Ambassador Adlai Stevensen, made a number of significantdeclarations of United States policy with respect to the law of the sea.The United States procedure for the conduct of its LOS negotiationsconsisted of a formal set of meetings and preparatory studies on thepart of the Interagency Task Force and the Public Advisory Commit-tee to the State Department. These recommendations were the primaryguidance to Ambassador Stevenson, who was able to formulate policyguidelines for the United States delegation following consultation withthe Secretary of State. During the actual negotiations, each morningbegan with a meeting of the Interagency Committee and the membersin attendance of the Advisory Task Group and official visitors. Thus,there was continuous and adaptive input from a coherent andcoordinated hierarchical structure.

The ocean policy goals of the United States are quite clear.

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a! To develop the concept of "straits passage" and to preservefreedom of navigation and in particular freedom of navigataossfor naval ships, submarines, and aircraft.

b! To maximize the preservation of high seas freedoms La~minimize the sovereign rights of coastal states in the Kxclusiv'+Economic Zone.

c! To re-establish freedom of scientific research outside ~territorial sea, without a requirement for consent on the ~of the coastal state.

d! To establish a flag state, port state, coastal state regi>ee for theprotection of the ocean environment which would gu~~~standards not less than those adopted by the United States artsdat the same time prevent the establishment of special regi~that would inhibit freedom of navigation.

e! To prevent the establishment of a Common Heritage regis'that would inhibit United States enterprise in exploitation afthe resources of the seabed beyond national jurisdiction «adprevent the mandatory transfer of technology on other thaacommercial terms.

f! To negotiate a comprehensive Treaty which the Congress ~the United States would be willing to ratify.

As those of you who participated will remember, the United Sta~fo~nd it very difficult to negotiate within the machinery of the Thh'dUN Conference. This machinery was itse!f established on an adsLpti~eand "organic basis." The UN Secretariat had recognized at the outsetthat, due to the scope, complexity, and the number of nations thatwould participate, the established formal treaty negotiation prmAsseswould not work. A committee under the chairmanship of Ambassadas'Christopher Pinto of Sri Lanka made a scholarly investigation ef theprocess and made recommendations which, though theoretically souls@,were too innovative to find acceptance. In essence, the organizatiassproposed by Pinto would have identified adaptive hierarchical strtsc'-tures which were based on the perceived importance of the issuesbeing considered to the nations who were most concerned.

In the alternative, an informal negotiation process was initiated.which in its initial structure resembled the formal negotiationprocedure, except for adherence to formal rules of procedure and thecfear understanding that the process would not form the basis f' orlegally binding travaux preparatoires and that decisions would be madeon the basis of consensus, absent a formal motion for a vote.

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This process was unwieldy in the extreme and there were soonestablished networks of special interests that would generate texts thatwere only partially debated in the formal sessions. These networksincluded "The Group of 77," which were in fact greater than 100developing nations; "The Group of 5" -- the maritimes USSR, UnitedStates, Japan, France, and the U.K.; the Evensen Group; and other"clubs" and networks of nations concerned with fishing, with mining,with the environment, etc. The United States' scientific establishmentfound itself in a rather lonely position with respect to colleagues fromother nations within the community of LOS delegates.

The innovative and gratifying surprise of the second session of theLOS conference was the generation by the chairmen of the informalgroups of an informal Single Negotiating Text, which was intended tobe, and was in fact, a consensus document, The success of this proce-dure was such that it was repeated at each session. ln one session, oneof the chairmen violated the tacit rules of this procedure and produceda document that was not, in fact, consensus. This was recognized byall and shortly thereafter there appeared an alternative to thisdocument which was accepted by consensus as the consensus.

Consensus is an anti-hierarchical process and its success dependsupon network communication. The explosion of worldwide communi-cation technology and its rapid evolution from one of limited-channel,one-way communication from hierarchical structures to the public tothe current growth and generation of multichannel, multipath, highinformation, globally transmitted, individually interactive, networkproactive, and consensus- building information systems is central to anunderstanding of the changes that now occurred in the developmentof national and international ocean policy structures.

In the early l970s, network television was well developed on aglobal basis. This was complemented by satellite communication,which made international telephone available to the delegates wishingto consult with their home governments. Within the conference itself,the xerox machine provided immediate copy with respect to proposedmodifications in official documents.

Two examples from the author's own experience were replicatedmany times. When the United States developed the Polaris-submarinestrategic deterrence system, an essential element was communicationto those whom we wished to deter, and to our own public, of thenature and intent of this system. The distinguished television journal-ist, Edward R. Murrow, prepared a public documentary on the system,which was aired to the general public. The Office of Naval Intelli-gence then prepared a copy of tape, since VCRs were not invented,and delivered this copy to the Soviet naval attache in Washington, D.C.

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Assurances were later received fhaf senior Soviet o f ficials had bcarckthe tape, including then "Premier Nikita Khrushchev." Knowledgeobtained from this documentary was clearly evident when Khnashchevmade a speech to the Supreme Soviet explaining his decisioa withregard to the Cuban missile crisis.

The second is more personal, and less global, but relates to Proble~of the Law of the Sea Institute when, in 1977, it decided to imP«menta computer generated program of interactive professional correspoNdence. This was not possible without the use of a mainfrajn+experimental computer, which had been built for the military by ~Advanced Research Projects Agency. Just five years later. thisexpensive and now obsolete system was replaced by low-cost, fiwt-generation personal computers that were in fact assembled bYmembers of the staff. Currently, the Institute produces itl owncamera-ready copies of its publications, including computer genera~graphics. Texts of the several authors are received on a wide varietYof electronic media, which are transformed by a number of conversioaprograms that accommodate the wide variety of hardware aalusoftware that exist on a worldwide basis. This very lecture has beejsprepared on a portable laptop, has been printed utilizing machines ofthe Institut fur Internationales Recht an der Universitat Kiel, has beeNtransmitted in its various phases to the Institute by BITNET, by M<Imail, and on 3.5" discs via international airmail. It will have bee>transformed and edited on a number of widely divergent machines atthe Institute before its final appearance in the publication of WeTokyo Proceedings.

Thus, it is that the current state of the art is characterixedlimit by the personal laptop computer equipped with a mode~ ~with access to national and global electronic mai! and electror6cbulletin board services. Included in this repertoire are "Fax" car~which permit the generation and receipt of Fax transmissions fearproceeding on PC printers. This capability will permit any individualto communicate on a global asynchronous and instantaneous basis byvoice mail, electronic mail, and facsimile. Costs are similarly low withFax communication on an international basis, being in the neighbor-hood of $S.00 per page. Electronic mail systems are now as low ILstwenty-five cents for a three-page message.

Complementing the individual communication capability is the wi~range of information resources available to the individuaL CubicTekvision has opened a spectrum of stations from a few to thirty ormore. More dramatic is the growth of the VCR, which makes hrlelibraries available on a rental or purchase basis. The content and valueof the information now available may be questionable, but the advent

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of the private and institutional TV recorder makes possible theproduction of audiovisual material with the ease of production ofholographic text.

There is, of course, a large difference in the various nationalcapabilities in this regard. The first Fax machines did not appear inthe Soviet Union until last year. Very few of the systems perform asadvertised and most of all, there is a very large institutional and publiccultural lag in the application of these systems. The Law of the SeaInstitute, as one small private international institute which attempts tohave an effect on ocean policy, is acutely aware of these differences.Participation in the activities of the Institute is highly dependent oncountry access to the various ~cans of communication. We now findthat Fax is increasingly the fastest growing and most ubiquitousinternational communication system, that electronic mail systems arethe lowest cost and most effective means for communication of textthat can be edited and will appear in publication. For example, theInstitute is developing highly effective communications with yourinstitutes through a university electronic mail network known asBITNET. With these capabilities I have been in continuous communi-cation with my staff and with other members of the Institute in suchwidely separated locations as Korea, Japan, the U.K,, and that mostremote location of human civilization, the Islands of Hawaii.

New and even more powerful means of communication and networkformation are on the horizon. The highly effective satellite system israpidly being replaced by a global network of oceanic fibre opticcable. These have an information transmission capability which isseveral orders greater than that of the satellite and which providevirtually noise free transmission. The VCR will soon be replaced bythe Compact Disc, which will be readable by both the television screenand the personal computer. Each disc can contain volumes of materialaqua! to that of the Encyclopedia Britannica and which can be copiedby individuals with their own low cost recorder. In the limit, thesetnachines will provide to world society the equivalent of a cerebralcortex and central nervous system whereby each individual maycommunicate to some global neural network his or her individualpleasure or pain.

It is against this dramatic change in the organization of worldsociety that one must examine the changes in the formation of UnitedStates ocean policy and international ocean policy.

The initial result of the UNCLOS process was that it was protractedand slow, and from the standpoint of the United States, non-respon-sive to concessions. Impatient over the progress of negotiations, theCongress unilaterally intervened by the passage of the Magnuson Act,

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which established a 200-mile Fisheries Conservation Zone, and tb+Deep Seabed Hard Minerals Resource Act, which sought to establishan independent reciprocal states regime for the deep seabed. There:was very little coordination between the Congress and the elaborateExecutive structure for the conduct of negotiations with respect to .eMagnuson legislation. As a consequence the United States positivewith respect to the character of the 200-mile KEZ was greatlYweakened. With respect to the Deep Seabed Hard Minerals ResourceAct, the United States was perceived to be hostile to the CommonHeritage regime and to the Treaty itself.

The ~jor role in communicating between the Congr~ md theExecutive was to be carried out by the National Advisory Comm~~on the Oceans and Atmosphere. This body was legislatively req»r~to report to both the Congress and the Executive. Members of thbody served for staggered terms of three years each. Such appomt-ments are made in an attempt to depoliticize the members»P-Unfortunately, when President Gerald Ford, a Republican, ~serving out his term following the election of President Jimmy Carter.he chose to exert his prerogative and name the class of the succeedingyear, For this reason President Carter dissolved the Committee aaluappointed an entirely new set of members. The Committee wasthereby politicized and despite earnest efforts on its part, its recom-rnendations were largely disregarded. In 1974, for example, theDirector of the National Science Foundation requested the NACGA toreview the International Decade of Ocean Exploration and makerecommendations as to its future. In February l977, the Director ofthe National Science Foundation ignored the NACOA and made ~identical request to the National Academy of Sciences and .+National Academy of Engineering. In carrying out this study, theAcademies employed the Ocean Science Board, the Ocean Poli~Committee of the Academy of Sciences, and the Marine Board of th8Academy of Engineering. In l981, following the election of Roaal<Reagan to the Presidency, the NACOA was once again dissolved andreestablished with appointees of the new administration. A number afthese appointees were at philosophical odds with the concept of aNACOA and shortly thereafter, on their recommendation, it ~permanently dissolved.

The Reagan Administration ushered in a dramatic new change inthe formation and execution of United States ocean policy. Hea»IYinfluenced by the philosophy of Social Darwinism, the Reag~Administration instituted a program of deregulation on the part of thefederal government and a deliberate effort to dismantle much of theadvisory and policy making machinery of government. Administratiaa

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support for the National Academy of Science Ocean Policy Committeewas greatly curtailed. Partly as a result of this curtailment, and partlyas result of a policy decision by the Academy of Science's Board, itsrole was shortly thereafter relegated to a subcommittee which haslargely ceased to function. The focus of the Marine Board of theAcademy was similarly modified to take emphasis away fromengineering technologies of significance to national commerce andtrade and to concentrate on engineering as applied to ocean science.

One must contrast the decisions of the United States academies inthis regard with those of the Soviet Union. Recognizing that theacademy structure of the Soviet Union is vastly different from that ofthe United States, and in particular, includes social science andpolitical science disciplines in its repertoire, it should be noted thatsince the advent of perestroika and glasnos no major Soviet policydecision has been made without the close advice and participation ofmembers of the Academy or its institutes. This marks a clear reversalof trends, which harkens back to the post-war years in the UnitedStates when participation by Academy members in major UnitedStates policy decisions, and in particular, ocean policy decisions, wasthe norm.

Policy analysis and policy decision were concentrated in theNational Security Council as part of the Executive Office of the WhiteHouse, The policy determination on the part of the Nixon Administra-tion that government efforts with respect to the ocean should befocussed on science and on defense was reinforced to a high degree.The belief that resource development and commerce and trade couldbest thrive in an atmosphere devoid of government interaction was acardinal rule of the administration. The primary oceanic priority inthe National Security Council was the preservation of the "oil pipeline"in the Strategic Lanes of Ocean Communication. This resulted in de-velopment and deployment of the navy, one role of which was to as-sure passage of oil through the straits of Hormuz, across the IndianOcean, through the straits of Malacca, past the Philippines, across thePacific through the Panama Canal, and through the Caribbean. Thispolicy focussed on the securing of rights for bases in the Philippinesand in Diego Garcia, supporting a stable regime in Panama, militaryaid to Kuwait and Saudi Arabia, and the nullification of potentialthreats to this pipeline from Iran, Grenada, and Nicaragua. lt alsoincluded a policy of demonstration of the right of innocent passage bywarships through territorial seas of the Soviet Union, and a challengeto the baseline declaration in the Gulf of Sidra.

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~ith respect to the Law of the Sea, the Reagan Administrate+:kly requested the UN to place a hold on further LOS negotiate~.l a comprehensive review of United States policy with respect tolaw of the sea could be made. This review was diligently carri~by the Interagency Committee but had only minimal participationthe Advisory Group which, despite its legislative mandate. ~:ctively dissolved.x view of the sharp disagreements with administration policy ~te engendered, the author must emphasize that this descnption isle in a objective manner, without pejorative connotation, and i'!gnition of the fact that the actions taken by the administratione fully in accord with a coherent and announced philosophy. It ~his spirit that the governmental agencies made a dedicated andtiled review of the Treaty. It was concluded from this review that,e parts of the Treaty were not only acceptable but desirable fry~standpoint of United States ocean policy. The major and priamrYk of non-acceptability was found with respect to Part XI, the Area-,' United States at this time clearly and coherently articuhLted sNcerns in this regard. After its return to the negotiating proces. themary movement in the Conference negotiations was with respect ~~ part of the text. Ambassador Tommy Koh, who was thea Useaeral Chairman of the Conference, succeeded in revising the textneet the objections raised by the United States. This conclusion wasched by Mr. Leigh Ratiner, the principal negotiator for the Unitedtes with respect to this portion of the Treaty. Accordingly. heommended that the United States be a signatory to the Treaty. Thisommendation was not acceptable to the White House, and theegation was instructed to call for a vote on the Treaty and &nify United States intent to reject the Treaty. The vote failed by a

large margin and the Treaty was concluded and prepared fornature. As is well known, provision was made for non-signatoriesparticipate as observers at the Preparatory Commission meetings. A:ision was tnade by the administration that the United States mouldt so participate. This decision was fully consonant with the oceselicy decision that commercial enterprise should not be conducte4 iadhole or in part by governmental entities. The staffing of the Statepartment with respect to the LOS was similarly reduced.Shortly thereafter, the Reagan Dechration on the EEZ wa3 issued.!ploying his executive foreign policy powers, President Reagan:lared on 10 March I983 that the UNCLOS Treaty would be ~tedthe United States as customary international law, except for Peart 3G5 with reservations with respect to pelagic fish. There are, ofarse, many interpretations of the significance of this declaration.

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From the standpoint of the author, the primary significance lies in theimpotence of hierarchy in the face of consensus. Until the ReaganDeclaration there was almost no body of 0pinio jwns that would haveconstrued the UNCLOS III as the embodiment of customary interna-tional Law. Certainly the 200-mile KEZ was ski generis and lackingof international acceptance for that period of time which wouldqualify its regime as customary. In a new dimension and in a newcentury, the Reagan Declaration was an affirmation of the impotenceof hierarchical decisions in the face of organized coasensus. In orderto further parochial national aims -- in this instance the assertion ofsovereignty over mineral resources in a 200-mile extension of coastalstate jurisdiction -- it was necessary for the sovereign to adopt theconsensus solution.

In this regard, it is interesting to note the subsequent actions of theUnited States with respect to jurisdiction over a particular species ofpelagic fish, tuna. In this case, the reaction of South Pacific nations tothe actions of the United States tuna fleet in asserting rights forexploitation of the resource resulted in an increase in Soviet influencein the Pacific. This ran counter to the interests of national security,and in accordance with ocean policy priorities of the Reagan Admin-istration, the interests of the tuna fleet were subordinated. Agreementwas reached, from the standpoint of the United States, on the basis ofArticle 64 of UNCLOS III. From the perspective of the South PacificForum nations, the agreement was de facto based on Article 64.Subsequent developments with respect to dolphin protection groupshave shifted the United States tuna industry from the exploitation ofstocks that are fished with purse seine to the exploitation of stocksthat are retrieved by long line. These stocks are found predominantlyin the United States EEZ. Accordingly, legislation in the Congress isnow proceeding which will bring the United States in full accord withthe provisions of the EKZ.

At this point I would summarize the United States position withrespect to ocean policy at the transfer from the Reagan administrationto the Bush administration. On the basis of laissez faire resourceexploitation, and on the presumption of a form of Social Darwinism,the hierarchical structure for the generation of ocean policy had beendismantled. The national security residual that dominated ocean policyin the 1980s has failed in part, or at the least requires dramaticrevision, because of the failure of the United States policy withrespect to Iran and Nicaragua, but primarily because of the changedglobal structure of international confrontation. The laissez faire policywith respect to the United States ocean industry has failed in large

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Technology Research PICHTR! has provided the focal point for theestablishment of networks for the advancement of ocean enterprise.The sum of this network includes the support and development of thePacific Congress of Marine Technology, which met last week in thesesame halls, the activities of the United States-Japanese NaturalResources Commission, the support for the Woods Hole sponsoredOcean Enterprise concept. A number of programs such as Sea Grant,which has supported the Law of the Sea Institute for many years, havebeen eliminated from the budget each year and restored as the resultof public and congressional pressure. It is doubtful that any federalprogram at the miniscule level of $30 million per year receives asmuch congressional support. Yet this program represents the base forthe generation of commercial concepts by the university community.

Ocean policy that is reactive to powerful illegal ocean activity Category b policy issues! becomes of increasing concern to oceanpolicy analysts as the technology of networking and individualinformation manipulation continues to advance. Technical and legalsolutions based on classical enforcement doctrines now appearcounterproductive with respect to the enforcement of fisheries regime,the control of illicit and illegal imports of commodities and people,modern forms of piracy, and coastal state privateering.

Hierarchical executive Category c! policy items will always per-force include national security, and because of the informational valueof earth science to national security, we may always expect oceanscience to be a strong component of hierarchical attention. The ano-malous position of the Merchant Marine is a national conundrum. Itis clear that the Jones Act and the subsidy policies of the MaritimeAdministration have protected a small and diminishing nationalindustry. This industry is clearly dying, and unless and until there isa national recognition of the importance of an independent marinetransportation capability as a component of a productive econotny, thiswill remain an industry without a constituency.

Thus, in a more conventional perspective, we may derive the majorelements of national ocean policy as follows:

a! The highest ocean policy priority of the United States is theprotection and preservation of the marine environment.

b! National security policy with respect to the ocean is underuncertain reevaluation, but the use of the ocean for theresidual of strategic deterrence seems secure.

c! Ocean science will receive continuing support,d! Governmental policy with respect to the interdiction of drugs

is pitted against a powerful, technologically and network-

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to finding solutions that will resolve the 'Greenhouse Effect." It mustbe presumed that discussions will have been initiated in response tothese letters and that the death of Senator Matsunaga will not havediminished the importance of his request or the need for response.

The author is not sanguine, for he recalls all too often the need toremind himself and others of Shakespeare's famous interplay in Henrythe IV. It reads:

Oh I can call spirits from the vasty deep.Wet!, so you can and so can I and so can any other man.But will they come when you do call for them?

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IN SEARCH QF HYDROCARBONS IN THE FRONTIERAREAS OF SOUTHEAST ASIA

John A. KatiliMinistry of Mines and Energy

Jakarta, Indonesia

The tectonic evolution of the Southeast Asian arc complex ~revealed that in the western part of this region the development of th+island arc system had only been slightly affected by the collision ofIndia and Eurasia which took place about 40 million years ago- ~+prevailing structural elements such as trench, accretionary medgefore-arc basin, volcano-magmatic arc and craton have develo~regularly since pre-Tertiary time. The most pro!ific oil basirLs ~located in the Tertiary back-arc basins which have experiencevertical mobilization and wrench/compression along its cu«+~<volcano-plutonic arc. Heat flow is high and hydrocarbon source rock3are mature. Attention is now being focussed on the fore-are basinssituated between the accretionary wedge and volcanic arc such as thebasins off the west coast of Sumatra.

The Sumatran fore-arc basins comprising the W'est-Aceh bass~.West-Sumatra basin, West-Bengkulu basin, and the South-Sunda ba3s>are associated with oblique subduction of an ocean plate beneath ~island arc.

Early exploration efforts in fore-arc basins were concentrated on ashelfal area, Failure to discover hydrocarbon deposits was generaIIyattributed to low thermal gradients poor sealing potential, pearstructural definitions, and the lack of clastic reservoir formation.Moreover, the wildcat wells were drilled at a considerable dis~cefrom the source rocks. Detailed seismic interpretation of the deePe~part of the modern fore-arc basins reveal that in certain parts pe11-apart basins are also present such as the Benkulu basin.

Collision of the Indian block with Southern Asia had apparentlychanged the stress field in Southeast Asia from one of convergence' toone with a major component of wrench movement which cauld beheld responsible for the formation of pull-apart basins in the back-arearea and in the deeper part of the fore-arc region.

The prospectivity of the Bengkulu basin depends mainly on thepremise that the rift-graben defined in the southeastern part of theblack is an inter-arc basin that may be mature for oil generation. TEALSview is reinforced by the fact that wells drilled in the basin exhibited

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oil shows and by geothermal modelling. The play concepts that can beapplied in the Bengkulu basin are based on the existence of syndeposi-tional rift source rocks such as sandstones.

In the cratonic areas such as Thailand and its offshore region,collision of India and Eurasia caused progressive rotation of SoutheastAsia resulting in an increasingly oblique plate convergence whichenabled movements along parallel major wrench faults causing theformation of pull-apart basins.

The rift basins are called intra-montane basins on land, whileoffshore they have been defined as intra-cratonic basins. Rift basinshave high hydrocarbon potentials owing to their often semi-restricteddepositional environment and the presence of reservoirs as part of thehorst and graben structures, as well as overlying draped sediments.

In the eastern part of Southeast Asia, the regular development of adouble island arc system was severely interrupted by the collision ofthe northward advancing Australian continent with the Banda arccombined with the westward thrust of the Pacific Plate in the direc-tion of the Asian continent. The resulting complicated processes didnot produce a simple geologic setting such as in the western part ofSoutheast Asia since back-arc basins did not come into existence.

Within the loop-shaped Banda arc, the structural elements aretrench, accretionary wedge, fore-arc basin, and volcano-plutonic arc.The modern fore-arc basins around the Banda arc have developed inan early stage of arc-continent collision, i.e., collision between theAustralian continent and the Banda island arc system, while the olderfore-arc basins of Sulawesi were formed in a mature stage ofcontinent-arc collision.

Oil and gas occurrence is known to be present in the younger fore-arcs such as Timor, Ceram, and the older fore-arc comprising theeastern arm of Sulawesi and Buton. The oil and gas occurrence nearthe accretionary wedge is attributed to the fact that the Australian.Continental crust and its overlying Mesozoic platform sediments havebeen subducted below the fore-arc regions, although minor amountshave also been incorporated into the imbricated wedge. If the platformor marginal sag basins are rich in organic material, underthrusting andcompression combined with burial depth might increase the maturityof the organic material. If the trench-slope basin deposits and otherclastic sediments can function as good reservoir rocks, then it appearsthat accumulation of hydrocarbons must be considered possible. Theexploration play of the oil deposits in Ceram and eastern Sulawesiapparently follow the pattern described above.

At the present time, the great water depth of the fore-are basins ~the eastern part of Southeast Asia constitutes the main constraint fordetailed exploration.

Other raain target areas are the intra-cratonic basins of the ArafutaShelf, the marginal rift basins in the Arafura Shelf skirting the Band~arc, the Timor gap, the collision zones of Timor, Ceram, Hallnahera,aad East Sulawesi and the thrustbelt of New Guinea.

COMMENTARY

Geoffrey HollandDirector General

Physical and Chemical Sciences DirectorateDepartment of Fisheries and Oceans

Government of Canada

The theme of this session is "Reevaluation of the Functions of theSea Based on New Knowledge of the Sea," a theme that is a littleobtuse and probably explains why the various speeches that you haveheard are varied and why I have the opportunity to interpret myselfand give some of my own commentaries later on. As for the threepresentations we' ve heard, they' ve all been given by experts in theirfield, and I feel that my own comments on these presentations may besuperfluous.

I'd like to thank John Craven for opening the black box on U.S,policy and giving us some insight into the workings beneath thesurface. I felt that his speech stressed the importance of ocean policyin the general world situation and the need for coherence in thedevelopment of those policies. He also demonstrated, using the U.S. asan example, the loss of effectiveness of advisory bodies when theybecome politicized, or even when the executive policy precedes theadvice that they give. He also referred to the impact of informationtechnology on the way in which world policy is and can be formulat-ed, and I think this is important.

Professor Nasu stressed the importance of ocean science to worldscience in general, and Professor Katili showed how the application ofthat ocean knowledge can be applied in the economic development ofocean resources.

So now I'm going to interpret the theme of the session in my ownway. I'm going to accept the challenge thrown out by our co-chairmanTadao Kuribayashi in his opening address -- that is, to open Pandora' sbox and to examine the issues of the law of the sea from various view-points. My own field is ocean science, so I have a slightly differentperspective from most of the legal experts here, In his openingremarks, co-chairman Ed Miles, counseled us, however, to focus oninternational cooperation and the need to find solutions in the spiritof the Law of the Sea Convention. Having attended the Caracasmeeting and listened first-hand to the debate and effort that went intothe development of the text there, I am not surprised that the fina!articles are comprehensive and are capable of application to most

40l

future situations that can be envisaged. Situations change, however.and legal regimes must be capable of accepting such changes.

I categorize future issues into four groups, not necessarily un«la~~that would enable me to look at the near, medium, and far term ~+first category and the one which I consider needs the most urgeNIattention is the environment. In this category, I would include bo~poHution and living resources. The second category in the mediumlterm, ten to thirty years, would cover technological advances; and thethird and fourth categories, the use of ocean space and climatic'changes respectively, are in the more distant future -- say, twenty'-five to fifty years.

So, first, the environment. The marine environment, like tb+atmosphere, is a truly global commons. Although geographical a ~may be delineated that are under the jurisdiction of this or that coastsLIstate, the ocean waters intermingle freely, and the health of thosewaters is vital to the health of our planet, In this I would agree wi~Dr. Imnadze that the oceans form a common heritage of mankind. ~that the definition must include the obligation on all states to pro~and preserve this common heritage and the resources it contains-

This view may represent one of the most important new conceptssince the law of the sea negotiations. It represents a change because «tthe time of the law of the sea negotiations, the common heritage wmconsidered in the light of an equitab!e sharing of the profits arisissSfrom the exploitation of ocean resources.

Today the awareness of anthropological pressures on our enviro>-ment and the concept of sustainable development have replaced eco-nomic considerations in terms of importance. The implications of thischange for the law of the sea is, r'n<er alia, to increase the urgency efproducing global agreements to conform with articles in Fart XII ofthe Convention. Under Article 194, measures are cited which coverpollution from all sources � land-based, atmospheric, dumping pr~c-tices, vessels, pollution from installations in the ocean area. Of these'measures a global agreement already exists that deals with pollutiossfrom vessels, namely the IMO MARFOL Convention, which satisfiesthe actions specified in Article 211 I! calling for states to act throo84competent international organizations or general diplomatic confer-ences to establish international rules and standards. Similarly, the Lon-don Dumping Convention covers the obligations specified in Article210 �! for international cooperation in the regulation of durmpingpractices. When the UNCLOS is ratified or before, if states wish to actin the spirit of the Convention, it could be expected that other inter-national agreements will be reached covering land-based and atrno-

spheric pollution and the pollution from ocean installations andactivities as specified in other articles; 207, 208, 209, 212. In thisregard, the present discussions leading to the Second World Confer-ence on Climate later this year and the preparatory meetings beingheld for the 1992 Conference on Environment and Development willprovide their own impetus to intergovernmental action.

At the Twelfth Consultative Meeting of the contracting parties tothe London Dumping Convention LDC} in 1989, the meeting decidedto establish a steering group to examine the future role of theconvention. Included in the terms of reference of this steering groupwas the direction to review the possible expansion of that conventionto areas other than sea disposal. These areas included, inter a ia, Iand-based sources of pollution and pollution from ocean installations,Although the work of this steering group is still ongoing, I personallybelieve that it would be unlikely that the LDC could be expanded toinclude an agreement on land-based sources. The relative sizes of theproblem -- from disposal, less than l0 percent of the pollutionproblem, and land-based sources, which form the majority -- woulddictate that a comprehensive agreement on marine pollution might bedeveloped for land-based sources, which might include as an integralpart the London Dumping Convention covering the dumping practicesfrom vessels, It is not so illogical to consider that the pollution fromsea installations may be covered by extension to the LDC articles, TheLDC has adopted changes in the past. It adopted regulations onincineration at sea, a form of waste disposal that hadn't been envis-aged when the Convention was first drafted. The contracting partiesdecided that incineration at sea did form a waste disposal dumpingpractice and accepted that incineration at sea would be covered.Another example of adapting to change is when we were discussingthe possibility of disposing high-level radioactive waste or otherhazardous wastes into the seabed. Contracting parties decided that,although the present articles did not cover such disposal, the LondonDumping Convention would be an appropriate intergovernmentalorganization to deal with such matters if they became acceptable in thefuture and that at that time the Convention should be expanded.

One recurring theme in present-day discussions is the need to havemore data and information about all aspects of the marine environ-ment and its resources. This is an issue that may require legal and/orpolitical action. Many articles of the UNCLOS text refer to the needfor the states to collect and exchange data, but their implementationwill require governmental action. In the oceans most data are collectedas the result of research projects or as part of the knowledge required

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considered by the UN inter-secretariat committee on science programsrelated to the oceans.

Technology brings me naturally into my third category, the use ofocean space. We all know that oceans cover nearly three-quarters ofthe world's surface and that the world population is gro~ing at aworrisome rate -- worrisome to me, anyway. I put it to you that theintervention of human habitat into ocean space is only a matter oftime. This expansion may be through the extension of coastal commu-nities, through land fill, dikes, artificial islands, or by floatinghabitats.

Whatever its form, it will bring with it a host of legal problemsconcerning the delineation of boundaries, rights, and conflicts. Evenmore intriguing is the possibility of creating man-made communities,largely self-sufficient, established in favorable locations in the oceanwhere energy is in plentiful supply, communities that would be largeenough to alleviate some of the problems of landless refugees that arepresently encamped around the world, without much hope of findingrefuge. In fact, it is less difficult for me to envisage the technologyneeded to create sea-based communities of 100,000 persons or more,larger than many sovereign island states, than it is for me to imaginethe legal framework under which they would be populated and regu-lated, The UNCLQS text is quite clear about the status of artificialislands. but certainly islands such as I described were not contemplatedwhen the articles were written.

My final category is climate change. General scientific opinion nowaccepts that the increase of carbon dioxide in the world atmospheredue to man's activities will lead to global warming. One of the conse-quences of global warming is a rise in sea level. Estimates vary, butthe range is likely to be on the order of a half to one meter over thenext fifty to sixty years. The present law of the sea text does notrecognize physical changes in the geography of coastal and islandstates. What will happen if a coastal state loses twenty miles to the sea?Does its economic zone follow the high water mark inland, or wouldthe state retain jurisdiction over previous sea areas? Would inundatedisland states have the right to become artificial islands and retain theirterritorial rights? Problems could also be foreseen between or amongstadjacent states as changes in coastline played mockery with carefullynegotiated boundaries. Global warming will also affect fisheries.Stocks will migrate and the compositions of stocks are likely to changeas ~ater temperature changes. Stocks traditionally managed by onecountry migrate to another, creating the need for new agreements.

ln conclusion, I have taken liberties with Pandora's box and corn-menced with some of the real environmental legal problems that were

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on the top and delved into some of the more fanciful issues that werebeneath the surface. It is clear, however, that changes must beexpected. The important conclusion is not that we must understandexactly how those changes will take place, but that our law of the seaframework must be capable of accepting change. Change is not theexception; it is the norm. In order to survive, a structure must becapable of absorbing and withstanding change. A rigid structure wiIIfail. The world needs a universaHy accepted and operable conventi<n-Imperfections can be accepted if the will to operate exists. Such aconvention is needed to provide a framework for action and to protectthe marine environment and its resources, For the most part. thepresent text provides such a framework, The most contentious articlesare the ones that are the most detailed and least flexible. T hope thatexperts such as yourselves, experts in marine law, will be able to fmdways to prevent these few stumbling blocks from providing permanentobstacles to a universally accepted global convention for the law of thesea.

COMMENTARY

Jaswinder Singh MandSenior Scientific Officer

Department of Ocean DevelopmentIndia

First of all, I would like to use this opportunity to thank theorganizers of this conference for providing me this opportunity toparticipate in the deliberations and to express my views. To betruthful, when I was asked to comment on Reevaluation of thefunctions of the sea based on new knowledge of the sea," I felt a littlenervous as I found it difficult to choose a concrete topic within thissubject on which I could present my considered views within thestipulated time.

At the very beginning, I would like to mention that the viewsexpressed by me are entirely my personal views and in no case shouldthey be taken as the views of the government of India.

The scientific paper presented during the sixth session by Dr. JohnKatili was largely devoted to geological and geophysical sciences andhence falls out of the domain of my limited knowledge in the field. Iwould like to point out, however, that it is absolutely necessary for allof us to go into the scientific materials such as presented here in orderto understand and identify the gaps and their consequent plugging,specifically in the field of the law of the sea. Dr. John Craven's paperon the evaluation of ocean policy in the U.S. is a well researched paperand very useful, particularly for participants like me, who in someway or another, are involved in formulation and evaluation of oceanpolicy for their respective countries. To be sincere, my comments willbe restricted to a kind of thinking aloud on some of the points coveredin Dr. Craven's paper and a few others.

It has been pointed out in Dr. Craven's paper that the highest oceanpolicy priority of the U.S. today is the protection and preservation ofthe marine environment. In fact, this is the number one item on theagenda of the world environmental community today. Public aware-ness should be organized to compel all the States to list this as theforemost ocean policy priority.

Allow me a few reflections on President Reagan's declaration of l0March 1983 that the UNCLOS �982! would be treated by the U.S. ascustomary law except for Part XI, and with reservations with respect

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to pelagic fish. This declaration was an indication of the fact that theU.S., though a non-signatory to the Convention, accepted a largechunk of the Convention as customary international law. SimilarI3r.some other countries may find some other small part of the Conven-tion not acceptable. But the fact remains that there is a consensus ofalmost all the States that a major part of the Convention has corn+ tobe accepted as customary international law. Some authors have coissedthe term 'instant customary law' with respect to the provisions of tbeUNCLOS l982!, as this particular case does not fulfill the conditionof the period of time generally considered to be required for theformation of a custom in international law, If would not be out ofplace to point out here that in the North Sea Continental Shelf Case l 969! the International Court of Justice did not consider the conditionof period of time a bar to the formation of a new rule of custom~international law.

[A]n indispensable requirement would be that within the period inquestion, short though it might be, state practice, including that ofstates whose interests are specially affected, should have been bothextensive and virtually uniform in the sense of the provision in-voked.

Hence, I am a supporter of the opinion that the Provisions of theUNCLOS, with some exceptions, have attained the status of customILryinternational law and are therefore binding for all the States, whethersignatory or not.

There are authors who would like to declare the whole of theConvention, including Part XI, as customary international Iaw. In ~Yopinion, as a result of the express denial of Part XI by some of theSites, the state practice with respect to the provisions of this Part hasnot been uniform; that is why this Part does not fulfill the requiredconditions of a custom, vis. the practice of States, as well as the opiaiojuris. Hence, in the given conditions, in order to facilitate theuniversal acceptance of the Convention, the easier course of actionwould be to set aside Part XI of the Convention, ratifying the rest tomake it a written law binding on all States.

Setting aside Part XI should, however, in no way mean that <heStates will be free to carry out any kind of activities in the deeP sea-bed without any restrictions. In fact, it would mean the freezing of aIIthe activities, except, perhaps, scientific investigations in the ~-Meanwhile, the time gained should be used for deliberations on ascer-taining the impact of human activities on the deep seabed environ-

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ment. Perhaps the interests of the world community as a whole will bebest served in preserving the deep seabed as it is, rather than exploringand exploiting its resources. In that case, a new comprehensive con-vention on the environmental protection of the deep seabed area willhave to be negotiated, If, however, at any stage the world communitydeems it necessary to go for exploration and exploitation of the area,Part XI of UNCLOS should be reopened and negotiated separately inorder to accommodate the opinions of all the interested parties.

It will be worth mentioning here that a more or less similar kind ofapproach is being proposed with respect to the mineral resourceactivities in Antarctica. On 2 June 1988, the Convention on theRegulations of Antarctic Mineral Resource Activities CRAMRA! wasadopted by thirty-two countries in Wellington, New Zealand andopened for official signing. The Convention was negotiated over aboutsix years and adopted by consensus. Some countries, however, at theinitiative of Australia and France, have refused to sign the Conventionunder pressure from the environmental community. As per theprovisions of the Convention, it cannot enter into force if even oneclaimant country which Australia and France both are! does not ratifythe Convention. Hence, the chances are that this convention will notcome into force and the moratorium on mineral resource activities willcontinue until a new comprehensive convention on environmentalprotection in Antarctica is negotiated. A special Antarctic TreatyConsultative Meeting is going to be held, presumably towards the endof this year, to deliberate these issues.

Some authors, including Professor R.P. Anand, maintain that theprovisions of Part XI of the Convention have binding force, as thebasis of the arrangement made under this part is the principle of thecommon heritage of mankind which, according to them, has come tobe recognized as customary law. I would beg to disagree with thisviewpoint. We may recall Professor Anatoly Kalodkin's remarks madeon the floor yesterday that we should differentiate the concept of"global commons" from the principle of common heritage of mankind,'Global commons" are those areas which have come to be accepted asbelonging to the whole warM community. The principle of thecommon heritage of mankind specifically or concretely regulates theactivities in the "global commons." Hence, common heritage ofmankind in case of one "global common" will differ from commonheritage of mankind in another "global common." For example,Antarctica is a "global common." But it cannot be called the commonheritage of mankind. Though there is a move to declare Antarctica ascommon heritage of mankind, yet none of the participants of theAntarctic Treaty of 1959 agrees to call it so. Similarly, the deep seabed

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area has been accepted by the world community as a "global cornjno+,bu't there is no consensus on applying the regime of the corn~Iheritage of mankind to this area. Thereby, the principle of 444common heritage of mankind does not fulfill the criteria of sainternational legal custom.

In closing, I would like to add a few words on India's ocean po4cY-At the time of the creation of the Department of Ocean Developmentin 1981. an ocean policy statement was adopted by the government 0<India. This statement identifies the areas in which the activities re@~to exploration and exploitation of marine resources, marine envirOa-mental protection, antarctic research, and manpower development w~be carried out by the Department of Ocean Development as 8 R~agency. It was also mentioned therein that in order to take India to ~forefront of international efforts, a speedy ocean development wo~also mean close cooperation with developed and developing coun'~in a spirit of understanding that the oceans are a common heritage ofmankind. This again, from the viewpoint of an international lawyer,is a controversial issue which I shall leave for some other time to d~with. Thank you.

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DISCUSSION

Noriyuki Ham We are open for discussion and comment. Dr. Katili?

Ieha Katilr'. I would like to reinforce Dr. Holland's statement that theproblem of exploration of ocean resources is now shifting into theproblem of global environment. The legal community should be awarethat the ocean is actually a very large chemical laboratory. New crustsare continuously being produced in the rnid-ocean ridges at a rate ofabout one cubic kilometer a year. Cold water is reacting with the newcrusts in a natural process that has been going on for years and years.Another natural process is the emission of submarine volcanic gasesconsisting of chloride sulphur and carbon monoxide and so on.

Imposed on these changes are now the so-called anthropogenicchanges caused by man, such as dumping, as has been mentioned byDr. Holland. But in addition, the oceans absorb the carbon dioxidethat is being dumped into the atmosphere. Scientists are still puzzledabout where 25 percent of this carbon dioxide goes. Some scientistsbelieve that it can be found in the biownass in the northern latitudes,Phosphorus, nitrogen, and sulphur are also being used in such aquantity that they are causing anthropogenic changes, disturbing thebalance in the natural flux of these materials. We know the problemof the ozone hole in the atmosphere, which for scientists is a bigsurprise. I do not know whether we shall also encounter big surprisesin the ocean.

I think besides economic research the legal aspects of these thingsshould also be taken seriously into consideration.

Noviycki Narc Dr. Katili mentioned the name of Dr. C.Y. Li, and Ibelieve Dr. Li is here. Any comments

C.Y. Lr. I have been refraining from participation in discussion duringthe last four days, as I am not a legal man. Since today's session ismore on technical subjects, however, and as Dr. Noriyuki Nasu,chairman of the session, and Dr. John Katili, one of the mainspeakers, have recognized me, I venture to say a few words, more forthe reference of Dr, John Craven in his planning the agenda for futureconferences.

First, we devoted the whole morning session yesterday to a discus-sion on deep sea mining, As you are all aware, it has been generallyrecognized that early excitement oa the subject was based on

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insufficient information and that commercial production will be <quarter of a century away. Environmental aspects arising from deeP-sea mining were not taken into account. I am aware that discussions oNdeep-sea mining cannot be avoided in future meetings. I only wis+that we would spend less time on the subject.

Second, during the last four days, only two speakers I'«fessorMochtar and Dr. Katili! touched on oil and gas, which are not o+ theagenda, and there were no discussions. Why? It is true that mo st of N~offshore oil and gas deposits are found in the 200-mile economic zoae.but there are oil and gas deposits beyond this zone. More than ~4there are many overlapping claim because of the oil deposits. I do feeIthat the exploration and exploitation of oil and gas deposits under Wesea and problems arising from overlapping claims should forNs ~separate agenda in the next conference.

My third suggestion arises from Dr. Holland's remarks. GIobSIwarming has drawn the attention of the international community. Wecannot stop or prevent global warming, but certainly we can try toslow it down. Global warming causes the rise of the sea level aad &oshifting of the EEZ. These are legitimate concerns to a conference likethis one. Dr. Katili has mentioned carbon dioxide; now we realize thatthe ocean does not absorb as much carbon dioxide as we used to think.and that is also very serious.

Miranda }Vceker. I am with the Council on Ocean Law in Washington>.D.C., and I wanted to make a few comments on contemporary oceanpolicy in the United States. I think the U.S. federal government issuffering an identity crisis now which may have implications for itsability to serve in a leadership capacity in the future vis-a-vis theworld community. The federal government is in retreat on a numberof fronts, Reduction in military tensions is one of the reasons behI>da reduction in federal preeminence in the setting of U.S. oceanspolicy. Another problem is our budget deficit.

I think these will have consequences for the treaty, as the fed'~government wiII be less of a leader in safeguarding and solidifying theprogress made in the Convention. One illustration of that is the recentrejection of the i984 IMO protocols on liability and compensation, ofwhich this meeting should take notice. It is a signal in the U.S. of thegrowing emergence and preeminence of the individual state's cIout iaU.S. ocean policy making. I have heard rumors that should lead toeven greater concern. On the question of double bottoms, coxLstructiDssstandards for vessels entering U.S. ports, the State of California maybe in the process of considering the institution its own individual

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construction standards. That is, they may require double bottomsear!ier than federal law. The recent discussions in the U.S. Congresswith regard to oil spill legislation have aot been limited to affirmingindividual state's rights to regulate liability and compensation. Theyalso concern manning and design and construction standards, This isaa ominous development within the U.S., and I would like to hear anycomments Professor Craven might have ia response to the question. Doyou see aay factors oa the horizoa that might put the brakes on themomentum within the U.S. for a growing individual state control overU.S. oceaa policy'

Joke Cravem I'm very pleased that you asked that question. I do notsee that the ability on the part of the federal government to put thebrakes an coastal state unilateral action is any greater than the abilityof the Soviet Union to put the brakes on the unilateral action of itscoastal states.

Indeed, we are going to see around the world -- and that was reallythe point of my lecture, and that point was well made by Dr, Holland� the development of regional changes and modifications in the lawof "sea use" which will be responsive to political pressure from coastalzone people. This development moves toward a flexible law, but it alsomoves away from a generalized and universal law. The comments ofmy colleague here were right on the point if we have a treaty that isto be useful, it is a treaty that must be flexible. It must be flexiblebecause, as the other speakers have pointed out, science and technol-ogy tell us that the uses of the sea -- with respect to amelioratingglobal pollution, with respect to the political use of the sea as relatedto ocean space -- are changing very dramatically, Dr. Holland's timescale of fifty years is a very short period of time. If we are going tonegotiate treaties that are immutable, they must be flexible. PresidentReagan declared that nearly all of the treaty is customary law. A moreproper statement would have been to declare that all but Part XI ofthe treaty in its very words is now consensus law. The United Statesno longer takes the position with respect to pelagic fish that it did atthe time of that declaration. It acknowledges now that consensus lawwith respect to pelagic fish is found in Articles 59, 60, and 6l of thetreaty and in those very words of the treaty.

Honyuki Nam One more question.

Benuxrd Applebaum I am with the Department of Fisheries andOceans in the federal government of Canada. I direct a comment to

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Professor Craven. In his paper he describes the major elements of V~ocean policy, and I was surprised not to see freedom of navigation aathe list. I didn't think that " b! national security policy" really coveredfreedom of navigation. I was recently involved in a meeting aboutcurrent developments, I noted that when doing something forceful toprotect the marine environment would have interfered with freodowof navigation, there wasn't any question at all from the United States'point of view.

Joke Crmac I meant to imply that the second priority item in «xenonpolicy contained within it the freedom of navigation. The federalpolicy with respect to freedom of navigation, which was very firmabefore recent political events, has now become very confused. I amsure it wi!l be reoriented and brought together, and indeed I have jestcome from a very exciting conference that Dr. Dalchoong Kits heIdin Korea to examine the international security problems of theoutbreak of peace. The outbreak of peace requires that the nationalsecurity implications of the dif ferent strategic lanes of communicationbe redefined. While I am certain that U.S. policy is going to becontinuously firm with respect to freedom of navigation, the nuances~ going to undergo a very radical revision.

Notkyukf Nant As the chairman I would like to express my gratihadeto Dr. Craven, Dr. Katili, Dr. Holland, and Dr. Mand. Just one porn~on earth we have 5,300,000,000 people. This population is distribute«Iall over the world at a density of l4.7 people per sq. km of the mmm-For the future the relation between mankind and the ocean wiII bedeeper and deeper, and so will you please keep this number in miad-Thank you very much,

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LUNCHEON SPEECH

LUNCHEON SPEECH

Anatoly KolodkinSoviet Maritime Law Association

Moscow

I am not going to speak again about the Soviet approach to Part XIbecause it was reflected yesterday by my Soviet colleagues. I do appre-ciate the concern expressed by speakers from some other countriesrelating to a very important question -- ecological security associatedwith seabed activity. This point was stressed by the head of the Sovietdelegation, Dr. Y. Yakovlov, at the hst session of the PrepCom.

My task today, as was requested by the Board of the Law of the SeaInstitute, is to expose the main trends and changes in our legislationregarding ocean affairs.

My colleagues and I, speaking in a personal capacity, believe thatthe !982 UN Convention on the Law of the Sea is a comprehensivemultilateral treaty that is on the whole, except for Part Xl,consistent with the interests of all nations and states. including theUSSR. The USSR, having signed the Convention, is following thegenerally recognized principle of international law, as it is stipulatedin the 1969 Vienna Convention on the Law of Treaties, Article 18. Incompliance with this Article, a state that has signed a treaty, but hasnot yet ratified it, is obliged to refrain from acts that would defeat theobject and purpose of a treaty. The USSR is doing everything inaccordance with Article 310 of the Law of the Sea LOS! Convention,which provides for the harmonization of the laws and regulations ofstates with the provisions of this Convention. Following these provi-sions, the USSR acts now along the line of the concept and principleof "rule of law."

The most important modification of our legislation has been donein light of the Baker-Shevardnadze Agreement at Jackson Hole inSeptember of 1989. In accordance with this agreement concerning thesingle, unified interpretation of innocent passage through foreignterritorial waters, we modified provisions of our legislation. Thehistory of that issue is the following.

In our Law of the State Boundary, 24 November 1982, we recog-nized for the first time in the history of our state, since 1917, the rightof foreign warships to innocent passage through Soviet territorial seas.The statutes on the State Boundary 1923, 1927, 1960 did not recognizethis right.

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constitute customary international law, For example, there is noagreement that important navigation and overflight rights, such astransit passage and archipelagic sea lanes passage, are universallyrecognized as being under customary international law, Moreover,once the treaty enters into force, and if the U.S. is not a party to it, itbecomes even more vulnerable to arguments that only states partiesmay take advantage of rights not accepted as customary internationallaw.

I also associate myself with my American colleagues, with theirSynopsis that the Convention's provisions on dispute settlement are notconsidered customary international !aw but represent contractual obli-gations accepted through formal agreements. Among the provisionsconcerning settlement of disputes is Article 292's reference to Article226, which relates to prompt release of a vessel detained by anotherstate. If the detaining state has not complied with the provisionsconcerning prompt release of the vessel or its crew, the question maybe submitted to any court or tribunal agreed upon by the parties or,failing such agreement, within ten days from the time of detention. Inaccordance with Article 292�!, upon the posting of bond or otherfinancial security, the authorities of the detaining state shall complypromptly with a decision concerning the release.

It is, therefore, unlikely that most nations who are parties to theConvention will allow the U.S., the USSR, the U.K., and the FRG toavail themselves of these provisions if they do not adhere to theConvention.

lt must also be noted, for example, that Indonesia had asserted thatit is free to decide whether it will grant the right of transit passagethrough straits to nonparties. Considering the Convention as a veryimportant instrument in maintaining legal order in the oceans, theUSSR expresses its concern with regard to violations of the provisionsof the Convention by a number of states that signed and even ratifiedit.

On 17 August 1989, Oman af firmed that passage of vessels carryingnuclear or hazardous substances through its territorial sea requiresprior authorization. Iran, bordering on the Strait of Hormuz at theentrance to the Persian/Arabian Gulf, has taken the position thattransit passage through international straits is not customary interna-tional law. In 198$, Haiti notified the UN that entry into its territorialwaters and EEZ is strictly prohibited to any vessel transporting wastes,residues, or any other materials likely to endanger the health of thecountry's population and to pollute the marine environment. In 1989,Indonesia denied that international straits occur within archipelagicwaters and claimed therefore that the passage of Sunda Strait between

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Sumatra and Java is not an international strait. Indonesian governs+<officials aho claimed that the rights of archipelagic sea lanes passaS<are not identical to the right of transit passage through internationaIstraits.

What we are going to do in order to guard and retain the legal orle<provided for by the Conventions

I wonder if the U.S. freedom of navigation program, which since1979 has provided for the uses of U.S. warships and aircraft to reassertrights -- is within contemporary international law'. I believe tha< ~e'have to react, but within the limits of international law.

1 propose to consider such means as monitoring with regard tocompliance with the Convention.

My impression is that, in light of the Murmansk speech by M~.Mikhail Gorbachev in 1987, it would be useful to say a couple o<words concerning legal issues of the Arctic.

l. As you know, we declared in 1926 that all lands and isles'located in the Arctic Ocean are a territory of the USSR. But the arcticsea areas adjacent to the USSR are covered by the generally acceptedegal classifications: the internal sea waters, the territorial sea, EEZ.

and continentaI shelf.2. But sea areas, including straits, have never been used as interna-

tional straits and international sea routes for international navigatien-As my distinguished colleague, Professor Donat Pharand from Canada,noted in April 1988 at the Annual Meeting of the American Society efInternational Law in Washington, D.C. where I also presented mY'paper concerning the Arctic!, the Soviet Northern Sea Route did notknow Manhattarr in 1965 and Polar Sea in 1985 as it was known byCanadians. That is why, he said, the USSR was right when it estab-lished in 1985 straight baselines and Canada followed suit the sameyear.

The establishment of straight baselines means that all sea areaswithin these lines are internal waters and innocent passage is m>trecognized there. The provisions of Article 8�! of the 1982 Conven-tion as well as of Article 5 of the 1958 Geneva Convention territorysea! do not work. As you know, Article 8�! of the 1982 Conventionreads as follows:

Where the establishment of a straight baseline...has the effect ofenclosing as internal waters areas which had not previously beenconsidered as such, a right of innocent passage as provided in thisConvention shall exist in those waters.

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But this provision does not work in that case because our northernstraits are areas which were never used for innocent passage.

3. As Mr, Gorbachev noted, depending on the further improvementof international relations, the VSSR might open the Northern SeaRoute "for foreign vessels with an escort of Soviet icebreakers."

What are we going to do now? We intend I! to explore thepossibility of removiag straight baselines. I am noting only: to explorethe possibility, �! at the same time to streagthen control aad monitor-ing, taking into account Article 234 of the Convention and the rightsof our "Administration of the Northern Sea Route," which wasestablished in 1971 within the Miaistry of Merchant Marine of theUSSR; �! to elaborate and establish special rules for navigation in thatunique region, bearing in mind the necessity of preserving the marineenvironment and ensuring the safety of navigation and life at sea.

In this connection I would like to emphasize our legislation withregard to the Arctic region.

The Edict of the Presidium of the Supreme Soviet of the USSR of28 February 1984 "On the Economic Zone of the USSR" included theright of the competent Soviet authorities to exercise appropriatecontrol actions, to file suit and detain vessels violating this Soviet le-gislation or applicable international rules. On 26 November 1984, theEdict on Strengthening the Protection of Nature in the Areas of theFar North and the Sea Areas Adjoining the Northern Coasts of theUSSR stipulated that navigational vessels and other floating facilitieswithin the sea reserves and other specially protected territories mayoperate only via the sea lanes established by the competent Sovietauthorities, the appropriate information being provided according toan established procedure.

It seems quite reasonable to extend further the cooperation betweenthe arctic states in the field of the peaceful use of the ocean andresources, which means to draw up and conclude jointly; first, a treatyor convention between the arctic states concerning the cooperativeprotection of the arctic environmeat, preservation of its ecologicalbalance, and the protection of its flora aad fauna. I would like toremind you of the Treaty on Protection of Polar Bears of 1973 signedby Canada, Denmark, Norway, the U.S., and the USSR. This Treatymay serve as a good example.

Second, in my opinion, bilateral and other agreements betweeaCaaada, Denmark, Norway, the U.S., and the USSR on the marineenvironment and protection pertaining to the following regions couldbe elaborated and concluded: the Barents Sea region, the Bering Searegion, aad the like.

421

Third, regional as well as bilateral agreements on scientific researclsof the Arctic could be concluded. Very useful bilateral agreemeatmwere concluded by the USSR and Canada in 1989 relating to thedevelopment of cooperation in various fields, including interaatioaaI}aw of the sea.

The USSR is a party to all existing universal special agreemeIst3concerning marine environment: the International Convention for thoPrevention of Pollution from Ships 1973, as amended by prot@co>1978; the London Convention on the Prevention of Marine Pollutioaby Dumping 1972; the International Convention relating to Interven-tion on the High Seas 1969 and Protocol 1973 thereto; the InternatioaaIConvention on Civil Liability for Oil Pollution Damage 1969; and W+international Convention on the Establishment of an InternationalFund for Compensation for Oil Pollution Damage 1971. With the'participation of the USSR, some new agreements in this sphere havebeen elaborated.' the Basel Convention on the Control of Traas-boundary Movements of Hazardous Wastes; the Protocols 1984 to theCivil Liability Convention 1969, and the Fund Convention 1971.

The USSR signed the Convention on the Protection of the MarineEnvironment of the Baltic Sea Area in 1974, which provided for theprevention of pollution from different sources. The USSR is examia-ing the possibility of joining the Barcelona Convention for theProtection of the Mediterranean Sea against Pollution 1976. We havePrepared a draft convention for the Slack Sea. We hope that theconvention will be adopted in the nearest future.

In 1984, the Soviet government established a special organ -- theGovernmental Marine Special Service within the Ministry of Mer-chant Marine!; it is entitled to combat oil spills resulting from csss-ualties at sea. In 1989, the USSR and the U.S. concluded and broeghtinto effect the Agreement Concerning Cooperation in Combating Pol-lution in the Bering and Chuckchi Seas in Emergency Situations. TheUSSR signed a similar agreement with Finland in 1989; the conclusionof a similar agreement on the Barents Sea with Norway is aibaunderway,

In its practices, the USSR pays special attention to the implemeata-tion of the principle of peaceful uses of the seas embodied in theConvention. This fact is confirmed by the speeches of the Sovietleaders. Widely known are the initiatives advanced by M.S. Gorba&aevin Vladivostok, Murmansk, Delhi, Belgrade, and by N.I. Ryzhkov, andby E.A. Shevardnadze. These initiatives provide for an array ofmeasures aimed at consolidating global peme on the seas and in certainareas. They include limitation and complete renunciation of the navaIarms race, the reduction of naval activities, the withdrawal of nuclear-

422

armed ships from a number of regions, the establishment of confi-dence-building measures with prior notification of naval exercises, therenunciation of conducting such exercises in the areas of intensiveinternational navigation, and the declaration of certain regions aszones of peace.

Constructive components of the maintenance of peace, seeking thee!imination of possible conflicts between states, are agreements on theprevention of incidents with warships on the high seas, which theUSSR concluded with Canada, France, F.R.G., Great Britain, Italy,and the U.S.; similar agreements with Greece, Spain, and Turkey arein the process of being drafted. At the XV "Pacem in Maribus"Conference in 1987, the Soviet Maritime Law Association supportedthe proposal of Sweden concerning the conclusion of such an agree-ment on a multilateral basis. This proposal also gained support at thefirst International Seminar on Naval Arms Limitation held in Moscowthis February and at the XVIII "Pacem in Maribus" Conference inMoscow.

All these measures, as well as the Soviet initiative to establish UNNaval Forces, are aimed, to a considerable extent, at the implementa-tion of the provisions of Articles 3Gl, 88, and 141 of the 1982 UNConvention on the Law of the Sea, at making these provisions gener-ally recognized principles and rules of contemporary international law.

In conclusion, I would like to express my deepest appreciation to myfriends Professor Edward Miles and Dr. John Craven for the invitationto take part in this convocation. I also express many thanks to thePresident of the Japan Ocean Association, Mr. Kazuo Maeda, for hiskind invitation to come to Japan.

I hope that I shall express the common feeling of all the participantsin emphasizing the fact that the success of the 24th Conference wasprovided by the activity of staff members of the Directorate of theLaw of the Sea Institute and of the Secretariat of the Japan OceanAssociation. And it is a great pleasure to express my high appreciationfor the hospitality, friendship, and assistance that I received fromProfessor Tadao Kuribayashi. Thank you.

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SESSION Vll:

INTERNATIONAL COOPERATIONIN THK ASIA-PACIFIC REGION

PICHTRA MODEL FOR INTERNATIONAL COOPERATION

IN TECHNOLOGY DEVELOPMENT AND TRANSFER

RonaM J. Hays'President and CEO

Patrick K. TakahashiVice-President

Development Pacific International Centerfor High Technology Research

Two years ago I was in my last few months as Commander-in-Chiefof the Pacific with a primary mission to preserve peace throughstrength. Today, "peace" remains my main goal, but now, as presidentof the Pacific International Center for High Technology Research-or PICHTR -- through universal international cooperation. To say thatthe world has changed during this period would be a gross understate-ment. We are today riding a wave of goodwill that can carry PlanetEarth into a prosperous and safe twenty-first century, but only if wework together. The sea around us could well be the means to thispromising end.

I come before you today with hope tinged by sadness. We all grievethe passing away of U.S. Senator Spark Matsunaga on Easter Sundaythis past spring. Senator Matsunaga was instrumental in laying thefoundation for peace and cooperation, an important seed being thePacific International Center for High Technology Research. I wouldlike to present a brief history of PICHTR, focusing on our oceanicmandate as the bridge to stimulate cooperation between East and West.

In an international free market economy regulated by fair trade andtariff agreements, the establishment of cooperative mechanisms in thedevelopment of ocean technology poses special challenges. Healthycompetition drives in the direction of competing proprietary solutionsto technical problems. In the limit, this approach leads to a delay inthe realization of the technology and a denial of the technology to lessdeveloped nations with marginal or subsidized economies. Healthy co-operation drives in the direction of free and open transfer of technol-

Chloe paper waa delivered d'or Admiral Hayl and Dr. Tahahaahi by Dt. AndtomTxenha.

427

ogy. In the limit, this leads to cartelization and the stifling of innova-tion.

An almost obvious solution to this problem is in the creation of ahybrid system in which competitive and cooperative developnMnts oftechnology are integrated towards a mutually satisfactory goal. Onesuch attempt is the "Enterprise" of the Deep Seabed Regime of the UNI-aw of the Sea Treaty UNCLO$ III!. Unfortunately, there appear tobe philosophical differences with respect to mutuality.

Another example is PICHTR, a concept developed as the result ofdiscussions among Senator Matsunaga, Senator Daniel Inouye, theaPresident Ronald Reagan, and then Prime Minister Yasuhiro Naka-sone. In the memorable Tokyo Economic Summit of 1986, the firstdiscussed item between Reagan and Nakasone was cooperationbetween Japan and the U.S. on ocean resources, and PICHTR masspecifically identified as the organization to carry on this importantmission.

During this period, beginning in October l982 when Senator Matsu-naga proposed to the Japan- America Society the notion of working to-gether on joint high technology projects for developing countries, andextending through several home-and-home workshops between repre-sentatives from Japan and the U.S., it became increasingly clear th3tthe ocean had the potential to serve as the basis for cooperation.Defense sensitivities and the suspicions of industry made computerand information technologies difficult to negotiate. Biotechnoiogy ~not a consideration because of similar reasons and the fact that Hawaiidid not have much to contribute.

Hawaii, however, was located in the middle of the Pacific, and bythe combined virtues of mixed East-West cultures, favorable environ-ment an attractive exclusive economic zone EKZ! surrounded theState!, and geography Honolulu was closer to Tokyo than Washington.D.C.!. was ideally situated to take the leading international role iaEEZ resource application programs.

Strategic materia!s carried some interest, but the end project ~not an appealing one. Neither was marine storage of nuclear or toxicwastes.

Integrated OTEC, that is, electricity and a virtual cornucopian hstof co-products -- aquaculture, marine biopharmaceuticals, freshwater,temperature control -- made particular sense. For one, this technologywas in the perfect stage of international cooperation, and the benefitwould be to the thousands of islands scattered throughout the warldrequiring a stimulus for development. Fledgling economies coukf bebootstrapped to become self-sufficient with just one packagedtechnology.

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Thus, negotiations began for a major cooperative program onOTEC. The Japanese Ministry of Foreign Affairs, or MOFA, has pro-vided $1 million each year for four years now, and PICHTR has un-dertaken a wide-ranging series of activities to prepare this option forapplication in the South Pacific. A resource assessment and marketsurvey reported that virtually every developing Pacific island nationhas the physical potential to develop OTEC. We have been officiallycontacted by several of them and have initiated a total system programto deliver this new technology.

There are three interrelated parts to the PICHTR program: econom-ic development, education/training, and technology transfer. Theeffort would fail if any one element were missing. Let me explain.

Throughout the South Pacific are rusting relics of technology--diesel engines, windmills, and other assorted items. A technology willfail if the people of the community do not accept nor understand it.The appropriateness of a technology, however, is not necessarily thefault of the hard ware. Education is an important foundation that needsto be established several years before the introduction of equipment.The success of a new technology correlates with capable local main-tenance. Education paves the way for technology transfer. PICHTRhas helped various Pacific island entities design and implement edu-cation programs related to science. ocean resources, and computer ap-plications. These pioneering projects will pave the way to successfultechnology transfer.

Too many of the Pacific island economies are subsidized. With thedefense security issue now a secondary consideration, there is growinginterest in stimulating economic interdependence, The first few OTECpackages will be funded by Japan, the U.S., France, the EuropeanCommunity, Taiwan, and the United Nations. The next generation ofinstallations will become reality, however, only if conventionalfinancing can be secured or commodities can be traded to the equalbenefit of the providing nation. Complementing trade is the industrialadvantage of providing expertise and equipment.

One of PICHTR's more interesting tasks is the formation of privatesector teams to bring new technologies to a developing nation. In anycase, economic development is a driving force to engender theintroduction of new technology, both for the receiving developing!nation and the supplying developed! country.

Accordingly, PICHTR has organized into technology developmentdivisions Energy and Resources, Information Technology, andBiotechnology! and an Education and Training Division. As there isa decidedly nautical theme to this gathering, however, let us describeour ocean resource development and educational programs.

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While multi-product of QTEC is PICHTR's dominar.t project, the~eare spin-off activities that merit attention for future applications:

l. Can upwelled water in the open ocean create new fisher4. toexpand protein productions

2, Can this system, then, sequester carbon dioxide to r~tnedia~global warming'

Cooperative projects are being discussed with South Korea,Japan, and Taiwan with regard to seabed crust technology.A project on autonomous underwater vehicles has beeninitiated with France.The Pacific Region Education on Marine and IndigenousEnergy Resources program has been initiated featuring haads-on training and executive management instruction ie all faceBof energy and ocean resources, particularly to take advantageof natural field laboratories in geothermal, wind po~er,energy storage, ocean resources, and solar power Iocated osthe Big Island and Maui.The Pacific Area Cooperation in Renewable Energy Develop-ment has begun with the University of Hawaii aad Ha~iDepartment of Business and Economic Development, featuringtechnology transfer in alternative energy and marine resources,as an initial step to an Integrated Electric Utilities Pros~with the U.S. Department of Energy.The Pacific bland Region Tuna Assessment and Developmentproject is being ironed out.

2.

3.

4.

5.

Finally, in OTEC itself:

l. Experiments are proceeding, funded by the U.S. Departmentof Energy to build a 16S kilowatt open cycle powerphat atKeahole Point in Hawaii in 1992, and discussions are continu-

430

PICHTR is working with the University of Hawaii, the East-3V"tCenter, and several national laboratories in the formation of interdi3-ciplinary and international teams to address these opporturaities. TheNational Science Foundation has expressed interest in providingsupport of cooperative programs with the Japan Marine Science andTechnology Center JAMSTEC! and the Ministry of InternationalTrade and Industry.

In other marine area:.

ing for an ALCAN-Hawaii closed cycle QTEC test bed ofsimilar size for operation next year.The joint project with Japan continues into our fourth year,PICHTR prepared a strategic plan for a $72 million, 5 mega-watt closed cycle, multi-product OTEC facility for Taiwan,which we hope will become operational in five years.We are discussing with OTKCA of Japan the prospects ofcooperative projects in the South Pacific.Andrew Trenka, director of our Energy and ResourcesDivision, serves as the corresponding editor of the Americansin the newly established International OTEC Association.A U.S, OTEC Industry Council is being formed throughPICHTR leadership in cooperation with other solar industries,to be headquartered in Washington, D.C.

2.

3.

4,

6.

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We can project that not long after the turn of the century a billiondollars of OTEC hardware will be sited in several Pacific andCaribbean locations. Plans will be in an advanced stage of implemen-tation for the extraction of strategic minerals from the Pacific seabed.A contentious seabed storage of nuclear wastes referendum will be aninternational issue. A multi-national, open ocean, pre-commercial,marine biomass and fishery facility will be producing kelp forconversion into methanol on floating platforms and protein for theworld.

Since PICHTR's establishment in 1983, the vision of Senator SparkMatsunaga to stimulate peace through international cooperation inocean resource technology has come a long way indeed. PKHTRshould be managing projects totalling more than $10 million in valueby next year in cooperation with several Pacific island communities,and involving individuals and organizations from Japan, Taiwan,France, South Korea, and the U.S.

The spirit of cooperation continues, as U.S. Senator Daniel Inouyehas written to Governor John Waihee of Hawaii of a desire to establishthe Spark Matsunaga Hydrogen Center and U.S. Senator Daniel Akakais discussing the prospects of converting the Seacoast Test Facility atthe Natural Energy Laboratory of Hawaii into a national laboratory tobe caBed the Spark Matsunaga Ocean Resource Laboratory. It wouldnot surprise us if both centers of excellence become an integrated in-ternational laboratory, as PICHTR is already in the midst of complet-ing a report on OTKC hydrogen; and what better living monumentthan to have a thriving research, development, and technology transferstation dedicated to food, energy, and ideas for the world.

INTERNATIONAL COOPERATION IN SALMON FISHERIESAND A COMPARATIVE LAW PERSPECTIVE ON THE

SALMON AND OCEAN RANCHING INDVSTRY

Francisco Orrego Vicuiiainstitute of international Studies

University of ChileSantiago, Chile

Salmon fisheries have for long been the source of bitter disputesamong States and other interests involved, but have also resulted inschemes of international cooperation which have had a close relation-ship to the state of international law on the matter. As a resv>t,important developments in the law of the sea have taken place in thisarea. In addition, the growing salmon and ocean ranching industryboth in the northern and southern hemispheres has raised a number ofimportant legal issues, Some of these issues are related to internationallaw in general, while others are mostly connected to domestic fisherieslegislation and policy.

This article purports to examine both the development of the law' ofthe sea in relation to salmon fisheries and the perspectives of a com-parative law approach to the question of salmon exploitation. oceanranching, and related matters.

The evolving Law of the Sea: from the priaciple of ahstentio> to theJurisdiction Of the State of origin

Three characteristics of anadromous species are at the very heart ofthe evolution that the law of the sea has experienced in this domain; a! dependence on fresh water and the large costs required to keepsuch areas free from obstacles and in appropriate ecological condition,a cost that has to be met by governments or private operators; b!mixing of stocks originating in different countries while in the highseas and the ensuing difficulty in applying appropriate measures ofconservation and rnanagernent until the species approach the coast ontheir return for spawning; c! the highest yield in the fisheries carl beobtained only when the salmon is about to re-enter fresh water due tofactors associated with rates of growth and natural mortality.'

U.S., Doc. A./AC.158/SC.ll/L.so, ln Rrpon 0f the seabed Committee, 1173, Vol. HI.

432

The first approach adopted in the international Iaw of the sea on thequestion of salmon high seas fisheries, and the disputes that wereassociated with Japanese activities in the North Pacific, was based onthe principle of abstention.' This was the predominant feature of theNorth Pacific treaties relating to salmon and other fisheries during theperiod following the war, which will be examined further below. Inlight of the characteristics explained above, however, this was thewrong principle. In point of fact such a principle operated bydefinition in the high seas, where conservation and management ofsalmon cannot, however, be effectively introduced. As a consequencethe depletion of stocks continued. It should be noted, though, that atthe time this was the only principle compatible with the view on thelaw of the sea upheld by major fishing nations. Nevertheless, itsapplication prompted a vigorous adverse reaction from Japanesescholars.'

The I9S2 Lax of the Sea Convention: ae innovative approachA major breakthrough in the approach guiding the law of the sea

came with the "species approach" introduced during the preparatoryworks and negotiations leading to the 1982 Law of the Sea Convention.This approach was based on the recognition that different speciesneeded different legal treatments, prominent among which was thecase of anadromous species.

A Canadian document of 1974 had suggested the following threenew principles in regard to salmon: a! only coastal States in areasunder their jurisdiction should fish anadromous species; b! conserva-tion of salmon requires an integral management throughout the migra-tory cycle, a matter in which the State of origin has a special interest;and c! the coastal State fishing such species in areas under its juris-diction should consult with the State of origin.' Through such an ap-

Colin K. Harri ~, 'Recent changes in the pattern of catch of North Americaneahnonide by the Japanese High Seas salmon fieheriea,' in william J. McNeil ed.!,~ PNduCQOlt, Manageme~ and AIIocatioa, Oregon State University PreaI, 1988, 41-BS, at 4S.

Shigeru Oda, huenmlio~ Conned of Sea hoor.er, 1962, Second edition, 1989, 29, 6S-

Roderick Haig-Brown, SaLmoe, Canadian Fiaheriee and Marine Servicee, 1&74, p. T9.

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proach, the state of the law was for the first time beginning to bealigned with the underlying scientific and technical realities.'

Various draft articles introduced during the negotiations undertookthe task of refining this approach by providing further necessary!<details, to wit

a! A draft article on fisheries by the USSR,' recognizing the rightof coastal States to reserve on a yearly basis the percentage of !al-lowable catch of anadromous species that its vessels can take in thohigh seas;

b! A working document by Canada,' indicating that anadmn!opsspecies should not be fished in the high seas and that coastal States ofOrigin have a preferential right over their exploitation;

c! A revised draft article on fisheries by the U,S.,' advocating thatStates of origin shaH have authority to regulate this resource through-out its migratory range and shaH have a preferential right for itsexploitation;

d! A working document by Australia and New Zealand,' referriaatO the high costs involved fOr the State pf Origin and to the exCIusiveright to manage anadromous species originating in its waters;

e! PrOpoSah On high Seas fiSherieS by Japan,' whiCh was the Onlycountry to oppose coastal State conservation or preferential rights inthis connection, highlighting instead consultations, agreements, or theparticipation of international fisheries organizations. Ln a later dnfthow'ever, Japan recognized that the pertinent agreements shoold takeintO aCCOunt the special intereStS of StateS in whOSe waterS spa~ning

For an emtplanation of the need for epecisd treatment of eaimon, eae Canada ~.A/COHt.80/C.S/L.8!, Is Augwt lQN, in UNCLOs ~ial Records, Vol. III, 10T5. 8oeaaeo the drawl articie on 5eheriee by Canada, India, Kenya, and Sri LanIta, Dac-A/AC.!88/SC.II/L.S8, Articte !l, in Report cit�srqrnt note !, !QTS, VoL M.

USSR, Doc. A/AC,!s8/sc.ll/L.S, Report of tjtc scaled corneaimcc, 1Qvs.

7Canada, Doc. A/AC.188/SC.H/L.8, in Report ci, war note 6.

United Statee, Doc. A/AC.!$8/SC,II/L.Q, in Report cit aqua note I

+AnetraMa and New Kealand, Doc. A/AC.!$8/SC.II/L., in Report cd carer ~ +-

Japan, Doc. A/AC.!$8/SCAN/L.!S, in Report cit, srqee note B.

434

takes place." This last approach was similarly followed by Den-arl . ll f! Draft articles on the economic zone by Bulgaria, Poland,

Byelorussia, Ukraine and the USSR,~ assigning sovereign rightsover salmon in the economic zone and "preferential rights" beyondsuch zone, while emphasizing at the same time that the access to theresource should benefit those States contributing to the renovation ofthe species and to the costs and expenditures involved.

g! A draft article on anadromous species by Ireland," referring tothe expenditure of large amounts by the State and industry and theensuing policy that only States of origin should fish salmon in theirjurisdictional waters, or those of other States with their agreement.

h! Draft articles on the Economic Zone by the U.S�" proposingthat salmon fisheries beyond the territorial sea should be prohibitedexcept as authorized by the State of origin.

i! Sixth revision of the articles on the exclusive economic zone EEZ! prepared by the Group of Juridical Experts," whose Article13 provided for the State of origin to assume principal interest andresponsibility for salmon, forbade the fishing of anadromous speciesOutSide the EEZ, allOwed the regulatiOn Of fiShing tO relnain in theState of origin both within and outside the EKZ, and established otherprinciples that reflected the trend emerging from the above mentionedproposals. Additional precisions were introduced during the SeventhSession of the Conference in 1978, particularly with regard to the role

Japan, Doc.A/CONF.62/c 2/L.46, 5 August 1974, UNcLOS official Recounts, vol.HI, 1975.

Denmark, Doc. h/CONF.62/C.2/L.S7, 5 Auguac 1974, UNCLOS Ogden Recon&,Vol. IH, 1076.

Bulgaria, Poland, Byelorussia, Ukraine, and USSR, Doc. A/CONF.62/C.2/L.88, 5Autuat 19T4, UNCLOS Of}Via/ Records, Vol. HI, 1975.

Ireland, Drab Article on anadroruoua epeciea, UNCLOS Ogcial Reweords, Vol. IH,lQT6.

Unl~ed S~aa~, D~.A/CONF.e2/C.2/L.47,9Aug t, 1074,UNCLOSOgk~&co d,Val. HI, 1075.

Group of Juridical Experts: "The Economic Zone," 24 April 1975, in RanatcPlata5der, 7lrid Unir.d P/aiaeS COOfeegg on the Law O/SIse SON. Doaunemss, Vol. 4, 198S,209-226, Article 1$.

435

of the State of origin in "all waters landward of the outer limits of itsexclusive economic zone.""

It is of interest to note that there was a consensus on the specialinterest of the State of origin and its role throughout the migratoryrange of salmon, which meant in fact a general agreement on theseparate legal treatment required by salmon given its biological andeconomic characteristics." No State opposed the concept of develoP-ing separate legal rules for the species. Furthermore, the princiPalStates af origin introduced draft articles that were generally coinci-dent. This would have a very precise influence in the final text of theConvention and in the development of a rule of customary law-

As a result of this innovative process Article 66 of the 1982Convention has recognized the primary interest and responsibility' ofthe State of origin in anadromous stocks, thereby dramatics%'changing the very concept on which the law of the sea had been base~in this matter. While "interest" reflects the economic realities assoc~tedwith the exploitation of salmon, "responsibility" refers to the conserva-tion made appropriate given the biological characteristics of thespecies. Although the concept of "State of origin" might be easilydifferentiated from that of "coastal state," it should be noted tea< i>some peculiar geographical situations, such as a those between the M.S-and Canada in the Pacific, things may be more complicated sincesalmon originates in the rivers of one country and reaches the sea i'the waters of the other."

The geOgraphical scope Of this regime is also quite new, erlcOm-passing with varying 1nOdalities the whOle migratOry ambit of thespecies. On the one hand, for the State of origin, the regime iaclvdes"all waters landward of the outer limits of its exclusive economiczone," thus also covering territorial waters and internal waters. On theother hand, the regime extends into the high seas, thus universalizirLgthe primary interest and responsibility of the State of origin. It follo~sthat regulatory measures adopted by such States in relation toconservation, while mainly applicable landward of their EEZ's outer

John R. Stevenson and Seen~ H. Oxman, 'The Third United Nations Conferenceon the Law of the Sea: the 1975 Geneva aeaaion," America Journal of I~terncuional ~,Vol. 00, 1975, 76S-797, p. 779, nate ss.

See the Report to the P}enary by the Chairman of the Second ComxniCtae,Ambaaeador Andree Agullar, OJPcial Recook, Vo!, X, 1978, para. 1S-

' JOy A. Yanagida, "The Pacific Salmon Treaty, A~an JOunutlOf Jntematienctl ~,Vol. Bl, 1987, 577-592.

436

limits, will also have an effect beyond such limit, subject to someforms of cooperation.

It also follows from the above that the State of origin establishes thetotal allowable catch for salmon � throughout its migratory range--subject again to a process of cooperation and consultation with otherinterested States, A major innovation is that contained in Article 66,paragraph 3 a!, to the effect that as a general rule salmon fisheries'shall be conducted only" in the waters landward of the EEZ outerlimit. This means that fishing for salmon as a general rule is nowprohibited in the high seas, with such exceptioas as justified by theneed to avoid economic dislocation for other States. In such an eventconsultations shall be undertaken with a view to reaching an agree-ment on terms and conditions of such fishing. Subject to agreementwith other States concerned, enforcement of regulations can also beundertaken beyond the KEZ.

The strict conditions embodied in the new regime of anadromousspecies are tempered by the need to avoid the economic dislocationmentioned above, a situation that calls for various measures ofinternational cooperation in accordance with Article 66. Among othercriteria, reference is made to the participation in measures to renewanadromous stocks and expenditures for this purpose, thus providingan explicit link between the right to fish salmon and the participationin the costs involved in the management of this industry,

Another innovative provision is that contained in Article 66, para.4, calling for the cooperation of the coastal State, through the watersin which salmon migrate, with the State of origin for the conservationand management of stocks. A number of bilateral agreements respondto this provision which, while mandating cooperation, preserves theinterest and responsibility of the State of origin to penetrate even thejurisdictional ambit of other States.

During the negotiations leading to the 1982 Convention two extremeopposite points of view were suggested: the view that salmon shouMonly be fished by the State of origin to the exclusion of all others, andthe view that salmon should only be fished in the context of a regimeof international cooperation. As with most other matters dealt withunder the Law of the Sea Convention, the solution adopted steers awayfrom extremes. In point of fact, it recognizes the primary interest andresponsibility of the State of origin, providing at the same time forsome modalities of international cooperation in situations that requirespecial arrangements. In practice, the latter situations are of a rathertransitory nature, since the recognized exceptions based on economicdislocation usually lead to a process of economic adjustment, which isprecisely what has happened in Japan through the diminution of high

437

these changes, the 1952 International Convention was renegotiated in1978 further to restrict the areas of Japanese operations and theseasons for the mothership fishery, After new setbacks due toincreased catches in the Central Bering Sea, a U.S,-Japan agreementwas reached in 1986 in order further to reduce the interception ofNorth American salmon, which also led to an additional amendmentof the trilateral arrangements. Phasing out from the Central Bering Seawill be completed in 1994; additionally, other boundary limits areintroduced,»

A parallel develOpment had been taking place in the COl1text Of theSoviet-Japanese 1956 treaty, which was based oa the very differentapproach of setting quotas, times, areas, and other dimensions withinwhich salmon fisheries are to be regulated. Quotas have been system-atically reduced from 120,000 mt in 1957 to 80,000 mt in 1976.Thereaf'ter, the reduction has ranged from 62,000 mt in 1977 to 24,500mt in 1986." Fees were introduced for high seas salmon fisheriesbeginning in 1978 and gradually increasing thereafter. These variousaspects can be summarized in Table l.~

In 1985, a new agreement was signed between the USSR and Japanon the basis of the law of the sea concepts discussed above.» A 1976Canada-USSR agreement also relies on the law of the sea approach,agreeing "in principle that fishing for anadromous species should notbe conducted in areas beyond the limits of national fisheries jurisdic-tion," and agreeing that measures shall be taken to ensure that the two

JMd., p. 46.

fbid., p. 46. See generally Japan- USSR: Treaty concerning the high aeaa fiaherlea ofthe Nortbeeat Pacific Ocean, 1966.

Joahio Naaaka, "Salmonid programa and public policy in Japan,' in Mcweil, op. citSempre note S, 56-$1, at 26.

~iM., p. s'r.

Kama, Inc. cit�supra note S, at 45.

439

Table 1

Japan's High Seas Salmon Qttotas an4 Fees to the USSR, 197'7-$6Fee to USSR

Year USS NCiBia~Catch mt!Quota mt!

Source: Fisheries Agency of Japan

nations' nationals and vessels shall avoid taking salmon originates iathe other Contracting Party.» The l978 Canada-Japan agreement Iluterelies on law of the sea principles.»

The combined effect of both the trilateral arrangement, as modi-fied, and the Soviet-Japan treaty has been a substantial reduction iahigh seas catches and a change in the composition of such catches.

+Canada-USSR: Agreemant on 5aheri~ relatioaa, Moacow, 19 h4ay 1976, Attlcja IILSimilar agreeeanta have been concluded by Canada with Norway, Poland, Portugal, modSpain. OCher agreetnenta between Canada and the USSR on Naheriae cooperaCLea havebeen altned on 22 January 1971 CanmHa» Treaty Seriaa 1971, No. 9!; exchaaie of normaof 1S February 197S Canadian TreaCy Serlea 197S, NO. 12!; exchange Of notea af %4January lOTS Canadian TreaCy Seriea 1975, No. 22!; exchange of notee of 2% Deceeabet197S Canadian Treaty Seriea 197$, No. 2S!; and exchange of notee of 9 I'ebru~ 1~ Canadian Treaty Sar<ca lOTO, No. 2!.

Canada- Japan: Fiahery agreernenta, 2S April 1978, ArtlCie V i!.

"Sarri, Soc. ~ «qm ~te 2, at el-e2.

440

1977

19781979198019811982

1983198419851986

62.00042.50042.50042.50042.50042.50042.50040.00037.60024.500

62.63941.51742.44742.48042.26742.36842.09835.46434.31820,000

0 $915.016.418.216.117.917.917.721.0

In point of fact, by 1985 the high seas catch of Japan had dropped to34,000 mt, or one third of the catch taken twenty years earlier.~ Butthere is still another consequence of the greatest importance whichmust be noted: the reduction in catches has not resulted in any majoreconomic dislocation since ocean ranching production has dramaticallyincreased. In 1985 the harvest of hatchery chum salmon had reached168,000 mt or eight times the amount of 1965." The first salmonhatchery built in Japan in 1888, and the 195l Aquatic ResourcesConservation Act, which launched the development of the modernhatchery program, proved to be very farsighted measures in Japan."It should also be noted that imports have significantly increased inJapan.~

Other multilateral agreements have also introduced the newapproaches of the law of the sea, The 1977 Agreement between theEuropean Economic Council EEC! and the U.S. provides forconsultations for salmon management in EEC jurisdictional waters ofstocks originating in the United States. The 1982 Convention on theConservation of Salmon in the North Atlantic Ocean prohibits fishingsalmon in the high seas and in most 200-mile areas beyond theterritorial sea in order to protect the interest of the State of origin.

Bilateral treaties related to neighborliness arrangemeatsA number of bilateral treaties have created interesting arrangements

for the management of salmon among neighboring countries. Thefollowing treaties between Canada and the U.S. can be cited asestablishing cooperative regimes for salmon management, namely:

a! Reciprocal fisheries agreement of 24 February 1977" permit-ting fishing by nationals and vessels of one Party in the waters of the

Naeaka, hc. cia., supra note 2B, p. 28.

+Ibid., p. 2B.

+lNd., p. 2B-2T.

lMd., p. 2B.

European Economic Community-United States: Fieheriee Agreement, 15 FebruaryloTT; Iee in general David Attard: 77hz &elusny Scanornic Zant it Ias~xta/Law, lOST,lN-189.

Canada-United Statea: Reciprocal 5eheriea agreement, %'aahington, 24 February19TT, Canadixe duty Seies, LQTT, No. 2s.

441

other, with the exception of salmon in the Pacific Coast which canonly be fished in very specific areas and distances f rom the coast- Bo~hparties also agree to coordinate the regulations for certain s31monfisheries. b! The COnventiOn for the prOtection, preservatiOn and extenSiag5of the sockeye salmon fisheries of the Fraser River system of 26 Nag1930," establishing the International Pacific Salmon FisheriesCommission which is empowered to manage the resource, includinSlimiting and prohibiting the taking of certain species.

c! The exchange of notes of 21 July and 5 August 1944 in ~~context of the 1930 Convention, sharing the cost of introducingremedial measures for overcoming obstructions to the ascent of thesalmon in Hell's Gate Canyon,

d! The Protocol of 28 December l956" relating to the 1930Convention, introducing additional clauses for the management a<salmon by the Commission.

e! The Pacific Salmon Treaty of 28 January l985," dealing withthe COmplex iSSue Of regulating the salmon fishery originating inar1ecountry and spending a part of its life cycle in the waters of the other.Article I, paragraph 1, of this Treaty sets out the basic principles

With respect to stocks subject to this Treaty, each Party shaBCOnduct itS fiSherieS and itS Salmon enhancement prOgraa1 So aS tO- a! prevent overfishing and provide for optimum production; and b! provide for each Party to receive benefits equivalent to the

production of salmon originating in its waters.

An exclusive right for the State of origin could not be recognized iathis complex geographical setting, but by means of the operation ofsuch principles, both parties purport to compensate each other for the

Canada-United States: Convention for the protection, preservation and mctenaiosaof the socteye ashnon flaherlea of the Frsser river system, Washington, 26 May 1.930,Socirtt da Naions~ttcil da moira, 1958, No. 4255.

Canada-United States: Exchange of notes relating to aoclseye salmon 5sheriea isa theFrsser river ayatasn, 21 July snd 5 August 1944, Unitat Naions 7lvaty Senes, 1962 ~ N~. 4M.

Canada-United States: Protocol to the Convention of 26 May 1930, Ottamm, 28December 1956, UIM'trd Nations katy Saria, 1958, No. 4229.

~iCansda-United States: Treaty concerning Pacific ahlsnon and Memorandum nfUnderstanding, '28 January 1985, on which see generally Yenegide, lac; cit�srqru note 19.

442

salmon originating in one which is fished in the waters of the other.The technicalities of how to estimate the fishing is a controversialaspect, which shall be decided upon by the institutional machineryestablished.

These arrangements also evidence the evolution taking place in thefield, from the very simple operation of joint international commis-sions to the highly complex issue of distributing benefits amongneighbors. Such treaties also demonstrate the feasibility of the rules ofcooperation provided for neighboring countries under Article 66 ofthe Law of the Sea Convention. While the Canadian-U.S. situation hasbeen taken as an example of a particularistic regime, many otherbilateral treaties provide for uniquely interesting solutions in the field.This type of cooperation will rapidly expand as ocean ranching isintroduced in the southern hemisphere. Chile, for example, which isalready a large producer of salmon, might face similar issues if thismethod of production is introduced in Southern Argentina and theFalkland Islands,~

National Legislation and Practice: The Comparative Law Perspectiveof the Salmon Industry Domestic Regimes

Genercd legislation re ating e the Exclusive Economic ZoneAn examination of the national legislation relating to the EEZ

reveals that only those States that are actually engaged in salmonproduction and fisheries have enacted special rules on anadromousspecies. Other States have accepted the general rules of Article 66 ofthe Law of the Sea Convention, which were adopted without objectionand in relation to which there were no declarations made at the timeof signature or ratification.

The following types of legislation can be identified in this group: a! Legislation which, while providing jor regulator powers in

relation to species, does not refer speci jically to salmon, Variousnational laws enacted before the l 982 Convention was concluded haveprovided for this type of approach in a general manner. The NewZealand Act on the Territorial Sea and the ZEZ adopted in l977 andamended in l980~ provides, for example, that fishing licenses shall

McNeil ~ op. cit., supra note 2, p. 1X, with reference to proepective prodoction in tbeSouth Atlantic ocean.

New Zealand: Tcrrkotial Sea and &etusiw Economic Acc I%7, Act No. 28 of 26September 1977, ae amended by Act No. 14B of 1980.

443

specify the species which can be exploited and that the Governor-General shall enact measures for the conservation and management offisheries in the EEZ.~ A similar general approach is foLLo~@d byNorwegian Law No. 91 on the EEZ of 17 December l9'76. The 19~>Convention has come to supplement these general rules, including thespecific case of salmon, without the need for explicit amendments innational legislation.

b! L,egislatioe providing jor general rules on anadromous spec'i~~An example of this other type of legislation is found in the case +fJapan and the U.S. In point of fact, Japanese Law No. 31 Of 2 May1977" on provisional measures for the Fisheries Zone, Article 12 ofwhich refers to conservation and management of anadromous sPec>esscontains a jurisdictional claim on salmon originating in the freshwaters of Japan even in the areas of the sea beyond the fisheries zone,without prejudice to forms of cooperation. This cLaim also demon-strates the changing policy that was taking place in this country inrelation to salmon high seas fisheries.~

In the United States, the U.S. Fisheries Conservation and Manage-ment Act of 1976 also provides, in Section l02, for the exclusiveauthority of the U.S. over anadromous species throughout its migrato-ry range beyond the 200 mile area, with the sole exception of theterritorial sea or fisheries zones of other countries, provided thesehave been recognized by the United States.» The Act also calls fornegotiations on international agreements on conservation and manage-

Jbkt., Sechone 15�! c!.

JOE., Section St�! i!.

No~ay: Act No. Pl of 17 Atctmbe'1976 relating to the Exclueive Economic Xone,para. 4 9!.

e~Japan: Law No. 31 of 2 May 1%7 on ~ovmonol measures reAuing m ~ jbhing ~, anamended by La~ No. SS Ot 29 NOvember lQTT, Article 1S.

See supra note 11 and aeeoclated text,

United Statee; Fkthey Coesevotke aed Noeagtmcnt An of 197$, Fublic La» 94-265,1S April lOTO. Section 10$.

444

meat." There was also in evidence here a radical departure fromtraditional principles. Thus, while the U.S. Proclamation on the EEZof 1983" does not refer to anadromous species, it should be under-stood within the context of the rules of Part V of the 1982 Conven-tion, including those on salmon.

An important development associated with the U,S, policy on thismatter has been the arrest and prosecution of Taiwanese and Americannationals for the sale of 500 tons of illegally-caught salmon in the highseas.~ The application of the Lacey Act was invoked in this case,since it makes it an offense to import seafood products caught inviolation of the legislation of other countries. Taiwanese law, in thisregard, prohibits the keeping of salmon caught in the high seas inconnection with driftnet operations. In the incident attended to, notonly had fishing taken place in the high seas but the arrests of theparties involved also took place, in part, in international waters.

c! Legislation 0 j a general kind that provides in greater deiai l forthe case oj salmon. This type of legislation is found in the SovietDecree on the Economic Zone of 28 February 1984~ and supplemen-tary decrees of 1986.~ Such legislation is based on the interest andresponsibility of the State of origin and its entitlement to adoptappropriate regulations on conservation, including the determinationof total allowable catch both within and beyond the economic zoneand the application of penalties for activities taking place in the highseas. These decrees contain no reference to international cooperationon the question of aBowable catch, but such cooperation in envisagedin respect of other aspects such as enforcement of measures beyondthe 200-mile limit.

ibid., Section 202, a! i! 8!. On the United Stataa lagialation aee alao generallyW.T. Surke: "U.8. Fiahery Management and the New La» of Cha Sea,' American Jour»atof la4cnsaafeW Law, Vol. TQ, 1982, 54-66.

+United StaCea: Prockxrnaion SNO by abc PIesidcnt of Ne United Surfer of America, 10March 108S.

Sea Council on Ocean Law, Oeauat Policy Nnvs, Auguat 1089, at 1-4, and March1000, at i.

USSR: Deeper oe the Eccvmrnic Zone of 28 February MM.

On Che 1988 legialatien and oCher elernenta aea Erik Frauctx: 'New Soviet Gaheryregulatlona concerning the EEZ," Manllr Puke, Voh 11, 198T, 126-182.

445

d! General legislation confaining fechnica rules. One other type oflegislation contains some technical rules on salmon while otherwiseretaining its general nature. Such is the case of the Canadian Law ofFisheries of 1970, establishing certain prohibitions concerning thefishing of salmon, type of gear, location, and other rules whichnormally are induded in specialized legislation. This legislation sha!lbe examined further below.

These various models of legislation respond to the same concernsthat inspired the law of the sea negotiations, that is, the need to e»>«the conservation of salmon and to safeguard the economic interest +fthe State of origin. This type of legislation basically organizes therelationship between the State of origin and other interested Statesjust as is done by Article 66 of the 1982 Convention, which empbasi<-es the relationship between national jurisdiction and internationalCOOperation. There is, hO~ever, yet one other question Of the utIIIOstimportance to contemplate; who will exploit this resource, and underwhat CirCumStanCes, at the dOmeStic level of the State of origin'? TbISother dimension is the subject of specialized domestic legislation.

Specialized kgislation and pracfice: principles relaling lo exploilatioeThe models applied to the exploitation of salmon at the domestic

level are influenced by a great variety of factors, prominent amongwhich is the economic system followed by each country, the approachof its fisheries legislation and policy, and whether the resourceincludes natural StOCkS Only Or alsO prOduction frOrn oCean rarIChiIIg-Historically, important salmon fisheries, such as those of Canada,Scotland, Japan, and the USSR, were based on the exploitation ofnatural stOCkS, which were all as a result Subject to dramatic declilIe.This situation led to strong measures of conservation, on the one hand,and to the enhancement of aquaculture and ocean ranching, on theother hand. Production of salmon today is generally based on fisheriesof natural stocks and ocean ranching and on aquaculture, except incountries where no natural stocks occur, such as Chile, which produceonly from ranching fishing and aquaculture. Over 5 billion smolts arereleased annually from hatcheries throughout the world, thus evidenc-ing the rapid expansion of the industry.~

McNeilpp. cu., supra note 2, at EX. See also James E, Lannan: Contemporary trendsin world eamon production end menagement policy, in McNeil, op. cit�supra note 2, 7-12; Nilliam P. Royce: "An interpretation of salmon production trenda," in McNeil, op.cit, aqeu note 2, IS-IS; williem J. McNeil: Salmon ranching: A growing induetry in thaNorth Pacific," Oceanus, Vol. 27, No. I, Spring 1084, 27-sl.

In spite of the variety of factors influencing legislation, there is oneimportant aspect shared by all models: the manner of exploitation ofthe resource is somehow related to the entity making the necessaryinvestments for the development of the industry and the conservationof salmon. These various models are discussed next

a! State investment and State exploitation: the Soviet model. Sovietspecialized legislation has been mostly enacted in relation to theimplementation of the 1984 Decree on the Economic Zone discussedabove. However, because the Soviet economy is built on the principlesof socialism, it is the State that makes the necessary investments forthe development and conservation of the industry, and State enterpris-es will thus also undertake the exploitation at an industrial scale,except where local fishermen or sport fishermen might intervene. Therelationship between investment and exploitation remains at the Statelevel.

b! State investment and private exploitation: the Canadian experi-ence and other aspects. A highly developed and complex model is thatprovided for under the Canadian federal and state laws. After a steepdecline in salmon stocks both the federal and state governmentsdecisively intervened in this industry, particularly by means of theSalmon Enhancement Program began in 1979 in British Columbia.~The basic investment in this costly program is undertaken by thefederal and provincial governments, although some costs are bornedirectly or indirectly by the private industry. The beneficiaries of thisinvestment, however, are the fishing industry, indigenous communi-ties, and sport fisheries. Fishing can only be undertaken by means oflicenses which are subject to strict regulations in order to ensureconservation.~

Originally it was assumed that the government would recover itsinvestment by means of license fees and landing rights, but this didnot work out as envisaged and has been a point of criticism. In fact,this policy amounts to a form of subsidy, although there is a socialreturn in terms of taxes, employment, and other factors.

Peter H. Pearee: Tianing tht id'. A rtcw policy for Canada's Pacific Firhenes, FinalReport ot Lhe Commieeion on Pacific Fieheriee Policy, September 1982, Chapter 6:'Sahnonid Enhancement," iT-82.

Ref., ChapCer 9: Rationaliaing the ealmon and roe-herring fieherieI," 99-118.

«~., 69-6O.

447

authorized prOCeSsing plants.~ All theSe measures are geared to~dSthe conservation of the resource and the profitability of the industry'-

The applicable British law of 1986 is based on a similar approachand license system,~ while making different arrangements formanagement by means of producers' organizations in fishing districts.SuCh diStriCtS inClude the area Of Salmon fishing in riverS and extendthree miles offshore. The model enshrined in recent British legisla-tiOn iS SpeCifiCally dediCated to the need tO ensure private prOpertyOver the reSOurCe in COastal and international waterS, in Order tO allowfor an adequate recovery of costs and return on investments. Anumber of detailed measures to this effect was suggested by theCameron report.~

Chile haS beCOme an impOrtant produCer Of Salmon both inaquaculture and ocean ranching, following the private investmeNt-private exploitation model.~ It is interesting to note that in the caseof ranching thiS aCtivity waS initiated by the Chile Foundation. aprivate nonprofit foundation, which has developed and adapted theteChnOIOgy Suited tO thiS type of prOduCtion. Having demOnStratedsuccess in its results, the Foundation sold one of its hatcheries toprivate operators. Although specialized legislation is scattered in manylaws and regulations, it deals with many of the problems affecting thisindustry, particularly in terms of conservation. Various decrees haverecently prohibited fishing for salmon in areas where the access tohatcheries occurs, thus ensuring the adequate return of the fish- A-

JMd., Section 15 c!.

United Kingdom: Sat'mon Aa 1986, T November 1986.

+ibid,, Section 1 �!.

On Cheee propoeale aee generally L.K. Newton and 1.D. Richardeon: Marine FiehFarming - Some legal problems, in Churchill, Sinunonde, and %'elch: New IX'~~thr Law of the Sco, Vol. Ht, 1978, 81- TO. See aleo Department or Agriculture aad I'ieherieafor Scotland, Jtguloo'on of Scoeish inshgte jhl~a: Rgpgrg of the Scomsh Iashort FishcricsCceanigtet, 1970, Cmnd. 44M,

Francleco Orrego Vicuna: Ranching de aalmon, un entorque juridico: opcionee paraChile,' Aquanoiciat, Vol. 1, No. 8, December 1989, 11-20.

450

recent fisheries law also refers to the particular situation of anadrom-ous species."

In examining these various models it can be noted that to the extentthat the relationship between investment and exploitation is keptwithin a balanced manner the results are satisfactory and conducive toa positive outcome both for the community and the operators. On thecontrary, when the relationship is unbalanced the community will besubsidizing private operators or vice versa, a situation that cannot lastfor Iong. Most of the legislation examined also contains detailedregulations for aquaculture production, as does also the legislation ofNorway~ and France,~ an aspect which is beyond the scope of thiswork.

Thc regime o j salmon in custontary lawFrom what has been discussed in the prior sections it can be seen

that the rules on anadromous species contained in Article 66 of theI982 Convention are well reflected in State practice and legislation,both in terms of multilateral and bilateral treaties and in terms of thegeneral legislation dealing with the EKZ or other aspects of theinternational law of the sea,

On these facts, it can be safely concluded that there is here anorm-creating provision which has developed with a broad andrepresentative participation of the States concerned. In fact, all majorsalmon producers have signed the 1982 Convention, with the exceptionof the U.K. and the U.S., neither of which has any disagreement withArticle 66. It is also interesting to note that the negotiations took placeamong the countries directly concerned and that their results wereaccepted by the Conference without objection, which evidences thespecial role of this group of countries in the development of acustomary rule on this matter. National practice is both extensive anduniform in this group and the time period for the consolidation of therule has been more than enough.

Chile, Law of Fieheriee and Aguacu!ture, No. 18.891, 2S December l989, Ogc'ialleumui, SS December 1989. Article 84 of thia law provides that temporal or specialptohibltiona may be enacted in apeci6c areas for the protection of anadromous orcatadromoua apeciee.

Norway, Aa ¹. 19' chc' buiMng and related uctiviics of jbh and shelifish Aatcheria, 15May 1981.

France, Bene No. N 228 du 22 mcm1QN fuae letrggtmt d'c i'ttutonscuion des eploitationsdr aattutes tttanncr.

451

In view of this situation, it can also be concluded that a ru!e ofcustomary law has developed from Ar ficle 66, with only minor pointsof national legislation remaining ambiguous as to meaning andcompatibility with said Article, a case in point being that of certainpowers beyond the 200-rnile limit prpvided for under Soviet legisla-tion. It should be noted that althpugh the basic concept and elementsof the EKZ have become a part pf customary law, beyond doubt, thishas not been the case with most of its detailed regimes. It follows thatthe regime applicable to salmon would be the first to follow the pa<into customary law forged by the general regime.

Domestic regimes for the exploitation of salmon are not uniformand do not deal in general with aspects of international law; they aretherefore not being included in this process of transformation iatpcustomary law. Some aspects relating to conservation, however, areclosely connected with the international law governing salmon and aIsoevidence an important degree pf uniformity throughout nationallegislation, which could evidence a close relationship between sechlaws and the formation of a customary rule on this specific point. Thisother aspect will be examined next.

CoaIervatloa Measures aaC Reservation of Rights ln Comparative La+

One of the very intricate problems affecting ocean ranching is thatof the legal status of the released salmon.~ Both in common law andcivil law systems there are twp separate and distinct situations: thestatus of domestic animals, including fish and salmon in cages, whichis subject to private property and protection; and the status offree-swimming fish, which is cpmmon property, freely available toanyone undertaking its exploitation under the regulations in force.Ocean ranching, however, is somewhere in between, since the fishinvolved is partly cultivated in cages and hatcheries and partly Ifree-swimming stock which will return to its hatchery. The basicquestion is whether the fish should be subject to private property likea domestic animal, given the investments that have been made in itsproduction, or should it be common property freely available to all?

Some of the models described above have taken this last option. betin such an event the question of whether the State should make thenecessary investment is also posed. A related issue is that the State

Haaapeoa, Jot. dr sempre naco es: Q. Bo~daa: coestol Aguucahug Lair and pohcy: aaalu salty of CeNJbrsfu, lMK; S.H. %Qdamith: Aqsacsluua the kgul pmneverk, L95%;Newtoa and Mcharcboa, Qe. cit, supnr aote Ts.

does not acquire property rights over this resource unless there is anexplicit legal entitlement, which could amount to a form of expropria-tion in given instances. In this sense, the sovereign rights attached tothe concept of the EEZ mean only that exploitation is reserved fornationals of the State vis-a-vis third parties, but does not involve thecreation of a public property over the resources.

Various legal approaches have been discussed in this context,including the classification of salmon in the category of animusrtvertendi or the creation of property rights over the released molt,or even how to balance a licensing system so as to ensure that no singleInterest will dominate the exploitation of the resource, which in factamounts to the accommodation of the diverse interests of producer,contnerciaI Aeets, and sport fisheries.~

ln practice, however, the approach to this question has been ratherdifferent since it has primarily recognized conservation measures andthe necessity of a limited reservation of rights in given areas as ameaas to ensure conservation. Because of the biological and migratorycharacteristics of salmon, conservation necessarily means the adequatereturn of stocks to their hatcheries or points of origin, thus ensuring,both the continued cycle of reproduction and the profitability of theindustry.

CNIservattoe measures its comperutiwe JawAll the legislation examined contains a variety of measures on

conservation in order to prevent overexploitation of salmon, particu-larly in the areas close to the coast where the return to the points oforigin is most common. The most important of these measures are thefoHo wing:

a! hfanagement of salmon during the return period, Canadianlegislation, and occasionally certain bilateral agreements, contains verydetailed regulations for the management of salmon at the stage of itsreturn, including monitoring, closing of fisheries, daily evaluationsand other measures in order to achieve the adequate conservation ofstocks.~ The cost of this policy is borne by the government, Long-

Saxnpoon, lac. ck, ssqru aoce 5s, ai %0-21.

peane, op. cit aqm note M, chapter 4: Fieheriee Maaagemant," 40-4s.

term planning and management of the environment are also a part o<the policy of conservation.~

b! Restrictions on fishing gear. Net fishing is also strictly regulatedin Canada, including places of emplacement, distances and otherfaCtOrS." In areaS Of Over-explOitation, Only fiShing by angling ispermitted." The distinction between coastal waters and distant watefshas been introduced in this connection."

C! Regulation Of SpOrt fiSheries. A number Of lawS aISO StriCtly'regulate sport fisheries in order to prevent over-exploitation. Aparticularly detailed regulation is that in force in British Columbia-

d! Tagging. Canada and New Zealand have introduced differentsystems of tagging the salmon. In the former, a set number of ChinookSalmon Conservation Tags is sold per year, it being mandatory to tagthe caught salmon in order to prevent both over-exploitation andclandestine fishing.N In New Zealand the tagging is done by climati-zation associations, it being mandatory for any one catching a taggedfish to deliver it to such entity for its control.

e! Passage o j stocks. Much legislation also contains the obligationnot to interfere with the passage of salmon in key points and toremove any obstacles thereto. Fishing is, of course, prohibited in thoseareas. New Zealand has established a 50 rn prohibition area aroundsuch points." ln the Chilean early experience this proved to be aserious problem indeed, since local fishermen would hamper the

Canada, Department ot Fieheriee and Oceans: Policy for che ht¹re¹i~~ +I FetchHahhrc, 1988.

Canada, F~ Aa, R.S.C. 1QTO, Cr-! j, ae amended to 15 April 1988, coction 18.14, 15.

Ibid., eection 10.

Canada, Pacijk Caurucreiai S¹tr¹on Fishay Rcyd'o¹oer, C.R.C., 1978, C. 833, aeamended to 15 June 1088.

Canada, Brio& Cck'Nrmbio Sport Fishing Regulations, 1983, ae amended to 6 June 191$-

Canada, Regulatione cia�mpre note 81, Section SQ; and Regulatione cia, sscpre ante88, Section M.

New Zealand, 7ht Pal!water jhlieitt reyrhgiyer IQN, !9 Decemnber 198$, Sectioa %2,2S.

Ibid., sectiona il ct seq.

4S4

passage of salmon with nets in narrow channels of access. It turned outthat a number of these fishermen were hired by small industries toprovide fish, which in fact prompted strong measures prohibiting allfishing in key areas of access and passage of salmon.»

f! Sani tar y condi tions. Sanitary conditions of salmon production arealso strictly regulated in most national legishtion; the laws ofCanada,~ Norway," and New Zealand" can be mentioned in thisregard.

g! General measures. Measures of a general kind are foundthroughout the body of comparative law, such as the prohibition tofish for salmon at an early stage of its development,~ preservation ofwater quality,~ fishing seasons, and the like.

Reservation o f rights concerning ocean raechingNo legislation has thus far established property rights over the

smolts released from hatcheries, although a number of proposals havebeen made to this effect.~ All such legislation, however, has reservedrights over the returning stocks in waters or areas close to the point oforigin in order to prevent interception and ensure conservation. Inaddition, various license systems regulate f isheries and their conserva-tion, amounting thereby to a degree of protection for both stocks andproducers.

a! Protected areas, licenses and suggested leases in Canada. Inaddition to the conservation measures outlined above, Canadianlegislation provides for a limited protection of rights in areas close tothe production site. Under the Statutes of Nova Scotia, for example,

See Supra note 7S and aaaOCiated teXt.

Canada, Regulationa on health protection of 5ahee, 19 November 197B, La Gucttcdu Guatda, li, No. 25, 8 December 197B, p. 81$2.

See genetally Norway, Rurunary of Report Na 65 �955-1N7! to the Storaing orrAquacutoae, 1987.

New Zealand, Regulationa cit., supra note BT, Sectiona 25 ct std.

Canada, Act cit�supra note 81, Section 12.

For the French legialation aee generally Andre Faute: Ld tegtrucnasaoe dksslkeoNcut4uet, Note Technique, Documentation faute, Novembet 1988.

See supna note TT and aaaociated text.

455

escaping aquatic fauna remains the exclusive property of the licensoor lease holder while within l00 m of the licensed or leased area.Similar property rights are established under the laws of Newfound-land. These measures, it will be seen, analogize such salmon to thesituation of escaping domestic animals.

Under federal statutes no salmon shall be f ished in the Provinces ofQuebec, Nova Scotia, New Brunswick, and Prince Edward Islandwithin 200 yards of the mouth of any creek or stream and tributariesthat salmon frequent to spawn, except by angling with hook andline.~

It is through the licensing system that more specific restrictions areintroduced in Canada, mainly by fixing the number of vessels, sicko,and tonnage.~ This approach, however, has been subject to a numberof legal distortions and its results have been open to criticism. Quotashave been proposed, but not enacted. An interesting proposal toestablish "mariculture leases" has been made in order to afford legaIprotection for ocean ranching producers in bays or inlets adjacent tothe hatcheries in order to prevent interception.~ Under the FisheriesLaw rivers and other waters can be reserved for the natural orartificial dissemination of fish, interference being subject to penal-ties.'"

b! Licenses and development measures ie the United States. It isinteresting to note that even in those states taking a very restrictiveview on ranching, such as Oregon, the rights of producers arerecognized in connection with the stocks returning to their hatcher-

Province of Nova Scotia: An Act respecting the encouragement and regulatiaa ofaquaculture, 1 June 1988, 82 Rlia. ll 1988, Chapter 2, p. 12, eection 18.

Province of Ne|rfonndland: An Act reepecting the encouragement and. regrdationof e4gnaculture indwtqr in the province, 19 Jnne 198T. For the iegielation of the Provinceof Sritieh Columbia, eee Fleberiee Aci lOTQ, RS Chap. 1$'F.

~See note 85 supra and aeeociated text.

Pearee, op. ck, supra note 58, Chapter 'r: Licenaing and fleet deveioprneet poViey,"pp. 80-85.

le., pp, 1i9-150.

~+Canada, Act cit supra note 81, eectione, 44, 68.

456

ies."' Licensing and conservation will normally ensure an adequaterate of return. Alaska, which also takes a restrictive view, provides forspeciaj areas of catch, requires a permit of access, allows the recoveryof costs, and generally promotes a policy that assumes the legitimacyof an adequate rate of return.'~ This state also provides for a specialtax for the rebuilding of salmon stocks.'~ At the federal level, Law96-362 of l980 enacted a national plan of aquaculture, includingocean ranching except for those states prohibiting such activity.Research and development to this end is financed by the federalgovernment.'~

c! legal protection in New Zealand. The most complete legalprotection for salmon producers is that afforded by New Zealandlegislation. The legislation just specifies a detailed system of attribu-tioa of quotas for the maritime fisheries of various species, amongwhich salmon is not included, thus effectively precluding fisheries ofthis species. Secondly, a number of measures are enacted specificallyin relation to salmon requirement of licenses for artificial produc-tion of salmon; right of the license holder to fish in the specifiedwaters; prohibition to possess, process, sell, or dispose of salmon unlessbought or obtained from a licensed establishment; delivery of salmonaccidentally caught by commercial fishermen to authorized processingplants; strong monetary penalties for violations; tagging; and otherrights on salmon in connection with maritime leases.'"

d! Reservation of rights under British legislation. The Britishapproach is also based on a combination of conservation measures andlicenses. Two specific measures are important to highlight the areasubject to the management of salmon fishing districts extends to freshwater areaS and three 1nileS OffShOre, thus prOteCting the areas Of

'Oregon Lawa cia, supra note B4, Section 608.'A6.

Alaska, op. c¹�srqea note M, Title 10, Chapter 4S.

~!ma'., Tit es, Chapt«re.

United states, ¹aonal Aquacul¹ae bet of l%5, %8 September 1980, P ubMe Law No.N-ses.

New Zealand, regulationa cia, supra note er, Part I, Part H.

M~ z Q~d, M~ F~g za zN1, ~i~ 11 s! b!; and V~ F~gAetndeSeut AcS IQB, Section S�!.

457

special interest for conservation and fishing ~ the government isauthorized to deliver financial assistance and to promote research anddevelopment in this industry.'~

e! Reservation oj rights in Chile. In the Chilean case the questionof reservation of rights has also been discussed in the light of theserious interception of salmon that took place at an early stage-general reference to this effect is included in the Fisheries Law-The approach followed thus far, however, has been to ensure theadequate return of fish by means of conservation measures. Variousdecrees have been enacted prohibiting the fishing of salmon ia bays,canals, and other inlets through which salmon pass towards their pointof origin. Both commercial and sports fisheries have been prohibitedin these areas of access, The result of this policy has been successfulsince there is in Chile a high rate of return of salmon: 4 percentcompared to an average 2 percent in the northern hemisphere. Thequestion of whether the State should subsidize or directly undertakeranching has also been raised in this context. After a very successf'uIdevelopment of forestry through a mechanism of subsidies, it has beesproposed that the same approach be followed for the enhancement ofsalmon production.

f! The emerging Norwegian legislation. Norwegian Law No. 68 of14 June I985 has established detailed regulations for licensing in thisfield, including the issue of participation in the property of authorizedentities."' The interest in ocean ranching is more recent, but acommittee has been mandated to study the question of financing, rich'tto recapture, organization of the industry, and profitability of therespective undertakings.'"

United Kingdom, Act cit�cpm note yo, Section 1 l!{a!.

'. Md., Fisheries Aa Ml, Chapter 20, Sectiona S1, ss.

' See sqm note rS and aeeoeiated text.

~~ See juprm note N.

I L3Norway, Act no. N, of 14 June 1985, relating to the breeding of fiab and aheQ6aia.

1 12eibid., Report ck, sQptu note 90, p. 8. On the Norwegian ealmon industry aoe alsogenerally Frank Qjeraet: "Salmon farming in NOrway,' in McNeil, Op. Cit�arpn2 nate 2,SS-SQ.

458

Cusfomary law developments ie comparative law: a coeclusioe.Notwithstanding the variety of legislation and approaches that have

been examined, all share in common the legal characteristic ofpromoting conservation in general and ensuring a degree of protectionof rights for those undertaking an effort at production in oceanranching or other means.

It follows that although a number of aspects are left by internationallaw for each State to organize, a comparative examination of thisdomestic legal domain reveals a remarkable degree of uniformity as tothe legal objectives pursued, with details varying of course from caseto case, It can, therefore, be argued that there is here a new area inwhich rules of customary international law may be emerging. This isquite clear in regard to the conservation of the resource, since thesame concern is present both in international and domestic law. Andto the extent that some reservation or protection of rights forproducers is conceived of as part of the necessary conservationobjectives, as all legislation indicates, this other aspect may also eaterthe domain of international law through customary law development.The international law and the domestic law applicable to salmon arethus mutually reinforced in the context of the mechanisms ofinternational cooperation and of parallel domestic legal developmentsin specific areas, such as conservation. At the same time. differencesare maintained in the area of exploitation, where each country retainsits own model.

4/9

CHINA'S STRATEGY FOR DEVELOPMENT OF ITS MARE%KLIVING RESOURCES IN THE EKZ

Bilan Du

Senior Research FellowChina Institute for Marine Development Strategy

Xetroductiou

The exclusive economic zone EEZ! is a newly-establishedconcept in the international law of the sea. According to the l982 UHConvention on the Law of the Sea, every coastal state has sovereignrights over the KEZ, as does China -- a coastal state along the wester+Pacific. Although China has not claimed formally the exact extent ofits KKZ to date, a lot of work has been done to draft specific regula-tions for the KEZ and prepare for their promulgation at a proper tierce,

A series of marine activities are being carried out io Chisa'sKEZ; at the same time, policies and laws for these areas are also beialbrought forth, In this paper, I will mainly make a presentation GssChina's strategy for development of its marine living resources ia theEEZ. The paper will deal with the characteristics of marine livingresources, the situation of exploitation, and existing problems. Basedon this consideration, I will put forward the strategy and policy whichwill relate particularly to the adjustment of the structure of marinefisheries, technical innovation, and comprehensive utilization,legislation relating to management of fisheries, and preservation of themarine environment,

The Characteristics of Marine Living Resources

Apart from the Bohai Sea, China is adjacent to the Pacificthrough the Yellow Sea, the East China Sea, and the South China Sea.with its coastline of more than 18,000 km. There are more than 6,000offshore islands with about 14,000 km. of island coastline, These aremarginal seas with vast continental shelves and fishery grounds withdepths less than 200 m. which extend 2.8 million sq. km. spanningthree climatic zones, i.e., tropical, sub-tropical and temperate. The seacurrent circulation in these areas, with an apparent sea-front zone, isdominated by the Kuroshio system and offshore current system. Thegreat volume of water from the coastal rivers, about 1,880 billion cum. annually, have brought abundant organic matter and nutritional

460

salts to the offshore areas and provide marine living resources in afine condition for regeneration and growth. As a result, the character-istics of the living resources in China's EEZ are formed as follows:

Rich ie species, complex ie structureAccording to the statistics, there are nearly 2,000 species of

marine living resources, among them over 1,600 species are fish in theBohai Sea, the Yellow Sea, the East China Sea, and the South ChinaSea. More than 160 species have considerable value for exploitation:for example, the warm-water species in tropical and sub-tropicalzones such as aku, besugo, tuna, and flying fish; the temperate-waterspecies in rniddle latitude such as the large croaker, little croaker,hairtail, and scraper; the cold-water species in high latitude, such ascod and halibut. The complexity of the resources structure hasprovided the resources system with a steady and comprehensiveproductive potential.

Di f ferent ie distributionThe amount of plankton in China's EEZ concentrates more in

the offshore than the high sea areas, which determines the distributionof the marine living resources. Under the impact of the runoff fromrivers to the sea, and of the interaction of the coastal water system andhigh seawater system, the offshore sea areas have fertile waters andrich bait resources. So the offshore areas have formed the grounds forspawning, breeding, feeding, and overwintering of the main commer-cial species of China's marine fisheries. The offshore fishery hasbecome superior for China. Those species are relatively rare in thehigh seas.

2'ocr is potentialAlthough the number of species in the EEZ is great, their

natural productivity is not high enough and lacks special great shoals,as a result of the weak seafront of cold and warm currents and poorupwelling currents. Productivity is below the world average, with anannual product of 3 t/sq. km�as compared to 11,8 t/sq. km. forJapan's offshore, 18.2 t/sq. km. for the South Pacific, and 4,7 t/sq.km. for the North Sea.

461

Numerous fishing groundsThere are more than forty fishing grounds offshore and more

than ten high seas fishing grounds with a total area of 2.8 million sg.km.' These main grounds are listed as follows: the Bohai Sea aadYellow Sea fishing ground, Lusi, Dasha, Zhoushan, Nindong, Minny,South China Sea offshore fishing grounds, Dongsha, Yushan, Wentai,and Beibuwan fishing grounds, etc. Among them, the Zhoushaefishing grounds have the highest productivity and fishing seasoasthroughout the year.

Table 1

Square measure of the fishing grounds thousand sq. km.!Fishing Ground

Square MeasureSea Area

Square MeasureSea Area

Most of the species of the fishery resources in China's EEZ belongto regional species population, while few of them are oceanicmigration species. The following table shows the annual fishj.agproductivities of the respective sea areas~

China'a Marine Year Book �98B!, publiahed by China Ocean Preee, pp. 56-61, XQ88.

Yang Jiming, 'Marine Fiahery Reaourcee and Technical Policy," inatituha ofOceanology, Academia Sinica, 19S9, pp. 7-1B.

462

Bahai SeaYellow SeaEast China SeaSouth China SeaTotal

77

381

774

35064738

82353549

182 l2805

Table 2

Estimates of the Annual Rshing Prodnctivitles

AnnualSquare Annual Plankton Fishing

Measure Products Products10K km' g of C/km2 weight lOK t 10K tSea Area

Sohai SeaYellow SeaEast China SeaSouth China Sea

90686540

48.6174.4

337.894S.O

14,40051,680

100,100280,000

8

3877

350

446,180 150 S.8473Total

Sitnation and Problems in the Exploitation of Marine Living Re-$01rces

Li Yuede, 'The Baaic Situation of Marine Catching and Suggeationa on Delimitationef Piahing Tooia,: Yeilow Sea Fiaheriea lnatitute, Chineae Academy of Fiahetiea, pp. S-12,1989.

463

Crural situation for exploitationFor forty years, fostered by the state government, promoted by

scientific-technological progress, and motivated by rising livingstandards, China's fisheries have developed rapidly. The annualfishery yields increased steadily as follows: from 536,000 tons in 1950to 1.06 million tons in 1962, to 2.056 million tons in 1966, to 3,005million tons in 1974, to 4,381 million tons in 1987 and 5.10 milliontons in 1989. The fishing yield proportions of the Bohai Sea and theYellow Sea, the East China Sea, and the South China Sea in the totalmarine yields are: 30.4 percent, 50.0 percent, and 19.6 percentrespectively.'

In 1985, there were 132,000 motor boats with 4.95 millionhorsepower, more than 93,000 non-motor boats with a loadingcapacity of over 196,000 tons, and one million people engaged direct!yin fishing. In 1988, the number of motor boats rose rapidly to over200,000 with 7.3 million horsepower, meanwhile, non-motor boatsdeclined relatively. According to the statistics �980-84!, the yields by

motor boats had made up 83.7 percent of the total marine yields. Thestate-owned fishing boats always operate on the sea areas between 80-100 m. depth, and the others always on the offshore areas.

In the 1980s, a substitute situation appeared in the country' smarine living resources. The yields of yellow fin scraper fell froth200,000 tons in 1976 to about S0,000 tons; but the yields of blackscraper rose from 69,000 tons in 1983 to 300,000 tons in 1986; roundscads rose from 30,000 tons in 1981 to 230,000 tons in 1985, andPacific herring fell from 180,000 tons in 1972 to 700 tons in 1988. Thelarge croaker and little croaker are on the verge of extinction, and thehairtail is down by a wide margin. On the other hand, anchovy hasbecome a superior species in the Bohai Sea, the Yellow Sea, and theEast China Sea; the annual yield of golden carp rose steadily and thepopulation of true sardines has grown and extended westward of theYellow Sea. Its yield was over 20,000 tons in 1988.

Problems

Beeline o j the contenliomd fishing targetsMainly due to overfishlng, China's conventional fishing targets

declined to different degrees. For instance, the annual yields of largecroaker were 220,000 tons in 1934, 197,000 tons in 1974, and 26,000tons in 1986, only 12 percent of the highest; little croaker 270,000 tomsis 1934, 153,000 tons in 1957, and 31,000 tons in 1986, only l 5percent of the highest; Pacific herring 180,000 tons !n 1972, 17,000tons in 1977, and 700 tons in 1988, only 4 percent of the highest; cad40,000 tons in 1934, 28,000 tons in 1969, and only 3,000 tons now; theyield of hairtail at its peak was 677,000 tons in 1974, but it has faHeato about 400,000 tons at present. Such resources are facing a crisis ofoverf ishing and degeneration, while the species populations change toyoung, small, and bad quality. At the same time, the poor exploitatioepatterns of high sea and offshore areas has produced the situation ofcoexistence of over-exploitation and insufficient utilization.

Esshdmrer o j fishheg statureIn pursuit of the yields, the fishing tools are developed blindly f or

high and steady productive capacity, The yields by trawl-net andset-net produce 70 percent of the total. With the over-developedtrawl-nets, the fishery resources of the bottom and near-bottom areseriously destroyed. Meanwhile, ecological environments are alsoaffected and make it unfavorable for feeding and living far thedemersal populations. On fhe other hand, some traditional giBaets andfishing tackle are not developed enough. The unitary fishing structure

fails to deal with the complexity of the living resource structure andrational utilization of the resources.

!Parsing of the fish resource ecvironNIentCoastal marine pollution has aho exerted a harmful influence on

resources, In the polluted sea areas, resources have declined, fishinggrounds have moved outward, and the fishing season has failed toform. About 80 percent of the pollutants, made up mainly of organicmatter and petroleum, are from the land and carried by rivers to theseas. The discharge of oil by marine petroleum exploitation is a majorsource of pollution, as are vessels and tnaritime distress. More than 6,4billion tons of wastewater are discharged out to sea annually, contain-ing COD, oil, copper, arsenic, zinc, aluminum, chromium, cadmium,and mercury. These pollutants have destroyed the spawning, nursery,feeding, and over-wintering grounds for the main commercial species.

Strategy for Developmeat of Marine Ijvlag Resources

Ad just the structure of marine fishericsOn account of the unreasonable structure of marine fisheries,

China s marine fishery resource, which is characterized by conven-tional fishing targets, is changing from the state of high quality,steady, and critical to declining and substitute. In order to reverse thesituation, our government laid down an adjusting policy of 'usingresources rationally, developing marine cultures fully, and improvingquality emphatically" in l979. And in 1985, a strategy was put forwardto develop the marine culture, the high sea and deep sea fishery, toimprove the offshore fishing structure and the processing skill, by wayof comprehensive management.' The following policies are providedto fulfill this strategy:

a. Readj ust the o f fshore fishery, explore neo resources, and recoverproperly the conventional fishing tar gets.

First, constrain the number of fishing boats, delete surplusoffshore fishing abilities, and move excess labor to other occupations;second, readjust the fishing codes to make the kinds and amounts offishing tools fit with the diversity of the resources; third, explore newspecies such as anchovy, golden carp, and true sardine, etc� fourth,

She Danu and LI jianhua, "The Adjusting and Developing Policy of Marine FiaheryStruCture, the water-prOduCt Department, Agricujture Miniatry Of China, pp. S-N,L9sO.

465

Zhejian Province offshore north of 27 degrees of N, latitude!. Otherprohibited zones, which extended out 12 n.m. into the territorial sea,were set up on the South China Sea and offshore area of FujianProvince where operation by trawl-net boats was prohibited.

To breed and protect the living resources and strengthen fisherypolicy implementation, the State Council promulgated the "RegulationsGn Protecting and Breeding Aquatic Resources" in 1979. According tothe characteristics of fisheries resources, distribution and migrations,concerned departments were empowered to lay down detailed rules offishery policy.

Since large croaker and hairtail had been seriously destroyed, theState Council set up protected zones for infant fishes in the East ChinaSea and the Yellow Sea. The protected zone for infant large croakerlies totally on the East China Sea, and the zone for hairtail lies on theboundary of the Yellow and the East China Seas between 31 degrees31 minutes and 34 degrees north htitude. In the infant large croakerzone, trawl-net boats are forbidden to operate in the first two monthsof the year, and in the hairtail zone, operations are forbidden fromAugust to October.

In 1986, the Standing Committee of the State Council promulgatedthe "Fishery Law of People's Republic of China," the content of whichconsists mainly of: permission to fish, prohibited fishing zones,prohibited periods, recovery periods, protection of the spawning,over- wintering, and breeding of the main species and criteria of mesh.

Bilateral and multilateral agreements'In 1957, China signed fishery agreements with Vietnam and North

Korea to regulate the offshore fishery.China and Japan signed non-governmental fishery agreements in

1963 and 1965, and in 1975 signed a formal "Fishery Agreementbetween the People's Republic of China and Japan," which had set upsome prohibited fishing zones and protected fishery zones.

For the purpose of preventing the resources from being destroyedby trawl-net boats, the non-governmental agreement of 1963 set upthree military zones and a protected zone which lay on the coastal seaareas of t!e Yellow Sea and the East China Sea.

Apart from the contents of the non-governmental agreement, the1975 Agreement drew a line of prohibition between 38 degrees and 29

Men Degong, 'The Contemporary International Law of the Sea," pp.464-466, China Social Sciences Press, 1988.

467

degrees North latitude for the operation of 600 horsepower fishingboats �00-150 n.m. from the coast! on the Yellow and the East ChitsSea, and designated three fishing prohibited zones and two recovery'zones recovering from 01 September to 30 November annually.

Prefect marine ccosystemsThe Chinese government has paid attention to the problem of

marine pollution and has carried out a policy of "prevention first, andprevention with clean-up combined."

The results of pollution monitoring over the Bohai Sea, the YellowSea, the East China Sea, and the South China Sea for several yearsshowed that the coastal areas are generally polluted, while theconditions in the high seas are basically sound. The land sourcepollutants which mainly consist of living waste water without disposal.have led to eutrophication, plankton over-breeding, and the appear-ance of "red tide." In China's adjacent waters, twenty-aine cases of"red tide" occurred in over thirty years, and twelve cases in 1984-87.All of these are threatening the ecological balance.

The tnarine environmental protection regulations and laws ratifiedby the State Council from the 1970s are listed as follows:

1974: the "Provisional Regulations on Prevention of Pollution inCoastal Waters";

1979: the "Law on Environmental Protection of the People' sRepublic of China" and the "Regulations on Management of ForeignVesseh of the People's Republic of China";

1982: the "Law of Marine Environment Protection of the People' sRepublic of China." The law deals mainly with the factors of pollutionand provides for prevention of pollution damage to the marineenvironment by coastal projects, offshore oil exploration, andexploitation, land-based sources of pollution, vessels, and dumping ofwastes.

For the implementation of this law, a series of regulations, rules,and standards approved by the State Council have been laid down asfollows:

1982: "Standards on the Sea Water Quality of the People's Republicof China," "Discharge Standards on Vessels," and "Discharge Standardson Marine Oil Exploitation";

1983: the "Regulations on Prevention of Marine Pollution byVessels at Sea" and the "Regulations on Environmental Protection inOffshore Oil Exploration and Exploitation of the People's Republic ofChina;

1985: the "Reguhtions on Marine Dumping of the People' sRepublic of China."

468

In addition, the regional governments of littoral provinces, cities,and autonomous regions have laid down measures to implement the"Marine Environmental Protection Law" and local standards on themarine environmental quality and discharge of pollutants for variousseas. Thus, a more or less complete legal system of marine environ-mental protection has been formed in China.

ProspectsThe laws and policies on China's EEZ are still not perfect;

problems exist especially on the enforcement of the laws. In order toenhance the legislation and enforcement of law, the following workshould be done:

l. For the sake of exploring and exploiting marine resources underthe guarantee by law, basic national laws should be formulated. Andthrough legal methods, we shall coordinate the exploration andexploitation activities of respective occupations.

2, According to the resource characteristics of the different seas,functional zones will be delimited to determine the primary explora-tion and exploitation trends and targets on a comprehensive basis,

3. In order to manage and develop fisheries by law, we willimprove the fisheries law enforcement and management, perfect theenforcement system, and improve the personal quality and the legalunderstanding of fishermen.

4. For the purpose of improving the scientific management of theoffshore, high sea, and deep sea fishery, and for exploring new kindsof living resources, we will strengthen the investigation and monitor-ing for these fishery areas and set up a modernized monitoring system.

5. To protect the marine environment of the EEZ, laws will beused to diminish and control marine pollution by vessels, oil explora-tion and exploitation, and coastal projects and land-source pollution.Monitoring and management of the main pollutants, polluting sources,and seriously polluted sea areas will be strengthened.

6. For conserving the ecological environment of the Yellow Sea,the East China Sea, and the South China Sea, the joint responsibilityof the coastal States, regional cooperative conventions, and actions willbe necessary to protect the reproductivity of living resources, todiminish the discharge of pollutants and recover the ecological balanceof the marine environment.

469

COOPERATION ON DEVELOPMENT OF TUNA FISHEIHES

GuiHermo GomezTemple, Barker and Sloane,!nc.

San Francisco

Introduction

Since the world-wide implementation of 200-mile exch'~economic zones EEZs! in the mid-l970s, Latin Americae coitalstates and island states of the Pacific have been more active ia th~development of their tuna fisheries. Throughout the 1980s, tmsogdevelopment processes encountered stif f resistance from major dis~twater fishing nations DWFNs! which, in many instances, lost awessto major tuna fishing grounds.

As we enter the 1990s, most Latin American coastal and is~>states in the Pacific are still struggling to develop their tuna f Ishem Iesand, even though nearly fifteen years have passed since the Iw4~majority of these developing states declared sovereign rights o~tunas found within their EEZs, some DWFNs still refuse to ~sizesuch claims.

As changes in world tuna fisheries and markets continue to occur.this paper attempts to identify and analyze specific econoss6copportunities for the development of tuna fisheries of the Pac~jcAsian region. The perspective taken corresponds to that of a develoP-ing coastal or island state neighboring the Pacific.

For simplicity of analysis, the paper has been divided into A8foHowing sections.

In order to provide necessary background and a sense of the stakesinvolved in the tuna development "game," the first section of the g.Perdescribes the fisheries of the Pacific within the context of world ~fisheries. In the second section, the paper reviews the characteristicsof the main players involved in the fishery.

Section three identifies and analyzes what appear to be the mainissues and constraints surrounding and limiting the development of tbetuna fisheries of Latin American coastal states and island states of ~Pacific. Since certain recent developments in the industry appear ~ beof urgent importance and could significantly affect the outloo< forboth development and cooperation in the fishery, this sation ILIAdiscusses these events.

In the final section, specific economic opportunities for cooperationin tuna development are analyzed and some conclusions are offered.

470

Description of the Pacific Tuna Flsherlea

lfarld Tuna Production ant tIu.' Tune Jtesourees o j the' Pun'i fic',Over the past decade, world tuna production has averaged around

two million metric tons per year,' The harvest of these tunas takesphce in the temperate and tropical regions of the Atlantic, Indian, andPacific Oceans. Of the total world tuna production, by and large, thePacific Ocean is the main producing area, accounting for more than64% of the overall 1985 global tuna production. The remaining catchesare split between the Atlantic and Indian Oceans which accounted forapproximately 22 percent and l4 percent, respectively in 1987.'

Most of the catches of tuna throughout the world oceans, and thePacific is rio exception, are harvested by the fleets of D%FNs in the200-mile EEZs which now fall under the authority of the coastal statesof the region.

On a much more limited basis and only in few instances, developingcoastal and island states bordering the Pacific do rarely participate inthe commercial harvest of these highly valuable fisheries resources.'

As we indicated earlier, however, these states are becoming moreactive in tuna fisheries and are looking for ways to engage themselvesmOre in the harveSting, prOCeSSing, tranSShipping and marketing oftunas found in their waters.'

In order better to understand the tuna fisheries in the Pacific Basin,the next few pages highlight the main features that can be observed inthe Western and Eastern Pacific fisheries.

See Pmamdinsa of INFOFISH Tuna Trade Conference, Bangkok, Tbailand, 2S-2TFebruary 1086 and Conference Program.

See I086 Annual Report of the Inter-American Tropical Tuna Commieeion, La nolle,California, 108T.

Few Latin American coaatal atatea and Paci5c ieland nationa have developedconunercial tuna 5eherim. In Latin America, Memco, Veneauela, and Ecuador are majorplayera. In the %eetern Paci5c, Coaatal Statea and Ialand Nationa which have developedtheir tuna 5aheriea are the Philippinea, Indonmia, the Solomon Ialanda, Kiribati, andPapua New Guinea. A more detailed analyaia of the atatua of their fiaheriea ia preaentedin Section Two.

See 4, David Doulman, Development and Expanaion of the Tuna Puree SeineFiahery. In Tuna Iaauea and Perapectivee in the Paci5c ialand Region. Edited by D 7Doulman. Eaat-Weat Center, Hawaii, 198T.

Key features of the IFcstern Tropical Paci fic WTP! True Wisely'P'The tuna resources found in the Western PaCifiC support a n1ajOr

international commercial fishery primarily for skipjack tunas.although yellowfin tunas are also important, The predominant fishingmethod used to catch these tropical tunas is purse seining and, to alesser degree, baiting and longlining. In great volumes, tunas arecaught in association with payaos and/or fish aggregating devices fads!.

Tropical tunas harvested in the, Western Pacific are utilized forindustrial processing and the products canned tuna! enter the majormarkets for tuna in the U.S., Western Europe, and Japan.

At the present time, the Western Pacific tuna fishery is not subjectto any biological or economic management measures applied either ona regional or a national basis, by either a regional organization or byindividual Pacific island nations. In the recent past, however, at temptshave been made to restrict the use of drift and gill nets in the fishery-

The skipjack and yellowfin tuna resources of the area appear to bein relatively good biological condition and there is evidence that couldsupport the expansion of the fishery.'

Scientific information on the resources is generally adequate;ho~ever, data regarding past historical catches in the region areinappropriate.'Catch data are gathered, when possible, by individualiSland StateS. Tuna ScientifiC reSearch for the region is pri1narilyconducted by the South Pacific Commission.

The tuna fishery of the Western Pacific accounts for about 30percent of the average global tuna production of the major marketspecies on a yearly basis. Tuna activities are of critical importance tomost island states in the region, since these resources constitute apriority resource for economic growth.'

Over 80 percent of the yearly catches are harvested within the200-mile zones of developing island states by DWFNs. ArtisanalfiSheries of island StateS may CatCh on the average Only i0,000 metr1ctons on a yearly basis.' The fishery is highly dominated by twoDVFFNs, Japan, and the United States.

See Report ot Meeting ot Coeetal States and Dietant %Vater Fishing Natioaa. SouthPaci5c Comjnieeion Noumea New Caiedonia, 18-%4 June 1184.

7See Forum Fieherim Agency. The Tune Fishery and Industry in the Paci6c Ielande'-An oeerriew. FFA Rtport No. 87/44. October 1087.

~ cia�FFA Rcport No. 8Y/44,

472

and skipjack tunas. The predominant fishing method used is purseseining, and to a lesser degree baiting and !onglining."

Tunas harvested in the Eastern Pacific are utilized for industrialprocessing and the products also go to the major world canned tunamarkets. Although in the past the fishery has been subject to biologi-Cal management overall quota for yellOwfin tunas!, at the preSent tirrsethere is not any biological measure applied either on a regional or anatiOnal baSiS by either a regiOnal OrganizatiOn Or by individual COaStfslLatin American states.

The tuna resources appear to be in relatively good biologiccondition. Scientific information on the resources and a relativelygood data base regarding historical catches in the region are availableand have been gathered since l949, until now by the Inter-AmericanTropical Tuna Commission IATTC!.

The tuna fishery of the Eastern Pacific accounts for approximately! 5 to l7 percent" of the average global tuna production of the majormarket species on a yearly basis.

Tuna activities are important to some Latin American coastal states,for they provide foreign exchange earnings via exports, employmentopportunities, and additional food sources. Tuna does not, however,constitute a critical resource for the overall economic development ofthese countries, as it does for many of the Pacific island nations.

Around 60 percent of the yearly catches are harvested within 200miles of developing Latin American coastal states. The remaininscatch often is caught east of 150 degrees west. Until recently, thefishery was totally dominated by one DWFN." Latin Americancoastal states claim jurisdiction over tunas within their 200-Inilezones." Some of these areas have greater concentrations of tunas than

Moat of tha catch ia taken utiliaing puree aeinara which aet over tunaa. hccordicccto IATTC data for 197$, the Eaatern I acific tuna fiahery accounted for ~ combinedynHowftn and aldpjack catch af approximately 416,996 ahort tone {at!. YeDowftnaccounted for Sl '2 I 69 6 at and akip jack for 1 02,400 at.; 08. 1 pere en C or 2 1 2,9 6 5 at. ofyellowfin tunaa were caught in aaaociation with dolphina by the entire international fleet ~while only 1,601 at. or 1.0 percent of the akipjack catchea involved dolpbina.

u See J.Joaeph and J. Qreenough, tnternational Management of Tuna, Poryoiae andBiMah. Univeralty of %aahington Preaa. U.S.A., 1919.

l Fhe thhery waa dominated by the U.S. until the end of the 1QTOa. Mexico andVeneauela, togeCher with the U.S., are the major playera today.

Some Latin hmerican coaatal aCatea are aignatoriea of Che U.N. Convention of theLaw of the Sea and have, therefore, claimed a 200-mile EEZ. OCher countriea have riotyet eigned the Convention and claimed a 200-mile Territorial Sea.

474

others, and only a few Latin American coastal states have developedtuna fisheries.

Coastal state jurisdictional claims have been and are still contestedby the U.S. Japanese fishing activities in the area are limited, as areKorean and Taiwanese operations. An important feature in the fisheryhas been the significant participation of one Latin American DWFNnot neighboring the Pacific: Venezuela. In addition, flags of conve-nience are becoming increasingly present,"

Tuna harvesting and processing infrastructure exists only in fewcountries; however, most of the tuna caught in the ETP is not pro-cessed in the countries neighboring the regional fishery, Efficienttransshipping facilities only exist in one country, Panama, althoughother states provide these services at times.

Latin American coastal states recognize the need to cooperate ontuna management and are working toward the establishment of aregional organization for that purpose. Until such an organization isin place, however, individual coastal states are making unilateralmanagement decisions over tunas found within their respective EEZs.

Two regional Latin American fisheries organizations and oneinternational tuna fishery organization are currently actively involvedia the fishery. These organizations are: the Organization Latinoameric-aaa de Desarrollo Pesquero OLDEPESCA!, the Comision Permanentedel Pacifico Sur, and, as earlier indicated, the IATTC,

Licenses are currently being issued to certain DWFNs by individualcoastal states. Very little coordination among Latin American coastalstates exists at the present with respect to the levels of fees charged byeach state to provide access for DWFNs. Surveillance and enforcementmeasures within individual KKZs are limited and carried out by thestates themselves. Seizures of U.S. tuna vessels fishing within theseareas are often sanctioned with embargoes.~

United States law concerning marine mammals porpoise amongothers!, is often applied against states engaged in the fishery. Coua-

ln addition to a fe«veaee4, «hich on and oN have been registered in GrandCayman, Ne! herlands Antilles, and the Bahamas, over the last fe«years several v~4,perhaps up to nine vessels from Vanuatu, hare been operate% in the feIhery,

Magnueon Fishery Conservation and Management hct of 1076.

475

tries not in compliance with such laws are often sanctioned withembargoes by the U.S."

It is clear that the tuna fisheries in the Pacific have many similari-ties and the coastal and island states on both sides of the Pacific aretaking steps to ensure that their populations benefit from the tunareSOurces found in their EEZs. In this process, their intereStS and thOSeof the DWFN's are often in conflict.

In the following section we briefly analyze and discuss the role ofthe main players in the Pacific tuna fishery.

The Major Players

The Tuna fishery in the Pacific continues to be dominated by Japanand the U.S. at the harvesting, processing, and market levels; however,in the past ten years or so a number of new countries have entered thefishery and industry and their role is becoming increasingly important.Because any effort to further cooperation in tuna development in theregion is likely to involve a variety of them, their roles and some ofthe problems they currently face are briefly discussed next.

hfajor Players at the Harvesting LevelAs indicated, Japan and the U.S. are the dominant players. The tw'o

countries continue to be the major forces affecting the harvesting,processing, and marketing of tunas caught in the Pacific, for theyexercise significant control over their respective markets. Theirharvesting operations extend throughout the Pacific. The mainChallenge faCed by the Japanese and U.S. tuna fleetS in the regiOn isto maintain access to traditional fishing grounds at the least possiblecost, and to the extent possible, to keep other countries from compet-ing with them.

The tuna fleets of both countries are increasingly facing difficultiesin maintaining access to tuna resources in the EEZs of coastal LatinAmerican or island states of the Pacific. In the Western Pacific, Japanis faced with increased competition from longline fleets of Taiwan andKorea, both of which are also penetrating the Japanese sashimimarkets. In that same region, the Japanese group seiner operations are

ides~cent preeeuree exerted by environmental groupe upon the U.S. Government toenforce Che Marina Mammal FIotective Act, may reeulC in the impoeition of Curnembargoes on meet Latin American countriee because either their incidental porpcueetuna mortality raCe ie higher than Chat inNcted by U.S. veeeeia involved in the Sahery,or becauee they 1adr a coenparable program to that of Che U.S. to protecC doipbme, orbo th.

476

also increasingly competing with the tuna purse seine fleets of theU.S., South Korea, Taiwan, and the Philippines.

The U.S. purse seine fleet is active in both the Eastern and WesternPacific. In the Western Pacific, the U5. has been able to negotiate afive-year agreement with sixteen island states, which ensures accessfor a significant portion of its Aeet to the Western Pacific fishinggrounds. In the Eastern Pacific, the U.S. tuna fleet continues to be animportant player. Its role, however, has significantly diminished as thefleets of Mexico and Venezuela have increased their participation.

The future role of all the tuna fleets in this region as a major playeris uncertain as recent events involving dolphins may force some ofthese vessels to move to other ocean areas.

Secondary players at the harvesting level in the tuna fishery of thePacific are a selected number of countries which have developed tunaAeets during the last ten years. These new players, which are rapidlybecoming distant water fishing nations, are: Taiwan, Korea, thePhilippines, Mexico, and Venezuela, and to a much lesser degree,Ecuador.

The Philippine, Korean, and Taiwanese fleets operate primarily inthe Western Pacific, where they compete with the fleets of Japan andthe United States, Unlike the Philippines, both the Korean andTaiwanese fleets lack tuna resources off their coasts. Consequently,they are forced to negotiate access with Pacific island states. In theEastern Pacific, Venezuela, since it does not "neighbor" the Pacific, isa true distant water fishing nation in the region. The Venezuelan fleetoperates exclusively in the ETP and is commercially linked with U.S.interests; most of its catches are sold to U.S. processors. The Venezue-lan feet was developed between the late seventies and early eightiesvia a package of incentives designed to attract U.S. vessels to re-flagin that country.

The Mexican tuna Aeet constitutes the major player in the fishery.In the recent past, the catches of the Mexican Aeet surpassed those ofthe U.S. The fleet operates both in the Mexican EEZ and, with in-creasing problems, in the waters of other Latin American states. TheEcuadorian fleet operating in the ETP is small. Recent commercialarrangements with both Colombia and Vanuatu, however, have in-creased significantly its participation in the fishery. In addition, somecommercial links exist between Spanish and Ecuadorian tuna interests.

In the Eastern Pacific, the Mexican, Venezuelan, and U.S. tunafleets are currently facing major challenges as a result of eventsassociated with the dolphins incidentally killed in tuna purse seineoperations. Their inability to sell tuna caught in association with

477

dolphin in major worM tuna markets may force some of tl,ese v

operators to redeploy to other fishing areas.

~ajar Players ut the Processing Lese The U.S and Japan continue to be dominant players in the pr~e proces3.

ing end of the industry; however, due to increasing labor co tcountries in the Pacific have become major players in theprocessing segment of the industry. U.S. canners buy fg]is otprocessing in the Eastern and Western Pacific from both do>~<ic~foreign ye~i Until recently the main U-S tuna pr~eeB St�Kist, Van Camp, and Bumble Bee, had plants in American Sulio ~F erto Rico- Bo th Van Camp and Bumble B e, however, are 16th,process of closing those plants.

Bumble Bee was recently acquired by The Unicord group OfThailand and, hence, their strictly U.S. character is questiougblSimilmly, Van C~p was recently acquir~ by the h4mtfmt Groul,from Indonesia and is in the process of expanding their operation +that area. The Japanese canned tuna processing segments, whicb formany years supplied canned tuna to both the U.S. and Europemarkets. has lost participation to major Thai and Philippine gQug}tuna processors. High labor costs in Japanese canneries appear tp Qvgbeen the major reason for this.

Both U5 and Japanese processors are becoming more active iu tlItrlde of semi-proceed tuna cooked loins!. In commercial associatiouwith these major processors, some countries like Colombia, Ecuador,and Costa Rica are emerging as major players in the semi-processingof canned tunas. Thailand, with very low labor costs, has becoiM Oemain supplier of canned tuna in world markets. They have penetratodthe U.S. and Western European markets. Thailand is a major importerof raw tunas. The country does not enjoy significant volumes of tuLuin its waters and does not have a relevant tuna fleet. The maiuchallenge facing the Thai processing sector in the future lies iusecuring the necessity supplies of raw material.

Major Players Coatrelbeg Nm'kateJapan and the U5. continue to control their own markets to >

remarkable extent. In Japan, both Taiwan and Korea have bee»bl'to penetrate the mshimi ma.ket ln some degree, but major Japan@8multinatio~ involved in h estlng and trading with tg~ havesuccessfully limited their participation. In the U.S., multinat'oucorporations, such as H.J. Heinz, parent company of Star Kist, h"cmajor market po~er. Together with Bumble Bee and Van CamP

Seafood, and their respective new partnerspenetration into this market for other countries v d'f f'~ ~ ~ ners, tar Kist has made

ries very difficult.Only in a few instances and with limited volumesvo umes, countries like thephilippines and Ecuador, and to a greater extent Th l d, hai an, have beeng le to place canned product in the U.S. market M k ts 'lVe. ar ets in Westernconcentrated. Therefore numero, numerous processing� tr,-es have been able to penetrate these markets.

I s�es a>d Constraints

b ~Iris gyp' gP~$ftctllljs heal'c'sfllcf the DcF8loPNMllf oj TENNO~z g~gzg gag Islmrd Statesdiscussed in previous sections, only a few developing states

p cific have been able to develop their tuna fisheries. The vastty have not succeeded. There appear to be several major con-

issues preventing most of the resource-rich developingf om establishing their own commercial fisheries and these are

discussed next.

and sland states in the pacifthat lack the capital resources necessa � t

l es in the developmentof their tunafhheri . Tprocessing plants are very expensive, a�d markets are d f f

onsqquentl, the development of their tuna fisheries ' �if;y dep nds on the good will of the major players to mi t th

their development. Thus far, this has not happeno d major element which appears to b»m,-t d lo-

iwnt of tuna fisheries is the fact that, most of these developingcountries do not readily have qualified human resources primarilyfishermen! to enter commercial harvesting operations. Furthermore,in most of the resource-adjacent countries, basic industrial infrastruc-ture to provide room for tuna development is lacking. Hence, it wouldoften be necessary to attract major players to invest in this infrastruc-ture, too, This implies large amounts of capital which investors areusually unwilling to commit.

ln addition, enforcement capabilities to control operations ofDWFNs in the waters of these developing countries is limited at best.Therefore, DWFNs operate relatively unrestricted, further limiting thepossibilities of the developing states tp benefit from their operations.This is further complicated by the fact that major DWFNs are not yet.illing to recognize jurisdictional claims over tunas.

479

To be able freely to sell their tunas in gl tunawould be forced either to abide by the new, ese Aeetsby the ma3or U S canners and U-s government regulat o orwould imply changing fishing s~tegies to cat h g ons whichassociated with dolphins!, or else to re-deploy their activiti to o holphin free" tuna fishing areas. These areas ' h o other

Eastern Atl»tic»d/or the Indian Ocean Thepossibilit of. ' '.' ~the U.S. policies and fishing only for non US ~k >represents a short-term, limited option for a fewew pr ucers.likely that some of the existing vessels will enopting and selling their tuna in the marketplace d th fwi encounter problems

p ace an therefore bef prced to abandon the f ishery. Opportunities for acqu' ' 1or acquiring vessels atunted prices may open up for both other developing coastal andd states in the Pacific and major tuna processors in A ' h Yors in sia who may

need their own fleets in the futur

S me vessel owners may seek to re-deploy their operations to otherparticularly the Western Pacific, and thus offer opportunities

fo r joint ventures, re-flagging, and other arrangements with newrs who may compete to provide the necessary incentives to attract

these fleets.Since Eastern Pacific tuna production may be significantl d d,

the existing processing in frastructure currently utilized bunnecessary in the region- So me of these pr~essing plane andfreezing facilities may be suitable for deployment to othe

dition, there are already some plants previously in the hands of theMexican government which are already for sale at discounted princes.Existing and new processing interests may also have the opportunityto establish new links with harvesters and open up fresh sources ofsupply.

Finally, the fact that some of the fleets currently operating in theEastern Pacific may be moving to the Western Pacific also providesthe chance for island states to broaden their scope of countries whichcan assist in their tuna development processes. The inclusion of newplayers also strengthens the negotiating position of the island statesvis-a-vis traditional distant water fishing nations.

Concluding Remarks

s we enter the l 990s, a number of economic opportunities for t" nadevelopment in the pacific-Asian region appears to be emery'ng. Forcoastal and island states in the Pacific, cooperation in the developmentof their tuna fisheries may well be just around the corner. Therequired cooperation for tuna development in these countr'es may not

481

COMMRNTARy

K.. SugajTechnological Research Asso iafipn

of Technp-Super]incrJapan

Iatroductipn

y es, the oce n hasing, mining, and ma in t, ieon has changed with the t'

ean is npw spreadopment, absprptip

ent pf ocean utilization h ' gy.. ma'ine science and tech� lill continue tp expand t es

On the other hand, the convsea tra»portation, will g'

oILs be pme more ~Southeast Asian area.

I would like to make a comment here pn the research and develop-ment program pf the Techno-Superliner that is now being undertakenin Japan. A target of the program is the fundamental design technolo-gy to build a high-speed ocean-going vessel with a performance speedof 50 knots, a payload of 1,000 tons, and a range of over 500 n,m. Inaddition, the capability to navigate on schedule in rough seas isearnestly desired. When the Techno-Superliner makes her debut inworld transportation, she will function as a main artery in the rapidlygrowing Asian economic area, as it can be covered within only one ortwo days' voyage.

Background

At present, vessels still play a significant role in mass transport pfPrnnary products such as fuels, mineral resources, and heavy industri-al cargoes. Meanwhile, the mode and quality of the transport systemhas witnessed a phenomenal change, the increase in cargo volunie witha high added value. As this kind of cargo requires fast delivery, therapid advance in air transportation has created international tran'portwhich unites ]and, sea, and air transportation.

483

>a Japan, where industrial and economic structures have beencritically reorganized, improvement of the transportation system Ineeded to cope with the increasing volume of trade in such cargo IIfreSh fOOdS, manufaCtured gOOdS, and half-finiShed gOOdS that existSaot o»Y inside of Japan, but betweea Japan and newly industrializingeconomies of Asia.

Thus, a very high-speed vessel such as the Techno-Superliner,which is halfway between an aircraft and a container ship anddesigned to carry about ten times the cargo of an aircraft at about twptimes the speed of a container ship, is being sought.Idea

There are three forces to support ship weight buoyancy, lift force,and air pressure.

Conventional cargo liners and passenger ships are in the buoyancycategory. This type of vessel, although it comprises a predominantportion of seaborne trade today, as its resistance is small at low speedand a large vessel size is possible, is subject to a high resistancethreShOld beyOnd a Certain Speed and tO Severe oSCillatiOns in waveS.ACCOrdingly, there iS a praCtiCal upper limit tO the speed of ShipS ofthis type.

A lift type vessel is supported by the lift force working on itshydrOfOilS. A veSSel with fully submerged hydrOfoilS, in particular, isnearly insusceptible to wave impact and offers excellent seaworthinessbecause the main hull is perfectly above the water surface. This typeOf veSSel iS suited tO a relatively small but high speed craft, but a dis-advantage is revealed as vessel size is increased, as the resistance in-creases approximately in proportion to the hull weight. An example ofthis type of vessel is the jetfoil, which currently has a maximumdeadweight capacity of about 80 tons.

An air preSsure type veSSel is kept abOve the water level by air pres-sure. The speed of this type of ship can be increased easily because thesmaller submerged hull portion results in a correspondingly low resist-ance. MOSt of the hull, hOwever, is aOt far frOrn the water SurfaCe, Sothat the ship is highly susceptible to wave impact in rough seas Atypical example is the hovercraft, which currently has a maxim'+deadweight capacity of about l00 tons.

Each Of theSe three SystemS far SuppOrting Ship weight haS itsadvantages and disadvantages, and none can satisfy individoally thefour main requirements mentioned above for the Techno-Superliner

484

The purpose of the research and development gpo! program is todevelop a new type of high-performance, ultra high-speed cargovessel by combining the three systems to complement each other.

Breakthrough Technologies

The following four major challenges must be met successfully tocomplete the R8cD program.

Development of a multi-supported hybrid hull form with anepochal advance in resistance and propulsion performance andseaworthiness.

Development and selectio n of new materials lending them-selves to hull weight reduction, and research on the mostsuitable hull structure for the Techno SQperlinerDevelopment of a high-power, high-efficiency and light-weight water jet propulsion system.Develo pment of a control system for controBing ship attitudeaccurately and safely at high speed.

EstaMishment of the Assoclatlon

The Technological Research Association of Techno-Superliner wasorganized in July l989 by seven major shipbuilders in Japan under thesponsorship of the Ministry of Transport so as to accomplish the newdesign technology of ultra high-speed ocean-going vessels throughfundamental studies and tests. The term of the program is for fiveyears, within which many technical difficulties should be overcome,including the scale model tests in the real seas in the last year of theprogram. Success of the program can lead to actual shipbuilding by theabove major shipbuilders in the near future.

Prospects

lVvhen the Techno-Superliner makes her debut and is put tocommercial use, it will be able to enhance the function of shippingbecause of its regular service at ultra high speed. The distance betweenJapan and China or Southeast Asia wiH be covered in a one- or two-day voyage. ln this way, the progress of marine science and technologypromises us, Japan and the Southeast Asian countries, a prosperousfuture in the corning twenty-first century.

485

DISCUSSION

Hideo Tai4rbayashi: We would like to entertain questions frorrL >efloor.

Sang-myon Nhee: I was impressed with the informative presentatio>by Mrs. Du concerning Chinese strategies in the development of theEEZ. As she stated, China does not have an exclusive economic zoneand will declare an EEZ at an appropriate time. When would that be~

The theme of this conference is international cooperation, and manyscholars have presented their views. Certainly there are many phrasesin the Law of the Sea Convention that relate to international coopera-tion, but how do we achieve it? Professor Shearer referred briefly topac'turn de contrahendo and pactum de negotiando. We can approachthe achievement of international cooperation through a series ofstages, from agreement to discuss, agreement to negotiate, agreementto agree pactum de contrahendo!, agreement to cooperate, to, finally,agreement to act together. But among those various levels, agreementto cooperate is a very hazy idea, an expression of intent; without theexact meaning of cooperation it is difficult to act. So the words inter-national cooperation shouM be interpreted in some context in an artickeof an international convention or even in some passage of writing. It

important to improve the applicability of the principle of interna-tional cooperation.

BHmt Dac When is the appropriate time for the Promulgation ofChina's EEZ? We have done a lot of preparatory work and, though Icannot speak of the exact date, I think maybe in a couple of years-First, we will promulgate the territorial law and then the law of theEEZ.

Another question of international cooperation arises in the develop-ment of living resources in the EEZ and in the high seas. I think wehave two serious problems. One is the decline of living resources iathe EEZ, especially in the coastal zone, from unreasonable overfish-'ng. Another problem is the pollution of the fishing zone, againespecially in the coastal zone, from oil exploitation activities. It isimportant for all of us to discuss with each other the conservation Gfthe ecological system in this area.

I also would like to say that neighboring countries should cooperateto solve common problems in marine technology, especially in the highseas.

Ermeces Lar'. In the past few days many people have mentioned variousmeans of cooperation in a specialized or technical way, but today Iwant to share with you another aspect of cooperation in this geograph-ical region. In the Asia-Pacific region we have a lot of academic co-operation, exchange of views among different countries. For example,in Southeast Asia, Indonesia as the largest archipelagic country has twocenters concerning the law of the sea. The Archipelagic Law and De-velopment Center not only promotes the domestic development of lawand cooperation on the law of the sea but takes the lead in coordinat-ing and stimulating cooperation among countries in the region. Dr.Etty Agoes can give us more details. SEAPGL, Southeast Asia Programof Ocean Law, has been supported by the Canadian IDRC for the pastten years. Professor Johnston is one of the original organizers anddesigners of that program.

I would also like to introduce the baby of cooperation, the PacificRegion and International Law Conference Series, PRIL for short. Itwas established in 1988 by a group of individuals with particularexpertise and interest in international law as it relates especially to theAsian-Pacific region. Its purpose is to provide a regular forum foracademic discussion and exchange of information that emphasizes andpromotes the role of international law from an Asian-Pacific perspec-tive. PRIL's first preparatory meeting was held in Peking Universityin China and its inaugural meeting in Fukuoka, Japan, organized byKyushu University and Professor Takabayashi. The second meetingwill be held at Melbourne University next month. Since it is relativelyunknown to many experts in the field, I take this opportunity tointroduce it. All of you are welcome to join, and we shall keep youinformed of the future conferences and the details of that kind of veryunstructured cooperation.

Edwerd Miles: Had Francisco been here I would have addressed acouple of questions to him, but I'd like to say for the record anywaythat the major successes we have seen in salmon aquaculture ia theAtlantic and the Pacific haven't come without costs. At a meeting inthe Soviet Union in 1979 or so, I recall that the various countries inthe North Pacific elaborated their plans for salmon aquaculture and,in the opinion of my senior colleague Loren Donaldson at theUniversity of Washington, the total amount of salmon these countriesintend to produce exceeds the carrying capacity of the near-shoreenvironment of the North Pacific. The way these decisions are madeon ihe basis of individual firms or countries or cooperatively betweenfirms and states does not allow this kind of question to be addressed.

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We are fast approaching the day, given the level of success we have'been achieving on both sides of the North Pacific, when we mustapproach this issue. It can be done only within a larger framework forcooperation which does not yet exist.

The second problem is one of increasing urgency and also dern~43wider regional cooperation than we have yet been able to achieve. Thisis poaching, illegal fishing. As more and more salmon are producedand the states of origin seek to use Article 66 to secure their interostsand investments, others who have not made this investment fin4 i4easier to partake of the benefits on the high seas. While the Conven-tion gives to the state of origin the authority to manage these resourc-es, the Convention also says explicitly that there shall be no enforce-ment on the high seas without the consent of the flag state. I think t~iscreates an impossible situation and one which invites a very severe'coastal state response. So far the United States response has been veryrestrained � U.S. fishermen think excessively so -- but the Sovietresponse has not been so restrained. Soviets have in the last few yearsacted repeatedly on the high seas against vessels engaged in what theyconsider to be illegal taking of salmon. We have a growing proble~here that needs to be dealt with and that can only be resolved in sLcooperative context, but that context, as in the other managemontprogram, does not now exist.

The other point is a question to Guillermo. Yes, there will be boatsavailable at discounted prices in the Eastern Tropical Pacific, but mhyshould Pacific island states seek to acquire these boats when no marketarrangements come along with them7 As you point out, control overthe markets is a severe bottleneck, so under that condition theacquisition of these boats at discounted prices may be a trap.

GmHermo Gowns: It is a tricky question. While I see the risk of buyingthose vessels and not finding any markets, I think there are two sidesto the issue. If island nations acquire these, say, Mexican vessels andat the same time negotiate an agreement with the U.S. to allow' forU.S. vessels to come and fish in their waters, there is no reason in anymind why the island nations may not subject that access to accessinsof their own fish into the market. In other words, island nations couldeven purchase canned tuna from Mexico and then subject the accessfor U,S. vessels into the EEZs to the purchase of canned tuna fromthem. Whether this would fly or whether they would be better off todo this than simply to grant access under the current agreement is hardto say at this time. But if markets are becoming more controlled and

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more restricted by distant water nations, perhaps the island nati~+>can take a stiffer position as they try to gain access to the market.

Harold Spare@ I would like to ask Dr, Gomez and Dr. Du some que,,>tions. I have heard two different opinions expressed here, one fry~representatives of distant water states, complaining about fishi~+below the maximum sustainable yield and leaving fish on the tagIOthat should or could be taken. Then I have heard from representative.of mid-ocean archipelagic states who say they face an unfair disadvantage as micro-states in any type of regional fishing authority thiefwould allocate fish within the EEZs. What should be the way of m~naging the tuna fisheries in that we have to take within the EEZ a~dwe have to take on the high seas2

In one of our earlier meetings a representative of a distant wage,rfishing state maintained that the arbitrary tonnages allocated wit/i~the EEZs as conservation measures often times were a ruse. I ha~eheard coastal states express concern here that the take on the high se~is both a conservation and a market concern, precluding their entranceinto markets. One way of handling this problem is through regioaaIcompacts with enforcement competence. The U.S. is alone among sajmon-spawning states in saying that it not only has the authority overits salmon beyond the 200 n.m. zone, but has the right to enforce uni-laterally that authority. The Soviets have not claimed that authoritybut they have exercised it, as Professor Miles just said. So the secondquestion has to do with enforcement on the high seas in order to assistcoastal states in developing a conservation regime and in benefittingfrom the market.

Qullermo Gomez: What can be done to manage tuna, both in the KEZand beyond in the high seas, is a $64,000 question. In the WesteraPacific, there appears to be no specific need to establish quotas at thistime since the resource, primarily skipjack, seems to be abundant.There is some concern for the yellowfin fishery and the effects of thegillnets and driftnets, as we discussed thoroughly in the conference.In the Eastern Pacific, the later-American Tropical Tuna Commissioa,which was created in l949, established a quota from 1966 to 1979 foryellowfin tuna. They would provide a recommendation to membercountries which would adopt and abide by it. Since l979 the fisheryhas been operating on unrestricted fishing, and although the IATTCcontinued to conduct studies and sometimes provide recornmendatioas,countries no longer abide by those reguhtions.

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Parallel to the efforts of the IATCC which, by the way, is astructure perhaps not compatible with the Law of the Sea Conventionsince it has not evolved into an Article 64 type of organization! otherefforts have been promoted to manage tunas in the Eastern Pacific.Specifically, the CPPS, the Permanent Commission of the SoothPacific, and an organization called OLDEPESCA, Latin AmericaaFisheries Development Organization, have attempted to establish anew convention for the management of tunas whereby the coastalstates will have a say in what happens in their EKZs. Through theinternational organization they would regulate fishing in the high seas.The convention has not yet come into force -- only two countries.Ecuador and Mexico, have signed and ratified it. The main problemis: How do you deal with distant water fishing nations that are notcoastal states in the region, but that are significant players in &ecatching of tuna on the high seas? There is no clear answer in thisconvention either. Since neither IATTC nor the convention promotedby the Latin American coastal states deals with the issue very much,in the Eastern Pacific the new organization for the management oftuna is still up for grabs.

The second question on enforcement on the high seas is associatedwith this first question. If you cannot deal with what happens in theEEZs, it will be very difficult to deal with the problem in the highseas.

Grucic Eaeg, Just a few comments on Mr. Gomez's paper. I hope si-lence on other matters doesn't imply acquiescence in this context-There is some truth in his assertion that jurisdictional claims by ishmcinations are still contested by major distant water fishing nations, Hespecifies Japan and the United States, but in fact intergovernmentalagreemene have been signed since the late 1970s between Japan aalucertain Pacific island states such as New Zealand, Australia, KiribathSolomon Islands, and the Marshall Islands which explicitly recognizethe juriSdictional Claim. SOme pf the early American TunabOat ASSO-ciation ATA! agreements with respect to Micronesia did so as well-The U.S. treaty with certain Pacific island states can only be under-stood as a recognition of the jurisdictional claim, albeit implicitly.

The assertion that the Western Pacific tuna fishery is not subject ~~any biOlOgiCal Or eCOnomiC management measurIS applied On aregional or national basis is misleading. As Mr. Gomez acknowledgesthere is no biological need to manage skipjack and only some concernfor yellowfin. The stocks are in relatively good biological conditioa.There have, however, been consultations for some years on catchy

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quotas for bluefin tuna amongst Australia, New Zealand, and japan.Recent concerns with declining catches and the projected move to thewestern Pacific by other distant water fishing nation vessels, as hehimself acknowledges, have led to agreement amongst certain Pacificisland states with contiguous zones to limit purse seine vessel numbersboth on biological and economic grounds. The assertion that management measures, with ihe possible exception of the Regional Registerfor foreign fishing vessels, are beyond the scope of the ForumFisheries Agency is a bit mystifying.

Mr. Gomez also asserts that island states make unilateral management decisions over tuna found in their respective zones. The impli-cation seems to be that the decisions are not reached through regionalcooperation. In fact, there's a very high degree of regional cooperationalbeit with a high degree of national implementation. The ForumFisheries Agency is a very small agency; it has some eighteen staff atprofessional level, providing computing, legal, economic, research,and fisheries development assistance to member countries. It plays aninformative role, it initiates consideration of policy issues, and itadministers the U.S. treaty in addition to the Regionai Register,There's been a very exciting development in recent months in thatcertain of our member countries are now looking to other membercountries for zones of preferential access.

Quilkrmo Gomez: Thank you very much for your abundant commentson the paper. Perhaps some statements in the paper were misleading.Eadeed, I didn't mean to say that the island nations do not exercise anymanagement. Their coordinated policy towards granting access isperhaps one of the single most important management decisions theyhave made. I meant to say that the FFA does not specifically have anymandate to regulate what happens in any other country's KKZ, butrather it is up to the coastal state to decide. On the other hand, I ampleased to hear that certain coastal states were looking with interest atthe possibility that other non-traditional players would come in to fishin their waters and would cooperate in their development.

Foskiaki Matstafe In terms of North-South issues, the confrontationbetween North and South has been overwhelmingly discussed. A moreimportant thing, however, is the real cooperation between North andSouth which is the key to fisheries development everywhere and ourdeep concern. For example, the Official Development Assistance ODA! money has not always been wisely used. An increase in theODA money does not always guarantee a proportional increase in

49 l

quality of the project. The expectations for advances in fisheries i+developing countries have not taken into account the constraints ~'fhuman abilities. Sustained fisheries development depends on basicconditions supply and demand, environmental suitability, tech»~capability, legality, experience, and quality of leadership!, inf rastruc-ture, and short term economic feasibility. Until the industry reach~the "take-off" stage, fisheries development is a slow, step-by-stePprocess. Elimination of any one of the limiting factors will contributeto this growth, but not much. Nevertheless, the best way to develoPfisheries is to eliminate the limiting factors one by one. Both recipientand donor countries are responsible for the past failures. They mustopenly review the past performance and reconsider the futur6strategies. So I would like to hear about these kinds of things.

Guinernto Gomez. It seems to me that since the implementation of the200-mile zones, there has not been too much in the way of North-South cooperation, at least in the major commercial fisheries. In»ghlyvaluable fisheries such as shrimp and tuna -- I would say salmonalthough we just discussed some technology transfer that has takenplace and I think that is perhaps mis!eading! -- there has not been toomuch cooperation. As markets in the North continue to gro~ formajor species, I would envision that more cooperation would developbetween North and South. But I also see South-South cooperationdeveloping, perhaps not at the pace that would be desirable in eitherdirection.

Hidee T~~yaskr. From the chair I would like to ask Mr. Fujinamito comment on international cooperation in the Asia-Pacific region.

None Esjieamr', As special advisor to the Minister of Agriculture,Forestry, and Fisheries, my main business is fisheries access negotia-tion. I have often sat together with Professor Miles, in the same roombut on the opposite side of the negotiation table. In many other cases.we have been on the same board to discuss international cooperation.Now at the very end of this extremely meaningful meeting, I wish tosay that the only thing that is vitally needed to achieve the intendedaim of UNCLOS is international cooperation, although some partici-pants have expressed a pessimistic view based on poor treatment in thepast, Through four days' discussions, we have realized that manyaspects of the ecosystem of various living resources of the sea are stillunknown, as demonstrated in the discussions of straddling stocks inthe Bering Sea, whales, and the driftnet operations in the South

492

Pacific. There is a conflict of views on the exploitation of mine~.The problems we face are not easy, but the only solution is inter~ational cooperation in good faith, and I sincerely hope that with geewisdom of human beings we can achieve such cooperation. We shovel~avoid unilateral decisions, which are often dangerous. In this conn~<tion I appreciate the efforts undertaken in the conferences of the Lls~of the Sea Institute in the past, and I hope that the Institute ~I>further contribute to the very important aim of UNCLOS to establishthe order of navigation of the sea and the optimum utilization zgmarine resources for the benefit not only of our generation, but Isis>for future generations.

Jeei Nadraiwier. I just wish to make some observations on one aspe~~of Admiral Hays' paper regarding the issue of technology in the SoutgPacific, First, there are no windmills in the South Pacific. Second, th~reference to rusting relics of technology is more appropriate tp themilitary hardware of the Japanese and Americans from World War Igscattered throughout the Pacific. Seriously, though, the adoption gfnew technology is sometimes ill-suited to the needs of South Pacificcountries. For example, it is often not feasible for one to havesophisticated new medical equipment because one lacks the facili f jegfor maintenance. More important, where resources are scarce one hasto consider the provision of services that benefit a wide cross-sectionof the community. It is a question of priorities that is not easy tadetermine. The adoption of new technologies may on occasion help thedonor rather than the recipient by way of providing a market for itsconsultants and its technological service industry.

lsufraei L,utchsuvc I have a question for Mr. Gomez. My organization.The World Wide Fund for Nature, is one of the groups that has beenpressuring the U.S. -- for instance, stockers -- to stop buying the tunacaught by purse seining. Can you comment on the methods that wi]lbe used by the countries that intend to buy used vessels? And what isthe alternative method that the U.S., or the fleets that the U.S. hasbeen buying tuna from, plan to use?

Gaillermo Gomez: Tuna fishing with dolphins is specific to the EasternPacific Ocean. Ia that fishery, Mexico, Venezuela, and the UnitedStates are the primary harvesters with this method. When I say thatthese vessels may be able to deploy to other areas I'm thinking of theWestern Pacific where tuna is not caught in association with dolphinsbut rather with payaos, which are fish-aggregating devices. There is

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no harm to dolphins in the Western Pacific as far as evidence shoce s ow$.The fishery in the Eastern Pacific will continue to be important y< '~ b aim caught near logs or other floating object, though the fgh~ smaller and therefore their market value h le~- In the end. m0$tpu~ Seining On dOlphins will have tO b Curt i!ed, and the Couat,that are using these methods will adapt to the new circumstances th tare created by environmental concerns.

BANQUET SPEECH

THE COMPLETION OF THE WORK OF THE PREPARATORYCOMMISSION AND THE UNIVERSALITY

OF THE CONVENTION

Ambassador Jose Luis JesusPreparatory Commission for the Seabed Authority

and for the Law of the Sea TribunalUnited Nations

Ladies and Gentlemen, I would like to take this opportunity to thankthe Law of the Sea Institute for having extended to me the invitationto participate in this meeting. I am pleased and honored for havingthis opportunity to address this distinguished gathering today.

Over the years that I have been privileged to serve as Chairman ofthe PrepCom, I have been extremely concerned with the outcome ofthe Commission's work. From the time I assumed my present leader-ship responsibilities, I have been aware that the successful implemen-tation of the Commission's mandate can only be possible if we are ableto find a solution to the existing problems saddling the Convention'sseabed regime.

This means that the work of the Commission is inextricably linkedto, and in fact includes, the search for a solution to the difficultiesposed by the seabed provisions, that is to say, a solution that couldpromote the universality of the Convention.

I felt it therefore appropriate, at the Law of the Sea Institute'srequest, to address this meeting on the issue of "The Completion of theWork of the Preparatory Commission and the Universality of the 1982Law of the Sea Convention."

It is in this context that I am delighted and, indeed, thankful, tohave this opportunity to share with you some ideas that might helpbring about a now long overdue solution to the existing difficulties.

These ideas have already been made public in a speech that I deliv-ered two weeks ago at a symposium held in Kiel, West Germany.While repeating them today, I will nonetheless attempt to present themto you with the flavor of some new details, to broaden our collectiveawareness.

I am deeply convinced that the problems with the InternationalSeabed Regime, if not addressed in due time, have, in the long run,the potential of becoming a destabilizing factor to the legal bindingeffect of the Convention when it comes into force and its role as apoint of reference for national legislation and policies.

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1 h»e no poult tnat, as il nm Ucc:as nagIiiy eiiipnmlzeg in the cpuof our proceedings here, we all agree that it would be a great lpss@da dangerous development if that were allowed to happen, for theCpnvention is a monumental landmark of the United Nations effort,to codify and develop international law and embodies major achievement in est blishing a balance of interest of all natio~ ln thepeaceful use and exploitation of the oceans' resources.

Today, we find ourselves in the difficult situation of having tp +our utmost to salvage those achievements, and yet any such effprt wilInpt succeed unless we find a solution for the problems saddling tl,~seabed regime. Fortunately, 1 am glad to note that there is today nwidely shared view -- which is also prevalent in the PrepCon - typalthe time has coIDe for us to address the problems of Part Xl, .it/ aview to finding a solution that can facilitate universal adherence tp tg~Convention.

The question that must then be posed is how best the problems Dfthe Convention's seabed regime can be addressed at the present tijngwith a view to preserving the important achievements related tp Qytraditional uses contained in it and, at the same time, securing itsuniversal acceptance.

The answer to this question brings me to analyze the issue of statesunilateral activities under the high seas freedoms versus an improvedinternational seabed regime as two different and opposite approachesthat have been presented as a possible way out.

Since all Nations seem to, unanimously, support the Conventionother than its Part Xl, some politicians and scholars have beenadvocating a s~eeping formula to salvage the achievements of theConvention based on a two-track approach: First -- States should, iathe absence of a unanimously agreed seabed regime, have the right toresort to unilateral activities in the seabed area beyond natipaaljurisdiction under the rules and principles of the High Seas. Seeped,it is not necemtry for States to become parties to the Conventipabecame the so called "tr3ditional uses of the seas covered by theConvention are, in their view, considered today general interaatiprnllaw.

This approach, that fortunately seems to command no major suP-port, is perhaps the one that, if followed by major industrializedcountries, would militate against the integrity and the npw muchsought universal support for the Convention, fpr it vvoutd make <4Convention itself redunduu. Many arguments can be adduced tp dis-courage the course proposed by this approach, Allow me address >tleast two comments to it.

49$

the common heritage principle, the larger shelf States would benefitfrom a continental shelf larger than the majority of the coastal States,without being obliged to share the resources of the extended shelf withthe Authority, as mandated in Article S2.

I, therefore, think that this approach would seriously disrupt thedelicate balance achieved in the Convention. It is because we are allinterested in safeguarding that balance and working towards thecreation of conditions to promote the universal acceptance of theConvention, that efforts should be made to assure that such anapproach never becomes a valid alternative to the seabed regime-

In my view, the solutions for Part XI's problems lie in a differentapproach. If we are to preserve the important achievements containedin the Convention, we should then concentrate our efforts onimproving the existing provisions of the seabed regime with a view tofinding a suitable accommodation for the problems that the UnitedStates and other industrialized countries have, for, I believe, there isno viable alternative fo the international regime other than a¹ improvedinternational regime.

And this brings me to the issues related to the search for»improved international regime, namely the framework, the questionto be considered, the timing, and the format of the accommodationsto be made.

0¹ the isle of framework of negotiationsIf, on the one hand, the approach of addressing specific provisions

as a way of solving the seabed regime's problems seems, and rightlyso, to command overwhelming support, on the other hand, there seemto be some misgivings and, to a certain extent, some confusion, as towhat should be the proper framework to address the issues. In thisregard, two main trends appear to have emerged:

l! one that would like to seek those changes outside of, and withthe exclusion of, the framework provided by the Preparatory Commis-sion Pre pcom!; and

�! the other that maintains that the proper framework would ratherbe negotiations inside the Preparatory Commission or undertaken withsome form of connection with it.

My first observation to this question of the appropriate forum is thatthere are many ways of achieving the same result. The forum in whichthis accommodation is to be made seems not to be of much relevance,if in the end consensus is achieved on the accommodation to be made.

Nonetheless, I would like, at this stage, to share with you some ofmy perceptions as to the merits of these two different trends. Let us

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begin with the view in accordance with which change should bsought outside of, and with the exclusion of, the framework providentby the PrepCom,

This trend appears to be predicated on the assumption that tg+Prepcom has no mandate to change the Convention and therefore >fany meaningful accommodation is to be made, it should be done in +new and different setting. To this argument, I have this to say: If thL+PrepCorn in whose work all l59 States signatories of the Conventio,+are entitled to participate as full members! lacks a mandate to rnak+those accommodations, which institutional body or framework wouldhave a better mandate? In my view, that institutional body with gbetter mandate than the PrepCom could only be UNCLOS IV.

Such a possibility of convening UNCLOS IV or an equivalentframework to deal with the issues of Part XI seems to raise the sa~+risks and pose the same threats to the integrity of the Convention tLsdoes the approach of unilateral activities that I commented u~r,earlier. I see in such a possibility two main areas of concern, ortspolitical, the other legal. Politically, it seems that it would be next t>impossible to have the whole international community agree on th~convening of UNCLOS IV or equivalent structure only to addres3problems pertaining to Part XI. We all know that many countrjoawould welcome this opportunity to renegotiate provisions of thoConvention related to navigational issues, maritime boundaries,jurisdiction allocation, etc. Such a disruptive possibility, obviously, ianot supported by the overwhelming majority of nations, including theU.S., that, apart form Part XI, would like to see the Conventionuntouched. Even if, for a miraculous reason, the political concernwere not to be raised, we would face a legal entanglernent the effectsof which would create further legal uncertainties, thus delaying theprocess of promoting the Convention's universal acceptance.

I happen to share the feeling of those who are of the view that thebetter, less risky, and more pragmatic way of tackling the seabedproblems -- at least before the entry into force of the Convention--would be to address them within the framework of the Prepcom or inan informal setting with links with it.

This feeling is based upon two main points: I! To address the seabed regime difficulties within or in connection

with the framework provided by the PrepCom would, in my view,eliminate any possibility of reopening consideration on any issue otherthan Part XI to the extent that the Commission is concerned only withthat part and the Tribunal issues.

In fact, apart from the ideological warfare of the North/South con-frontation that made it impossible for the Conference to be willing 4a

t ing at iQ Qs[ $Lif$tq 54'QVllllllVV4LJVH l Vk I! j'0 PElllCil LL;4!i QQgcerns in t

seabed regime, there was a strong factor that militated against the reopening pf the negotiations on the ~abed provisions- That factor wethe fear that many delegations had that the renegotiations of some seabed provisions could, by sympathy, bring about a series of claims fprrenegotiations on other parts of the then draft convention.

Such a possibility, as I have previously stated, was not accepted bthe overwhelming majority of nations for they were firmly against thereopening of negotiations in areas that represented major achievements.

This fear would surely not exist if negotiations were to be tacklegin the context or within the framework of the Preparatory Commission.

�! As I have stated on many occasions, it is my well-consideregviewpoint, based on Resolution I, that the PrepCom does have Itmandate to take any constructive step or measure to help the Interna-tional Authority function effectively.

Provided that the fundamental norms and principles an example pfwhich can be gathered in Article 155, paragraph 2! upon which liesthe international seabed regime, are preserved, the PrepCom is man-dated to make the necessary arrangements to revitalize provisions thatwere rendered obsolete by the changing circumstances, to ensure thatthe Authority will be functioning upon the entry into force of theConvention.

It is this same spirit and constructive approach that presided overthe negotiations and adjustments which made the registration of thepioneer investors possible. Would anyone today question the mandateof the PrepCom to have inade the adjustments of 1986 to importantprovisions of Resolution II rendered obsolete by the changing cir-cumstances? I do not think so! Because the alternative would havebeen to render the pioneer system of Resolution II totally unimple-mentable. The same can be said with respect to Part XI. The alterna-tive to adjustment would be to render it unimplementable. Havingexpressed some ideas on the important issue of the framework fornegotiations, allow me now to turn to the substantial issues to bereconsidered. Our attitude of seeing the Convention as a documeiitthat should be preserved and cherished created a mythical aura aroundit that has prevented us from cpnsidering the merits of the difficultiesposed in Part XI.

I submit that we have to get away from that myth in order to be abletp look objectively into the existing problems. It is pn the basis of thi>objectivity that I dare to say that most pf the difficulties that havebeen identified in Part XI are not really a North/South issue as it >as

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been portrayed I believe that industrialized countr'escoun ries, as well as developing nations, have the same interest in having all thving & t e mst~tutipnscreated by the Convention functioning on a cost-efficient basis, andpperafing on the basis of sound financial management.

I also believe that all nations would like tp see an I t t' alp see an nternatipnalAuthority that could be a viable institution, viable in the sense ofaccomplishing the goals for which it was created and viable also in thesense pf generating resources that could be shared among all nations.An International Authority whose operation is due to create, insteadpf resources for countries, heavy financial obligations for States,wpuld not certainly command the support of any nation, especiallythpse overburdened by financial and economic problems.

In the end, what matters the most is that the resources of the com-mon heritage of mankind be exploited in such a way as to generate thehighest income possible for the benef it of all States. This is what Ithink tp be the ground rule governing the exploitation of the seabedrespurces by the future International Seabed Authority. It is in thisframework that in a very preliminary way I will offer the followingcomments on some of the issues.

ON the entry into force o j amendments to Parf XlQn this issue, two main concerns were raised by the U.S.:�! The agreed system of amendments to the seabed regime would

run counter to the fundamental norms of the U,S. Constitution, sinceit provides for the possibility of imposing amendments on the UnitedStates without their being accepted by the competent U.S. constitu-tional body.

�! It would create uncertainty for the operators who would like tobe assured that the terms of their contracts would not be left to thewhims of the changes to the system.

As I believe the second point is already taken into consideration inParagraph 5 of Article 155, the first one is a legitimate concern thatI am sure all of us share, because, to the best of my knowledge, everynation's constitution upholds the principle in accordance with whichno international obligation of a conventional nature should be imposedon the State unless by means of an express act of the competentconstitutional organ of the State concerned.

Because it is a legal concern that we all share, then it really becomesa non-issue. I am therefore sure that we will find a way to circumventthis problem.

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Oe decision-makingThe issue of decision-making is perhaps the most difficu1t and

intractable one, due to the political overtones it has and the spi l-overeffect it might have in setting precedents for other internationalorganizations.

In addition to the United States' suggested change to the decisionmaking in the Council, proposals have been tabled in the I'repCorn tointroduce changes to the decision-making procedure of the Assembly,as well.

In the case of the Assembly, as I understand it, the suggested changein the decision-making procedure was prompted by the concern thatthe "automatic majority" would take decisions that might havefinancial implications the substantial percentage of which would beborne by major contributors to the budget of the Authority even ifthese major contributors were to be against those decisions.

In trying to find a solution to this concern, the PrepCam hasconcentrated its efforts on two areas:

�! As has already been agreed, any decision which bears financialimplications should be preceded by a statement of financial implica-tions to be submitted by the Secretary-General and the Assembly shalltake into account the estimate before adopting any proposal involvingexpenditure from the Authority's funds.

�! The approval of the budget of the Authority is entrusted by theConvention to the Assembly. In accordance with our current consulta.-tions on the Finance Committee, this body would be entrusted withthe important function of advising the Council and the Assembly onthe budget.

Although formal decisions on the approval of the budget are to betaken by the Assembly, the decision-building role in the budgetingprocess is going to be played first and foremost by the FinanceCommittee.

Therefore, it becomes more germane to concentrate our efforts anthe ongoing negotiations to address the issue of decision-making in theFinance Committee in such a way as to dilute the concern of the majorcontributors, thus rendering unnecessary any quest for change in theAssembly's existing decision-making procedure.

As far as the suggested change in the Council's decision-makingprocedure is concerned, I believe that most of its functions, at leastthe most important ones, are to be exercised upon recommendationsto be made by the Legal and Technical Commission.

One of these important functions is the approval of plans of workwhich will be decided on recommendation of the Legal and TechnicalCommission. Here again, the emphasis of decision-making should be

shifted from the Council to the Legal and Technical Commissiprwhich might become the most important body in the proces3 g fapproval of contracts.

Since the decision-making process in the Legal and Technic~Commission was left to the PrepCom to resolve, I think we have a+important opportunity here to address somewhat the concerns that Iegto the suggested change to the decision-making in the Council,

On the issue of representation and seats in permanence, it is ~ybelief that there will not be major difficulties in accommodating tgzU.S. position in granting them a permanent seat in the Council. I+fact, in my view that issue is already addressed in Article 151 i+accordance with which the U.S. qualifies for membership on mQQygrounds, including as one of the largest investors in the seabed and tLsa major consumer.

The issue here seems to be more one of how to implement ArticIg161 rather than how to change it. I am sure that the PrepCom wogIdnot have difficulties in making the recommendation that the U.S. bzgranted a seat in the Council, due to its manifold qualifications as ~candidate for membership in that body. At the same time, to strengthen such a recommendation, efforts are being made in the ongpi~gconsultations on the composition of the Legal and Technical Commission to ensure the membership of experts nominated by the largestinvestors and major consumers.

Similar consideration is being given to the composition of tb~Finance Committee, where we have retained the major contributors ~a criterion to be taken into account in that composition,

On the costs of inslilutiomd arrangemenlsThe PrepCom has already indicated that it is for a lean and

cost-efficient Authority. Such a decision becomes important becauseit gives assurance to all nations that the structure of the Authority wilibe developed as the needs require and in accordance with the financialcapacity of member States. The industrialized countries should beaware that developing nations are the first ones interested in avoidiagwaste and unnecessary structures.

On the other hand, we might even explore the possibilities of de-creasing the financial burden for States parties to finance the firstmining operation of the Enterprise, since for many States the financialobligations with the funding of the Enterprise might become unbear-able. This is more so if we consider the escalation of costs that ha~aincreased the projections for an integrated mining operation tp theamount of U.S,! $2 billion. It goes without saying that such. aprojection in ten years from now will probably be doubled.

50$

This leads me to believe that we might consider seriously the ]p;ntventures arrangement with the Enterprise or any other pperatjpnalpossibility that might relieve States parties from the heavy financi>lobligations that for many, I am sure, would become unbearable

At the ismt of timingWe should take advantage of the remaining period before the enpy

into force of the Convention to address the issues the sofutipn pfwhich is fundamental to rally the overwhelming adherence to theConvention, especially on the part of the industrialized countries lmy view, the issues that have to be addressed before the Convention sentry into force are more or fess those that I have outlined and arerelated to the institutional aspect of the deep seabed regime.

Other issues like the compulsory transfer of technology, the prpduction ceiling, and related matters of the mining code � that is tp spythe issues that are related to the operational aspect of that regimeshould be addressed after the entry into force of the Convention pn th~basis of a set of ground rules to be agreed upon in the light, ampngothers, of the issues outlined in Article I 55, paragraph 2, since exploi-tation seems to be postponed for many years, and the circumstancesupon which those matters depend seem to change year after year.

The problems that we face today in Part XI were born out of as-sumptions made in past negotiations that only years later have provento be at odds with today's realities. We should, therefore, learn the les-son and exert restraint in attempting to find solutions today for a sea-bed mining system on the basis of assumptions that might, most likely,prove to be in contradiction with the facts and realities of tomorrow'sworld.

Ladies and Gentlemen, all that I said before could be translated intoa final agreement to solve the impasse that over the years has beencasting a shadow on the future of the Convention and on the work ofthe PrepCom. In attempting to anticipate the formulation of such anagreement, let me, in general terms, outline what I think could be itsformat, as well as its content.

On the format, I believe that we should concentrate our attentionfirst and foremost on the accommodation that needs to be found. Onc<agreement is reached on the issues, the question of format that wpu14embody such an agreement appears not to be of fundamental impor-tance. I would like, nonetheless, to dwell for some time on the possibleways to address the problem of format, since this issue seems tp holdsome importance for some people. The informal discussion on thisquestion seems to have developed two trends:

�! One that appeals to the practice of the PrepCom in the adoptionpf substantial agreements through "Statements of Understanding.Those acquainted with the wprk of the Commission are very muchaware of this interesting practice of adoption of statements of under-standing in the context of the implementation of the pioneer system.These understandings have proven to be a solid and secure procedureused to introduce major change to Resolution II in order to circumventdifficulties raised by the changing circumstances. Some believe thatthe same procedure should properly embody a new accommodationthat might be made to solve the difficulties with Part Xl.

�! The other trend maintains that the statements of understanding,as used in the practice of the Commission, lack binding legal effect.Since this may hamper the internal process of ratification of theCpnvention for some states, a more formal and "visible" format shouldbe devised to incorporate the accommodations, which couM be subjectto ratification at the same time as the Convention.

While such a trend should ensure more legal certainty, the require-inent for its ratification seems to raise practical difficulties, since itwould be subject also to ratification by those many States that have sofar ratified the Convention. Such a procedure, if followed, would un-doubtedly delay, for many years, the entering into force of the Con-vention and therefore hamper the efforts towards the universality ofthe Convention.

I believe that the question of format should take into account twomain aspects: one that would guarantee the legal binding effect of sucha format and one that would avoid a procedure, the practical aspect ofwhich may delay, for many years, the entering into force of theConvention.

Certainly there are inany ways of reaching such a result, Let me,however, for the sake of stimulating our collective imagination,suggest the foHowing possibility that would take account of those two

pects The adoption of a protocol or any other visible legalinstrument that, instead of purporting formally to change the text othe Convention, would, rather, embody a universal interpretation inaccordance with which States agree that the ratification or accessionto the Convention is to be subject to such an interpretation.This legal instrument would enter into force through a simplified

procedure that could be the adoption of it or adoption followed bysignature. Such format, it appears to me, would a o«d allow us to circumvent

the practical, legal, and political difficulties that formal amendmentsto the Convention seem to raise at this stage. It o. I would at the same time

be a legal instrument totally consistent with thehe Convention itself, inthe light of Article 311, paragraph 3, that establishes that States parties

507

may conclude agreements suspending the operation of provisions pfthe Convention.

As far as the content of the agreement is concerned, I think thereare issues of substance and issues of a procedural nature to bconsidered, as well.

As to the issues of substance, it should appear to me that gagreement could attempt to find a solution on the following quest'o

l!�!�!

On the procedural aspect of the agreement, the accommodation tobe reached might have to include, inter alia, the following:

508

Decision-making;A permanent seat on the council for the U.S.,The level of financial obligations to be incurred with thefunctioning of a scaled-down version of the Authority;

�! The size, as well as the residua> interim functions of theAuthority;

�! The postponement to a future date of the consideration Ofsubstantive issues related to the mining code and to the opera-tional modalities of the Enterprise;

�! The assurance that no exploitation will ever take place untilimprovements are introduced to the Convention's seabed regimeand the mining code is agreed upon in accordance with negotia-tions to be carried out in due time, on the basis of consensus;

�! The assurance that the improvements to be introduced in theseabed provisions can relate to any issue or matter, with theexception of those matters mentioned in Article l55, paragraph2;

8! The assurance that the process of negotiations to be undertakenin the future to introduce the corrections to the Convention's

seabed regime wiB have to maintain, amongst others, thefollowing principles: a! The principle of the common heritage of mankind; b! The equitable exploitation of the resources of the Area for

the benefit of all countries; c! The existence of the Authority to organize, conduct a«

control activities in the Area; d! The excision of national claims on the exercise of sover-

eignty over any part of the Area; e! The prevention of monopolization of activities in the Area; f! The use of the Area exclusively for peaceful purposes.

A trigger that would signal the need to start the negotiations tointroduce the corrections to the seabed regime and, subsequent-ly, the resumption of the negotiations an the mining cade. Sucha trigger could be an agreed date, or based on an event thatmight happen in the future or even a combination of both;The body or organ of the Authority that should be called uponor the forum that should be convened ta consider the correctionsto the seabed regime; andAn agreed periodicity for meetings if any! of the organs af theAuthority, namely, the Assembly and the Council, taking intoaccount that these organs in the interim period will have onlysome residual functions to perform and account also being takenof the need for financial restraint.

�!

�!

s09

In conclusion, these are, at this stage, same af my ideas of what maybe the issues to be tackled and the approach that might be fallowed tosecure the universality of the Convention. I think that today there isan ample awareness of the importance of the Convention as a wholefor all nations and, therefore, there is also ample acceptance of theidea that accommodation should be made to the Seabed Regime tosecure the participation of all the industrialized countries, includingthe United States. Without the overwhelming participation of countriesin the Convention, the future of the Convention's regime related tothe so-called "traditional uses" might be in serious jeopardy.

I believe we all share the same interest in avoiding such a great loss,Let us hope, therefore, that action is taken in due time ta achieve thegoal of universality. Thank yau for your attention,

LIST OF PARTICIPANTS

Etty R. Agoesndonesian Center for the

Law of the SeaBandung, Indonesia

Lewis AlexanderDepartment of Geography 4Marine AffairsUniversity of Rhode IslandKingston, Rhode Island

Scott AllenLaw of the Sea InstituteWm. S. RichardsonSchool of LawUniversity of HawaiiHonolulu, Hawaii

R.P. AnandSchool of International StudiesJawaharlal Nehru UniversityDelhi, India

Bernard I. ApplebaumDepartment of Fisheries andOceansGovernment of CanadaOttawa, Canada

David A. BentonOffice of Externa> andInternational Fisheries Af fairsAlaska Department ofFish and GameJuneau, Alaska

511

Takashi AokiKeio UniversityTokyo, Japan

Arnd BernaertsLaw Offices M.J. NaderRiyadh, Kingdom of SaudiArabia

Rudolf BernhardtFaculty of LawMax Planck Institute forInternational LawHeidelberg, Germany

Richard BilderUniversity of Wisconsin LawSchoolMadison, Wisconsin

Daniel M. BodanskyUniversity of Washington LawSchool

Seattle, Washington

Roger W. BogueMaritime and International Law

DivisionU.S. Coast GuardWashington, DC

Paulo Sergio T. BozziBrazilian EmbassyTokyo, Japan

Thomas A. ClinganUniversity of MiamiSchool of LawCoral Gables, Florida

Alastair CouperUniversity of Wales College ofCardiffDepartment of Maritime StudiesCardiff, Wales

John P. CravenLaw of the Sea InstituteWm. S. RichardsonSchool of LawUniversity of HawaiiHonolulu, Hawaii

Joan DonoghueOcean InternationalEnvironmental kScientific AffairsDepartment of StateWashington, DC

Milton DruckerOffice of InternationalCommoditiesDepartment of StateWashington, DC

Bilan DuChina Institute for MarineDevelopment StrategyBeijing, China

Seiji EndoUniversity of TokyoTokyo, Japan

Gracie M. FangForum Fisheries AgencyHoniara, Solomon Islands

Kuen-chen FuNational Taiwan UniversityTaipei, China Taiwan!

Masamichi FujimoriDeep Ocean MineralsAssociationTokyo, Japan

Norio FujinamiMinistry of Agriculture,Forestry, and FisheriesTokyo, Japan

Kiminobu FukarnachiFaculty of LawKanta Gakuen UniversityGunma, Japan

Eiichi FukatsuProfessor of International LawNihon UniversityTokyo, Japan

Hiroshi FukudaOffice for the Law of the SeaMinistry of Foreign AffairsTokyo, Japan

Yasushige FukudaDeep Ocean ResourcesDevelopment Co., Ltd.Tokyo, Japan

Akiko Funao

Institute of InternationalRehtionsSophia UniversityTokyo, Japan

Tsutomu FuseAssoc. Professor ofInternational LawTakaoka College of LawToyama, Japan

Koh FuyukiInternational DivisionJapan Fisheries AssociationTokyo, Japan

5l3

Serge GarciaDepartment of FisheriesFood and AgricultureOrganizationof the United NationsRome, Italy

Glenda GauciAustralian EmbassyTokyo, Japan

Elizabeth N. GloverLaw of the Sea InstituteWm, S. RichardsonSchool of LawUniversity of HawaiiHonolulu, Hawaii

Norio GodaTransport Policy BureauMinistry of TransportTokyo, Japan

Guillermo S. GomezTemple, Baker and Sloane, Inc.San Diego, California

Tina B. GravesDivision of Environmental

QualitySaipan

Jeremy HarrisonWm. S. RichardsonSchool of Law

University of HawaiiHonolulu, Hawaii

Geoffrey HollandPhysical and Chemical SciencesDirectorateFisheries and OceansOttawa, Ontario

Veravat HongskulDepartment of FisheriesMinistry of Agriculture a~dCooperativesBangkok, Thailand

Tadato HoraguchiMarine Resource DepartrnzztMitsubishi Metal Corporatip~Tokyo, Japan

Kenji HottaDepartment of OceanicArchitecture and KngineerirtaCollege of Science andTechnologyFinabashi-shi, Japan

Michaela M. HuardDepartment of Fisheries a~dOceans

Government of CanadaOttawa, Ontario

Daniel HuppertInstitute for Marine StudiosUniversity of WashingtonSeattle, Washington

Levan ImnadzeInstitute of World Economy andInternational RelationsUSSR Academy of SciencesMoscow, USSR

Mari IkeFaculty of LawUniversity of TokyoTokyo, Japan

Yasufumi IshiwadaEarth Resources Satellite DataAnalysis CenterTokyo, Japan

Jon L. JacobsonOcean and Coastal Law CenterSchool of LawUniversity of OregonEugene, Oregon

Casey JarmanWm. S. RichardsonSchool of LawUniversity of HawaiiHonolulu, Hawaii

Douglas JohnstonFaculty of LawUniversity of VictoriaVictoria, British Columbia

Mumba KapumpaMinistry of FinanceRepublic of ZambiaLusmdca, Zambia

J.A. KatiliKirektorat Jenderal Geologidan Sumber Daya MineralJakarta, Indonesia

Kenzo KawakamiMinistry of Foreign AffairsTokyo, Japan

Sohichiroh Kawakami

Faculty of LawKan&gawa, Japan

Tsuneo Kaxi

Information DivisionOverseas Fishery CooperationFoundation

Tokyo, Japan

Yutaka KikuchiDeep Ocean Minerals Ass'nTokyo, Japan

Dalchoong KimInstitute of East/West StudiesYonsei UniversitySeoul, Korea

Young-Koo KimProfessor of International LawKorea Maritime UniversityPusan, Korea

Lee KimballWorld Resources InstituteWashington, DC

Hiroshi KitashimaMitsui Engineering andShipbuilding Co., Ltd.Tokyo, Japan

Mamoru KogaSeinan Gakum Un>vers>tyFukuoka, Japan

Anatoly KolodkinSojuzmorniiproektMoscow, USSR

Igor K. KolosovskiCommission for the Sea BedAuthorityMinistry of Foreign Affairs ofthe USSRMoscow, USSR

514

Komar Kanta-AtmadjaIndonesian Center for theLaw of' the Sea

Baadung, Indonesia

Ichiro KomatsuTreaties Bureau

Ministry of Foreign AffairsTokyo, Japan

Kohsai KoyamaPki Electrical Industrial Co.,Ltd.Tokyo, Japan

Sbigeru KozaiFaculty of LawKyoto UniversityKyoto, Japan

Dale C. KrauseDivision of Marine SciencesUNESCO

Paris, France

Tadao KuribayashiFaculty of LawKeio UniversityTokyo, Japan

Sachio KurokawaTechnical Research 4,

Development HeadquartersMitsui Engineering 4,Shipbuilding Co., Ltd.Tokyo, Japan

Tsuneaori KusakawaAssociate ProfessorTokai UniversityShizuoka, Japan

Mochtar Kusuma-AtmadjaIndonesian Center for theLaw of the SeaPad!adjaran UniversityBandung, Indonesia

Mooa S. KwonKorea Ocean Research andDevelopment InstituteSeoul, Korea

Frances LaiLiagaan CollegeFaculty of Social SciencesWaachai, Hong Long

Maivan C. LamLaw of the Sea InstituteWm. S. RichardsonSchool of LawUaiversity of HawaiiHonolulu, Hawaii

James P. LawlessOcean Minerals and EnergyDivision National Oceanic kAtmospheric AdministrationWashington, DC

Yong H. LeeKorea Ocean Research aadDevelopment InstituteSeoul, Korea

C.Y. LiScience k Technology AdvisorExecutive YuanChina Taiwan!

515

516

Hugo Llanos MansillaSecretary General of thePermanent

South Pacific Commission

Santiago, Chile

Jose Luis JesusPermanent Mission to theUnited Nations

New York, New York

Indrani Lutchrnan

World Wide Fund for NatureSurrey, United Kingdom

loni Madraiwiwi

Attorney General's ChambersGovernment of FijiSuva, Fiji

Kazuo Maeda

Ocearr Association of JapanTokyo, Japan

Philip A. MajorMinistry of Agriculture andFisheries

Government of New ZealandWellington, New Zealand

Jaswinder S. MandDept. of Ocean DevelopmentGovernment of India

New Delhi, India

Jan Magne MarkussenFridtjof Nansen InstituteLysaker, Norway

Yoshiaki Matsuda

Faculty of FisheriesKagoshirna UniversityKagoshirna, Japan

Said Mahrnoudi

Faculty of LawStockholm UniversityStockholm, Sweden

Kouichi Matsurnoto

Office for the Law of the SeaMinistry of Foreign AffairsTokyo, Japan

Akira MayamaDept. of International LawKonan UniversityHyogo, Japan

Sherwood D. MaynardMarine Option ProgramUniversity of HawaiiHonolulu, Hawaii

Irina M, Mchedlishvili

CLER

Moscow, USSR

Massata MibayeWorld Maritime UniversityMaim', Sweden

Edward L. Miles

Institute of Marine StudiesUniversity of WashingtonSeattle, Washington

Toshiyuki MisaitsuInternational Division

Japan Fisheries AssociationTokyo, Japan

Hirarnasa MishinaMetal Mining Agency of JapanTokyo, Japan

Motoo OgisoDept. of International LawTokai UniversityTokyo, Japan

Shigeo OhkuboInternational DivisionJapan Fisheries AssociationTokyo, Japan

Kunio OhtaOcean Association of JapanYokohama, Japan

Toshio OkuharaDepartment of InternationalLawKokushikan UniversitySaitama, Japan

Naoya OkuwakiTokyo, Japan

Masahito OmoriKeio UniversityTokyo, Japan

Tetsuo OyamaTechnology ResearchAssocation of ManganeseNodules Mining SystemTokyo, Japan

Jin-Hyun PaikInstitute of Foreign Affairs andNational SecurityMinistry of Foreign AffairsRepublic of Korea

Choon-ho ParkInternational Legal StudiesKorea UniversitySeoul, Korea

Renate PlatzMerStiftung Wissenschaft undPolitikEbenhausen, Germany

Sang-myon RheeCollege of LawSeoul National UniversitySeoul, Korea

Francisco Orrego VicunaInstitute of InternationalStudiesUniversity of ChileSantiago, Chile

Yutaka OsadaDept. of International LawSurugadai UniversitySaitama, Japan

Hisashi OwadaMinistry of Foreign AffairsTokyo, Japan

Benaissa SadekWorld Maritime UniversityMalmb, Sweden

Artemy SaguirianInstitute of World Economy andInternational RelationsUSSR Academy of SciencesMoscow, USSR

Fumiko SaigaEconomic Affairs BureauMinistry of Foreign AffairsTokyo, Japan

Kazuo SatoTokyo, Japan

Shigejiro TabataTokyo, Japan

5l9

Junichiro SatoKamigoto Oil Stprage Cp., LtdTokyo, Japan

Nikolai G. Shcherb>naInstitute of Economic andInternational Problemsof Ocean DevelopmentVladivostok, USSR

Huibert H. SegersRoyal Netherlands NavyMinistry of DefenseDen Haag, The Netherlands

Ivan A. ShearerFaculty of LawUniveristy of New South WalesKensington, New South WalesAustralia

Robert M. SmithChaminade UniversityHonolulu, Hawaii

Harold M. SparckHarold Sparck and AssociatesBethel, Arkansas

Carol StimsonLaw of the Sea InstituteWm. S. RichardsonSchool of LawUniversity of HawaiiHonolulu, Hawaii

Akio SudaTreaties BureauMinistry of Foreign AffairsTokyo, Japan

Kazuo SugaiTechnological Resources Ass'nof Techno-SuperlinerJapan Shipbuilding ResourcesCenterTokyo, Japan

Takane SugiharaDepartment of InternationalLaw

Hokkaido UniversityHokkaidp, Japan

Tatsuki TabataInternational DivisionJapan Fisheries AssociationTokyo, Japan

Yoshio TadenumaDeep Ocean ResourcesDevelopment Co�Ltd.Tokyo, Japan

Kuniaki TaieOceanic Fisheries DepartmentFisheries AgencyTokyo, Japan

Hideo TakabayashiDept. of International LawKyushu UniversityFukuoka, Japan

Minoru TakadachiToyo Oil DevelopmentCorporationTokyo, Japan

Yuichi TakanoTokyo, Japan

520

Kiyotaka TakahashiOverseas Fishery CooperationFoundation

Tokyo, Japan

Takehide TakahashiMinistry of InternationalTrade and IndustryTokyo, Japan

Yoshinori TakahashiPolicy and Legal AffairsDivisionMaritime Safety AgencyTokyo, Japan

Nobuyuki TakanawaOcean EngineeringDevelopment Co.Tokyo, Japan

Taro TakeuchiBP Far East Ltd.Tokyo, Japan

Seigo TakuDeep Ocean ResourcesDevelopment Co�Ltd.Tokyo, Japan

Syoiti TanakaInstitute of Cetacean ResourcesTokyo, Japan

Minoru Tanba

Treaties BureauMinistry of Foreign AffairsTokyo, Japan

Kazunobu TateishiIkuei High SchoolHyogo, Japan

Hisayoshi TeraiOcean Association of JapanTokyo, Japan

Shigeru TokuhisaOcean Association of JapanTokyo, Japan

Andrew R. TrenkaPacific International Center ofHigh Technological ResourcesHonolulu, Hawaii

Tullio TrevesOffice of the PermanentAdvisor of Italyto the United NationsNew York, New York

Vladimir N. TrofimovLegal 8r. Treaty DepartmentMinistry of Foreign AffairsMoscow, USSR

Kurao TsukikawaFaculty of LawKyoto Sangyo UniversityKyoto, Japan

Katsuya TsurusakiNational Resources Institute forPollution and ResourcesIbaraki, Japan

Victor UherbelauRepublic of PalauKoror, Palau

521

Philomene Verlaan

Law of the Sea InstituteWm, S. RichardsonSchool of LawHonolulu, Hawaii

Tokuji WakasaTokyo, Japan

Miranda WeckerCouncil on Ocean LawWashington, DC

Conrad G. WellingOcean Minerals Co.Santa Clara, California

Morten WetlandMinistry of Foreign AffairsOslo, Norway

Kenji YamadaGifu College of EconomicsKasugai Aichi, Japan

Sougi YamarnotoSophia UniversityTokyo, Japan

Surnio YamanoSpecific Project DepartmentSurnitomo CorporationTokyo, Japan

Tokuo Yarnao

Yuge Mercantile MarineCollegeEhime, Japan

Kiyoshi YasutomiFaculty of LawKeio UniversityTokyo, Japan

Takeo YokoyamaMineral Resources DivisionSumitorno Metal Mining Co.,Ltd.

Tokyo, Japan

Kunio YoaezawaNippon Suisan Kaisha, Ltd.Tokyo, Japan

Atsushi YoshiiFaculty of LawSetsunan UniversityOsaka, Japan

INMX

523

AeMk Laude ahip! 87-9, 105interception of EgypCian aircraft 108

hCP-EEC Joint Aaeernbly 248Adama, US Sec. State 85Advanced Reaearch Projecta Agency 889African Group 584hgoea, Etty 488Agreement oa Conaervation of Nature

and Natural Reaourcea 45

agreement to agree 248Akaka, Daniel, US Senator 451Alaaka 94, 141, 148, 160, 168Aleutian hlaada 142

Alexander, Lewia 66, 180Allen, R. L. 277American Samoa

tuna planta 478American SocieCy of international Law

ASIL! 420American Tuaaboat Aaaociation ATA!

491

Amoco Cadir 89, 72Anadromoue atocka 288

Anand, R.P. 88, 410Antarctic 177

hnCarc tie reeourcea

Statue of atocka 207

AnCarctic Treaty ConaultaCive Meeting410

AnCarcCic TreaCy of 1969 410Antarctica 58, 409, 410

mineral reaource activitiea freeae 409

Applebaum, Bernard 161, 414footnote 151

Aquacultureaahnoa 4M

Arafura Sea 247Arafura Shelf 400

hrchipelagic Law and Development Cen-ter 48T

Archipelagic aea lane paaaage 102, 104,264, 288, 419

Archipelagic atatea 102Archipelagic cetera 108Arctic 177, 420propoeal for acientific reaearch treatiea

422

Arctic atatea

propoeal for environmental treaty 421

Area, The 884Area, aovereignty over 521Argentina 448Aruaha UnderaCanding 528hSEAN 89, 45, 48haian-African Legal Coneultative Com-

mittee AALCC! 184-8Aaeociated Preaa 188

Auatraha 82, 89, 40, 104, 251, 410, 491aabnon 5aheriea 454

huatraiian Continental cruet 599

Authority 550Autoaomoue underwater vehiciea 450Averiii, P.H. 278Baker-Shevardaadae agreement 417Baltic Salmoa Fiaheriea Convention 197Baltic Sea 104, 418BalCic Sea Area Marine Environment

Convention 422

Banda Arc 400

Banda Sea 86,4TBarcelona Convention 422BareaCa Sea 422

Bay of Biacay 24TBaael Convention oa the Control ofTraaabouadary Moverneata of 8aaardoua%'aatea 422

Beamiah, R.J. 176Beckett, J. 278Belgium 826 ~ 572, 575Bengkulu 8aaia 599Benton, David 165Bering Sea 128, 158, 187, 141, 142, 144,

148, 160, 155, 187, 422, 459, 495expanaion of US lr USSR Sahery into

international watere 161

need for international reaearch andmanagement ayatexn 181

Beyerlia, Uirich 24681TNET 889, 590Bjoxdal, A. 278Black Sea 418

Black Sea Convention draft! 422Bohai Sea 481,48TBoundary delimitation 59Britain 25, 580Britiah Columbia 447

Broadhead, G.C. 278Bromley, Pree. Sci. Adviaor! 598

Brunei 4$Brussels Convention on Salvage �910!

91

Bulgaria 4$5Bunible Beeacquired by Unicord Group Thailand!

478Burke, %Niam 144, 148, 149, 2$7, 418footnote ISI

Buab, Vannevar $82Buton $99Byelorussia 4$5Cahfornia 141, 41$California Institute of Technology $81Canada 108, 115, 1SS, 1$1, lTO, 18T,

259, 272, 276, $2$, STO, $72, 401, 420,421, 42S, 414, 4M, 4$8, 4$9, 446, 44T,456, 456

Arctic straight basehnea enclosing is-lands 420

bilateral treaty with USSR 422IDRC 488management ot salmon 45$Nova ScoCian law on aquatic fauna;property rights 45$

aahnon 5aberiea 194, iSSCanada- Japan bilateral agreement 152Cape Aniva Sakhahn Mand! 418Cape Kril'on 418Caracas 16T, $69Caribbean 118, $92Caribbean Sea 8TCarolinea $81

Carribbean, drug sinuggling 84Carteliaation 428Carter, James, Prm., U.S. SQICatadromous apeciea 2$8Center for Oceans Law and Policy, Univ.

ot Virginia 418Ceram S99, 400Cetaceans 1TT, 286, 49$

Status of aCocks 181

Cbeju Mand 6$Cbeju Straitand transit passage applicability 66transit passage 6$warabips not required to give advance

notice 66

Chile 12, 1$, 115, 118, 145, 14T, 18T,$8$, 44$, 446, 458

Chile Foundation 450

China 12 18115 118, 187, 176$44, 460, 486

5sb apecm 4616ab yields in Bohai Sea, fellow S a

East China Sea 464

5aheriee development measuresfiaherim yields 464fishing f}eet 464pollution of fiaberiee 468recommended EEZ management iniprovementa 469

China Daily 188Clarion-Clipperton Fracture Zone 29$Climate change 402, 40$Clingan, Thomas A. 6$, 10S, $86Coast Guard, U.S, $82, S86Coastal state

proportionality required of actions 101regulaCions must not hamper innocentpaeaage 100

Coastal state abuse of juIisdiction 21~t 29$, $22, SSS, SS4, S$$occule with copper ores SSS

Cobalt-rich crusts '29$

Cod 1$9

Colombia 14$, 4T8, 479Colombo, Ceylon now Sri Lanka! 184,

165

Columbia River 141

Columbia University S8$Comiaion PermanenCe del Pacifico Sur

476: ar ebo SouCh Pacific Permanent

Ccmmiaaion

Gmmierce, Department of U.S.! IS8Commerce, Secretary of 140ComIniaaion on Pacific Fiaheriea Policy

448

Common heritage of mankind '2T, Sl, $6,$12, $2$, 402, 410, 601

Cwo hurdles: rights to resources tc envi-ronment S12

mon heritage regime S8T, $91Conoramwealth Heads of Governinant

CHOGM! «8Conservation of apeciea diversity 290ConsulCative Group Group of $3! $28Continental shelf 40, 99, 600Convention for ProCection of South Pa-

ci5c Region, 1986 2$1Con~ention for the Coneervation of Sal-

mon 197

524

Conyentlon for the Prevention of Pollu-tion from Shjpc, 197$ T$, 96

Conycntion for the Prevention of Pollu-tion of thc Sea by Oil 95

Convention on Piahjng and Conaervat jpnon thc High Seas, 1958 132

Conyention on intervention on the HjghSeas 422

Convention pn Maritime Search~ue {1978!

~ventjon on the Conditions of Regjatratjon of Ships 10T, 109

Conyention on the High Seas, 1958 88Convention on the Regulation of Ant-

arctic Mineral Resource Activities CRAMRA! 409

Convention on the Safety of MaritimeNayigation 90

Convention Relating to Intervention onthc High Seas in Cases of Oil Pollution95

Cook, Capt., Br. explorer 581Cooper, C. 278Cooperation 1Q, $9, 46, 47, 78, 147, 152

427, 4$2, 487, 49$competent international prganjaatjpna

29

in 1982 convention on the LOS 26ys adversarial attitude 40

Copper 522, 55$, 5$4, 553Corps of Engineers, Dept of the Army

$82, $86Costa Rica 479

Council on Ocean Law 41$

Couper, Alaatair 109CPPS 146

Craven, John P. 289, 565, 56Q, 579, 401,408, 412, ili, 41S, 42$

Creeping jurisdiction 61Crimea 107

Cuba 14S

Cuban missile crisis 588CuatoraLary international jaw 408, 418protests prevent formation 21

Darman, Richard $97de Cucjjar, Perca, UN Scc-Gen. 24& Iurr Be9'i oc Pocis 580Dedaratipn of Paris, 1866 581Deep Ocean Minerals Aaaociation

DOMA! 291, 295-5, 2QQ, $01Deep Ocean Resources Development

Con~iy Ltd., DORD! 29 $GDeep eea minDeep sea nnnm 412Deep seabed }9conunon harjtage of m~d

age, global common dh,tingujahed 410

environment 417failure of~ of mnung countrjce to ratifconvention IT

I "jncrajs ResourceAt $90

M, 18, 108Defenseefcnee Intclbgencc Agency Saentdic

Advisory Board 586Denmark 116, 170, 421salmon tmherjee 4$6

Department of Commerce $85Department of Defence 58$Department of Energy 45GDepartment of Pisherica and Oceans

Canada! 176Department of Interior 582Department of Ocean Development In-

dia! 407, 41GDepartment of State, U.S, 19Department of the Interior $85Department of Transportation $86Developed countrica IGDeveloping countriea $0numerical superiority and collectiveegoism 28

Development, suatainabje 290Dickaon, W. 278Diego Garcia $92Dispute settlement 1$4Dispute settlement, pollution INDistant water fishing nations 287Dolphin 145, 215Dominican Republic 115Donaldson, Loren 488

Donoghue, Joan 8, 18, $0, $1Doughnut hole 16$Drift net fishingaee also, fishing

Drjftnet 5ehjng 20, 248, 26'2, 269, 285,47$, 49$

by-catch unavoidable 260Caatrics Declaration, 1989 249EEC Resolution 248ghost Sahing 274

525

high seas 20high technology for efficiency and eon-

' ervatioa 276

incidental catch 284

Japanese government reasoning 2T1Langkawi DeclaraCioa on the Environ-

ment 249

Leaser Antilles regulations against 249loal or discarded nets 241Organisation of Eastern CaribbeanStates {OECS! resolution 249

prohibition of traaashipment 265radio-buoy for positioning net 2T'2safety of navigatioa threatened 222South Pacific albacore tuna 261SouCh Pacific island nations, politicalposition 285

Tarawa Declaration, 198Q 249V.S.- Japan agreemeat of 1991 275, 276VN General Assembly Resolution, 1989

249

UN moratorium on driftaet fishing '268Wali of death 2$9

WeHingtoa Convention 261Drihnet, large, for aquid, salmon and

tuna 285

Driftnete 490

Catch selectivity 260ghost fishing 222

Drucker, Milton 561Du, Bilan 460, 486East Chlaa Sea 461, 467East Korea Bay'~ traight baseline impermissible 61straight baaeliae 58

East Sea 66

East Sulaweai 400

East-West Center 4$0

EaaCern European Socialist StaCea $2$Eastern Pacific tuna fisheryproduction flgurm 4TS

Eastern Pacific Tuna Organisation{OAPO! 146

Eastern Tropical Pacific tuna fishery474

Ecuador 146, 187, 58$, 477, 479, 491Education oa marine 4 indigeaous ener-

gy resources 4$0ERR 20, 5$, S4, 56, 56, 99, 100, 11$, 114,

128, 154, 1$8, 141-145, 145, 14$, 164,16$, 168, 170, '258, 2$9, 265, 256, 282,

286, 288, 290, 590, $9$, 594, 415, 428,445, 451, 461, 470, 486, 489, 495

and fishing 10China 462CoaaCal eCate obligations 15developing countries $5Edict of the Presidium of the SupremeSoviet of the USSR 421

EEZa 249

~ stabliahinent of 10fiaheriea research Limited 16high seas aa regards navigation of vea-

~ els 15North Pacific drift net fiaheriea agree-ment, 1990 276

salmon 4$6

salmon fiaheriea 456sr' generis 15

REZ Declaration U.S.! of 10 March1985 408

electronic communLcations and informa-tion transmission $89

ELLaabeth, Queen 581Endangered Species AcC ESA! 141England 1$7Enterprise, The 2$, 50, 51, $26, 52T,

528, SSO, 428annual administrative expenses 19financial burden 506

Ravironment 562, 402, 408, 412anthropogenic changes 412

Eurasia SQQ

Eurasian Island S81

Europe 109, 294seafarers declining 109

Europeaa Community 429Evenaen Group 11, $87Exclusive economic aone 10, $86Kxxo» VaI4fcr 69, Ti, Q4Falkland Islands 445

FAO 12, $5, 188, 247, 281, 289Consultation, pelagic driftnet fishing241, 247, 25T

Fgi 115, 164, 28TFinaace Committee 605

FLacher, %. 176Fish aggregating and driving devices 265Fisheriea $$, 47, 11$, 400, 450Alaskan model for ocean ranchiag 448anadromous stocks 282

Antarctic lT6

Antarctic Resources 2058ering Sea 129biomass estimate, worldwide 290Mtiah development model 460Bdtiah legislation 467catadromous species 282Characteristics of Fishing Gear andMethods 280

Chilean development model 460China 487

China, overfishing problem 486China, pollution problem 4B6Chinese anti-pollution measures 48$Chinese 5sheries management 480Chinese yi ~ ld figures 484coastal state dominance 14QcoaaLal state landings va distant-waCerstates landings 115

coastal state rights 1$4, 145coastal state rights not superior to highssaa Nahing state 1$4

coastal states, managerial effectiveness124

conservation 140

conservation measures 284

conservation measures apply inside andoutside EEX 1$5

conservation on Che high seas 184ccoperation 1$8customary international law 1$2developing sCaCesl socio pobt Ical g«kn

11$

diplomacy 156dispute set Clement 1$4distributive justice for disadvantaged

nations 119

dolphin 282"dolphin free" tuna 5ahing areas 481dom tic6 t 1$8donut hole 141drmtnetting 1$9, 155~ con«maic sanctions 1$2

eom«mic, ecological and social factors142

IXs encompaas moat maj or fish stocks.122

~ ffectkveness of national and interna-Cbsaal management 290

5srelgn 1$$See acploitation va strict regulation

257

4Hnet 28$gr«nmdflsh catches, US N. Atlantic 129guise of resource coaaervation 150high aea reao«trees classified 281high seas 178, 2$8, 261highly migratory species 1$4, 282Japan $4Japanese annual catches in Benng Sea

12$

Japanese model for development pro-gram 448

J«Nnt venture H$jurisdiction of the State of origin.Lacey Act 445legal right Co released salmon 462management needs 220need to view problems in context ofpohcy needs 122

negotiationa: multilateral approach vainternational agencies 287

new factory vessels, effect of 128new high seas entranta 162New Zealand development model 449North Atlantic sabnon 196

North Korean fishing boats fishing ille-gally 1$7

North Pacific; US-USSR understanding$74

Norwegian legislation 458obbgation to release surplus resources

1$4

obstructions to sabnon in HeU'a Gate

Canyon 442oceanic horse madrerel 146, 20Q

stater of stocks 210

optimum yield 1MOregon and Catifornia ocean ranching

Inodel 449

over-capitalisation 141policy 188pobtical factors 128pobticising 6aheries science 2$9poHach 128-9, 14$-4, 148, 16$, 214,

291

question of intermingling in Bering Seaspawning areas 129

recreational 140

regulation of sanitary conditions insabnon production 465

research needs 21$

resouxce conservation aa guise for re-

527

strictiona 128sahnon 195, 4$2aa!mew and trout '269~ almon and trout driftnet fishery 27laa!mon in customary !ae 461aahnon ocean ran49mag 441salmon; domestic regimes 44$sanctions aa a GATT violation 155~ edentary apeciea 285Sharla 202shrimp 142shrimp trawl 141aquid driftnet 270~ traddhng and highly !nigratory species

128straddling stocks 154, 145, 176tuna 54, 262, 470, 401tuna and do! phina porpoise! 267, 480,

404tuna and tuna-l!he species 55, 186tuna, abandonment by non-adaptiveboats 481

tuna, harvesting operations 477tuna, major problems and conatjrainta

470

tuna, mar!Let contro! 470tuna, processing operations 478tuna, martet access 480tuna, regulation 489tuna, U.S. high seas fleet nngration 1$9unilaterahsm 285%'astern tropical Paci5c tuna 472cwhales 178

Piaheries management planeconfhcting objective, effect of 14$

Fiaheriea policy 28Piaheries regime instability~ ouree of change in LOS 140

Piaheriea, drift ~ spec!as! 247Fisheries, high seascatadronxala apeciea 2$0high seas, compu!sory dispute settle-

mant 24$

high seas, comeervat ion 1$4high seas, rights of coastal states 15$

Fisherman, traditionalindonesian 48

Filmy Management Councils 158, lilPitapatrich, J. 278Flags of convenience 72, 107, 109Flemish Cap 176

pong, Gracie 164, 40lpood and Agriculture Organiaatipn

the United Nations FAO! 2$7Ford, G~d, P~., U.S. 501Forum Fisheries Agency jer South p~

ic Forum Fisheries AgencyFourth Kurile Strait Paramuahir

Mahanrushi Mands! i!8prance 69, 85, 109, 525, 526, 544, $70

572, 5T$, 581, 4! 0, 425, i29, 4$0~bed mining 5TO

Preedorn of navigation 66, 86, �5, $86,41$

Freedom of Ocean Science Tash Group FOSTG! 584

Freedom of scientific research $87

Preec}om of the seas 2$TFreedom of the seas doctrine 25

Pridtjof Nansen institute $56Fujiiahi, A. 278Pujimori, Masamichi 20l, 29$, $52Pujinami, Norio 277, 281, 288, 495Fund for Compensation for Oil PoBution

422

Pye, Paul 586Garcia, Serge M. 176, 188, 28!, 287, 289,

201General Fisheries Council for the Medi-

terranean GFCM! 248Geneva 166

Geneva Conventions of 1958 10, 240Geneva Convention on the Continental~ belf, 1058 244

Geneva Convention on the High Bess,1058 258

Geographical!y disadvantaged States167

Geological Survey of Japan GSJ! 296German Phtternal Debts Arbitration 246Germany $2, 246, 525, 549, 570, $72,

581, 425, 498ocean policy 419seabed mining 5TO

Gidek, G.C. footnote! 2$TG!obal ~aeter of ocean uasa 26Global environInental agreements; nssd

for 402Global Maritime Distress and Safety

System T4Global ~arming 405, il$, 450Gold, Edgar 98

Comes, G uiilermo 162, 470, 489, 490-94Good faithGorbachev 421, 422gdansk Speech, 198l 420~voetok, Murriiansk, Deli, Belgrade,speeches 422

Creat Britain 85C~ 246, 425Greenpeace 89

Crotius, Hugo 26 25l 580Croup of 5 Friends of tbe C

528GrouP of 4 Registerwd Pio

528

Group of 6 58lGroup of 8 potential appHcantGroup of Tl 11, 50, 528, 551 554 5

565, 570, 575, 5li, 58lprefers Co negotiate at pre~m 552sCatemenC of Chair on wilbn~negotiate with U.S. 551

Gulf of Alaska 142Gulf of Mexico Sl, 141, 142Gulf of Sidra 592

Haddock 159Hague Convention 90Haiti

transit through territorial sea and EEg419

Hetman'Waru No.2 ship! 296Halibut 141

Halmabera 400

Hanseatic League 580Harvard Univereity Underwater Acous-

tics Lab 582

Hawaii 590, 428, 451Hawaii Department of Business and

Ecceiomic Development 450Hays, Ronald J. 42l, 494Henkin, L. 418ffenhf of Free Keerprist ship! 69, l2High seas 10, 140, 25l, 264Ssbing, danger in unilateralism 26ljuridical concepC 258sahnon fisberiee 450

Hijacking 10lHokkaido Univeraity 289Holland, Geoffrey 108, 401, 412-415Holbngs, Erne t F., U.S. Sen. 594Hongskul, Veravat 111

Honiara +~n Islands 252Honolulu 428Hormus 592

+age Convention 90Representatives

Hsun Ni, I,, 229Humphrey, Hubert H Vp-, U.S 58Huypet, D~ D. 158Iceland 115, 258ICES 19lICJ 408ILO 110

ae Levant' 512,555,402bicineration at sea 4D5

12' 40! 118, 168, 525544. 599, 4DSCentral Mechanical Engineering Re-search Institute 542

Department of Ocean Development540, 4N, 41D

NaCional Institute of Oceanography542

ocean pohcy 41Dseabed mining, cooperation 545

indian Ocean 118, 528Indian Ocean Pishery Coinnussion

IOPC! 248Indian Oceans 24'

lndo-Pacific Pisheries Commission IPPC! 189, 248

Indonesia 12, 1$, 56, 59-45, 46, 47, 118,581, 48l

archipelagic passage 420right of transit passage through straits

419

Timor Gap 48, 599-400Indonesia-Australia Treaty 40, 48treaty with Papua New Guinea 59

INl<VLSAT 1DlInnocent passage 52~ dv ance no tice for w arships required by

South Korea 82

coastal State rights 54position of tbe two Koreas incompatiblewith UNCLOS ratilcation 82

prior approval required by North Korea82

prior notification requirement disal-lowed 10'l

submarines 65~>rary suspension 54

529

unrelated Co nature of vessels or cargosSS

US-USSR agreed atatemenC 574marships 6$

InnAment passage right extinguished bypollution 98

Inoue, M. 2T8Inouye, Daniel, U.S. Sen.! 428, 4$1Institut fur Internationalea Recht An der

Universitat Kiel $89Institute for Economics and Internation-

al SCudy of Ocean DevelopmenC 1$6later-American Tropical Tuna Commis-

' ion {IATTC! 189, 476-8, 490Intergovernmental Oceanographic Co-

nnniasion IOC! 1Bl, 404International Commission for Che Con-

~ ervation of Atlantic Tuna 189, 248International Convention for Che High

Seas Fiaheriea of the North PacificOcean 458

International Convention for the Safetyaf Life at Sea 74, 76

InCernational ConvenCion on MaritimeSearch and Rescue TS

International Copper Study Group $55International Court at Justice 160, 244International Decade of Ocean Explo-

ration 591

InternaClonalHydrographic Organisation IHO! 74

International Law Commission 8International Maritime Organisation

IMO! 42 S7 69J 74' 90! 100 107! 1 10Maritime SafeCy CommiCtee T8polluCion conventions, bated 7$protocols on liability and compensation

41$

Safety Committee 107Resolution A.$76/Res. $76 X! Naviga-

tion in Straits of Malacca 42International Maritbne Satellite Organi-

sation INIHARSAT! T4InCernational North Pacific Fiaheriea

Cornrnlaalon INPFC! 248international OTIC Association 4$1International Radio Consultative Com-

rnittee CCIR! 74international Seabed Area 326InternaCional Seabed Authority $70,

$71, 604

International Telecommunications Union

{ITV! 74InCernational Tribunal for the Law of the

Sea 571annual administrative expenses 19

International Whaling Commission 268Iran 592, 594ttariait passage 419

Ireland 116salmon fiaheriea 456

Italy 526, $72, $75, 42$Jack mackerel 146Jakarta Resolution on Sustainable De-

velopment 46Jamaica 168

James, King $81Janeeen, J.F. 278Japan 8, 11, 12, 14, 20, $6, 40, 41, 85,

148, 161-165, 166, 160, 166, 187, 168,170, 171, 18'7, 260, 266, 269, 272, 278,284,'286, 2$7, 288, 294, 296, 501, $26,5'26, $58, $4$, $44, 570, ST2, $81, 590,42$, 429-4$1, 4$$, 458, 459, 441, 444,«6, 47$, 476, 476, 479, 484, 488. 491

Aquatic Reaourcea Conservation Act of1961 448

decision on raCification on LOS conven-Cion 21

Fisheriea Agency 166, 278Internatianal Section, 277

fishing fleet frosen 150Foreign Otfice 1B2Japanese crew on North Korean nahing

boaCa 1STLaw on the Territorial Sea, 1977 85Maritime policy concerning the 12-mile

terriCorial aea 184Metal Mining Agency 296, 559Ministry of Agriculture, Forestry, and

Fiaheriea 49$

Ministry of Foreign Affairs 429Ministry ot International Trade and

Induatry MITI! 29$, 5$9, 4$0IndusCriai Location and EnvironmentalProtection Bureau, MITI 298

Ministry of Transport 486Official Development Assistance ODA!

492

OTECA 451

salmon flaheriea 194, 454, 458seafarers declining 109

$30

The Law on the Territorial Sea 168three non-nuclear principlea 168

Japan Marine Science and TechnologyCenter {JAMSTRC! 4$0

Japan Ocean Aaaociation 4-6, 277, 42$Japan-America Society 428Japaneae Society of Scientific Fiaheriee

278

Jarman, M. Caaey 92, 108, 10QJava 420Jeeue, Joae Luia 498Johne Hopkina Univeraity Applied Phya-

ice Lab $82Johnaton, Douglaa M. 11$, 156, 1$8, 142,

144, 164, 1SS, 488Joint venturea 22joint development 56

Jonee, R. 279Joeeph, James 289Juatinian $80

Knbwe, Baail R., Min Minea, Zambia555

Kagoahima Univeraity 2T7Kapumpa, Mumba S. 50, $19, 562Karlaen, L. 279KaNi, John A. 598, 401, 408, 412, 415,

416

Kawamura, Gunao 277, 279Keahole Point, Hawaii 4$1Keio Univaraity 27TKelpconvereion into methanol on floating

platforma 4$1Kenya 1BT, 168Khnuhchev, Nikita, Premier, USSR 588Kickey, W. 278Noel 498

Kim, Daichoong 66, 61, 104-6, 107, 416Kimcbaek SQKingaton, Rhode Ialand 160Kiribati 491

Ioeainger, Henry 550Knauaa, John A. $86, 597Koh, Amb. T.T.B. 592Koike, A. 279Kolodkin, Anatoly 107, 109, 406, 410,

41T

Korea 20, 66, 62, 106, 107, 187, 260,590, 4T$, 476, 4TT

Korea Straitthree miiea territorial aea claimed 65

tranait paaeage 62Korea Univeraity 187Korea, North 157Koaong SQKuribayaahi, Tadao 5, 4, 110, 187, 277,

291, $66, 402, 416, 425Kuriyarna, Vice Min., For. Aff., Japan

1BS-6

Kuroahh current 461

Kueuma-Atmadja, Mochtar 56, $9, 111Kuwait 59'2

Kyuahu Univerelty 488Lai, Francea 8, 22, 51, 52, 54, 164Lamont Geophyaical Laboratory 58$Land-iockect Statea 1BT

Laraen, R. 279Law of the Sea BnBetin 21Law of the Sea Inatitute $-S, 7, 8, lB0,

5$2, $BQ, 566, $79, 586, 586, 588, $90,596, $97, 41T, 42$, 415, 49$, 498

Lead $$$

Legal and Technical Commiaeion SOSLeningrad 148Leo, Pope M0Liberia 72

Lien J. 279

Lingnan College 8London Dumping Convention I, 101,

105, 108, 405, 42'2Lowe, A.V. 264Lutchman, Indrani 494Mackinder, HJ. $81Madraiwiwi ~ Joni 287, 494Maeda, Kasuo $, 4, 42$Magnuaon Act, 1976 1$8, 140, 142, 264,

590

Mahan, Afred Thayer $81Majkowaki, J. 176Malacca Strait Council 45

Malacca, Strait of $92internationaliaation 41

Malayaia 59-4$, 46Mand, Jaawinder Singh 40T, 416Manganeae 29$, $22, 5$4, $6$Manganeae nodulea 29$

metallurgy 298Nanltattan ahip} 420Manila 41

Maaafield Amendmentnulitary va non-military Rir9 585

Manailla, Hugo Llanoe 146

531

Mjm JQ!ertrns 580Marine Board NAE! 584, 591Marine environment 69, 402Marine Maaunal ProCection Act of 1972dolphin protection policiee 480

Marine mameaale 140, 258Marine aaatamale, jurisdiction over 266Marine mammala: ar cetaceansMarine Miaerale Technology Center 5Marine pollution 405Marine ecientific research 21Marine touriam 48Marine Curt' 212Maritime crimm 82Maritime traijaiag 79Markueaea, Jan Magae 556hbQtPOL 1075/78 06, 101, 105, 405,

422; see aleo IaCeraatioaal ConventioneMarque aad repriaal 580Marehall ialande 5$1, 491Matauda, Yoehiaki 259, 279, 285, 288,

42T!Matauaaga, Spark, U.S. Senator 6, 596,

59T, 427-8, 451,Mauritania 116

McConnel, KX. 279McDougal, Myrea 257McDougal and Burke 257Mediterranean Sea 87, 104, 176, 247Ncgn Borg ahip! 69, 72Melbourne University 488Merchant Marine aad Fieheriee Com-

mittee U.S. Home! 586Mceopelagic Fiah 211Mexico 116, 118, 162, 477, 481, 491, 494

tuna fleet 478

Migratory apeciee 258Milee and Burke

footaoCe 151

Milee, Edward L. 5, 25, 55, 55, 144, 148-0, 164, 569, 586, 402, 418, 425, 488!400, 405

Mito, Dr. 14$Metal Mining Agency of Japan M&V!

204-0

Mochtar Kueuma-Atmadja 106, 150,415

Molybdenum 565Moatego Bay, Jamaica 168Montreal Convention 00Moree telegraphy 76

Murrow, Edward R. 588Muaiaic, R. 270NAFO 161, 152

Nakagawa, Toru, Amb., Japan 8, 50 156, 286

Nakaaoae, Yaeuhiro, PM, Japan 428Nakhodka 157

Nandan, Satya 291Narcotic druga~ ea trat5c 85

NASCO 107

Naahimoto, K. 279Naeu, Noriyuki 566, 401, 408, 412, 415National Academy of Eagineeriag U.S.!

584, 591National Academy of Sciences U.S.!

582, 584, 501National Advilory Committee on the

Oceaaa aad Atmoephere NACOA! 501permanently dieeolved 591

Natioaal iatereete va cooperative goale2T

Natioaal Oceanographic and Atmoepher-ic Achaiaiatration NOAA! 584-6

National Prohibitioa Act, U.S. 84National Reeeareh Council, U.S. 582National Reeearch Defense Committee

582

National Reeearch institute for PolluCionand Relourcee NRlPR! 294

National Scieace Foundation 585, 501,450

National Sea Grant Program 6, 586,596

NATO 165

Natural Energy Laboratory of Hawaii452

Naval Anne LimiCaCion Seminar 425Naval iacidente at eea: multilateral con-

vention propoeed 425Naval Ordnance Teet Facility 581NavigaCioa 41, 66coastal ataCe authority 98flag state eaforcemeat 98paramountcy of inCereet, queeiion of 98

Navigation, international 40Nemoto, Takahiea 566Neritic Ipeciee 176Net~and 26, 59, 170, 526, 572, 581Neutral Ihippiag

andlaw of war 6T

532

New Delhi 1B6New England 159New Guinea 400

New International Econoinic OrderNew York Timee 187

New Zealand 116, 27$, 409, 454455, 467, 491

~ almon tagging 464Ng- Jaen, YvetCe 88, 104, 108, 110Nicaragua 592, 594Nickel 205, 522, 5$4, 565world conaumption 18

Nixon, Richard, Proc., U.S. 181Njenga, Prank 1BB

oah 580

NorCh At!antic 158, 247North Eaet ConCinental Shelf Caee

�989! 408North Korea 58, 116, 118, 15750 mile military aone BBmiTitary boundary aone 68North Korean flag boate 149

North Pacific 187, 177, 247, 250North Pacific ehelf 178

North Sea 25

North Sea Continental Shelf Cacao 244

North/South ideological confrontationon seabed matters 50$

Northeaet Asia 66

Northwest Atlantic 154, 162, 178Norton, V.J. 2T9Norway 12, 109, 116, 268, 421, 444, 466,

458

Naee, Y. 279NMPR 2Q6, 290Nucleus Enterpriee 51O' Neill, William 80Ocean Aasociation of Japan: see Japan

Ocean AeeociationOcean dumping 90Ocean environment 587Ocean Minerale Company 291Ocean policy $80Ocean Policy Board $01Ocean Policy Committee 584, $01Ocean policy, importance of 401Ocean ranching 45'2Ocean Science Boast 501Ocean Science Board NAS! $84Ocean apace 402, 405pohtical uee of the eea 414

Ocean technology~opment mechanieme 428

Ocean thermal energyOda, Shigeru 180Office of Naval intelligence $88Office of Naval Reeearch $82, $8$Office of Scientific Reeearch and Devel-

opment 582

Ofeiore oil $82Ofhhore oil and gae 415Ofhhore radar picket platforn» $8'2Offehore regietrim 109Ogieo, Motoo, Amb., Japan 8-9, 19, 20,

2$ $1 $4 $8 $52 $5$Ohaawa, Y. 280Oil and gae 41$overlapping claime 41$production charing ayetem 4T

Oil and gae reeourceeTimor Gap 40

Oil and gae, joint development 48Oil and ahipping intereete 42Oil exploration, SouCheaet Aeiawater depth conaidorations 400

Oil pollutionliability and compeneation; right of U.S.atatee to regulate 41$

Oil Pollution Damage Convention 422Oil proepectingBanda arc $99

Sumatran fore-arc baeina $98

Oil epiil contingency planMalacca 4i Singapore Straite 42

Oil epille 422Oman

Cerritorial sea paeeage 410Optimum Yield OY! 142Oregon 141Oregon SCaCe Univereity $85Organiaation Latinoamericana do Dmar-

rollo Peaquero OLDEPESCA! 478,490

Organiaation of Eastern CaribbeanStatee OECS! 249

Orrego Vicuna, Francieco 416, 4$2, 488OTEC $97, 420, 450ALCAN-Hawaii cloeed cyclo OTEC teat

bed 4$1cloood cycle plant, Taiwan 4$1open cycle powerplant 451see alta. Ocean thermal energy

533

Cbaaan, Bernard 181Oaone hole 412Facem ia Maribua 42$Faci5c 528, $81aaimon 5aheriea 455

Paci5c Coagreea of Marine Technology$95

Paci5c Economic Cooperation Confer-ence 281

Paci5c Piaheriee Commiaaioa 458Paci5c Knternatioaal CenCer for High

Technology Reeearch PlCHTR! 6,$95, 415, 42T

Paci5c ialaad atatea~ ccNM'eaic development 4295ahing agraamenta 47$

Paci5c Ocean 258, 528, 471Paci5c Region and Enternational La»

Coaference Seriea PML! 488Paci5c Sahnon Treaty of 28 January

1985 442

Fachaga dealPucar de coacnAaado/dr ncgnicllcfo 24$Puca' de coeamhaufo 487Pucnen cfe segatamndo 245, 487Paih, Jin-Hyua 51, 104-5, 107Pakiatan '247

Falau 251

Panmna $9, 72, 146Panama Caaal 592Papua Ne» Guinea $9, 40, 147Pardo, Arvid 10, 119UNGA apeech $84

Path, Chooa-ho 187Patriaamial eea 1$$

Pehing Univexeity 488Pelagic 5ab 408Fell, Senator Claiborne {U.S.! 594Fetch 140

Permaneat Comnuaaioa of the South

Faci5c 490

Peraiaa/Arabian Gulf 419Peru 12, 1$, 118, 146, 187, 585Pharand, Doaat 420Philadeiphia Bar Aaaociatioa 181Philadelphia %'orld Affaire Council 181Philippinea 12, 40, 45, 110, 118, $92, 477Pinto, Chiatopher, Amb. Sri Lanka 587Pioneer lavmtor

DORD 294

Piracy 105-107

'private enda" requirement SQ5ag atate juriadiction 89

piracy and Cerroriasn~ xtradition and puniahment QO

Pitcairn hland 251Flataoeder, Reaate 52Plehhanov, Georguy V. 24Folaad 145, 4$6Pour Sce chip! 420Pollution 7$Regional agasemeate 104veeeel aource ve land baaed 9$

Potymet abc auMide depoaite 29$Polymetallic nodulea; minding $57Port atate authority 100Portugal 87, 580, $81, 418Preparatory Commiaaioa for the Seabed

Authority and for the La» of the SeaTribunal Prep Com! 50, $2, $1'2, $19,524, $26, 528, SSO SS2, $$4, $49, S52,$70-1, ST5-4, $9$, 417, 498, 501-2, 60$Stat»manta of Underataading 508

Pinanc» Committee STS5aancial conasderatloaa of aeabed re-

gime 505geatletnen a agreement, aubatantive

matt»re $76

negotiating atrategiee $24overlapping claime $25poeitive reeulte of negotiationa $71

Prince %'iOiam Sound OQ

Privateering 580Puerto Rico

tuna planta 478Radiocommunicatioa

tranenxNsloQ thr%!ugh eat»lilt»a»roughlyprohibited by port atate 107

Ratiner, Leigh SQSReagan 171, $72, 408, 414, 428Reagan Proclamation 108Reagan, Ronald, Free., U.S. $91Declaration oa the EEZ, March 10, lQN

408

Rex~able Energy Development 450Republic of Korea 12Rez camnlunis 257

j5cr audhaec 257

Res peÃico 257Rhea, Sang-Myon 488Rhodiaa Code 5&0

534

Richardaon, Elbot L. 550Ricker, %.E. 2&0Right of innocent paaaage S92Right of aearch BSRobertaon, J.H.B. 2&0Ryahkov, N.I. 422Sacramento River 141

Saguirian, Artemy 8, 24, 51, 52Salmon 159, 141, 142, 192fiaheriea

concept of Optimum EacapernenC 194North Atlantic 197Statue of atocka 194

Samoa 581

Santa Barbara oil epiU 584Sarga Maria ahip! &7, 88, 91Saeagawa, Y. 280Satake, G. 280Saudi Arabia 592

Saury 216Scoiutinaviair Star abip! 89Schmeck, H.M., Jr. 2&0Scotland 440Scrippa Inatitution of Oceanography 5&SSea, dependence on aa a eource of wealth

and well-being 41Sea Hoor Topography 500Sea Grant srjr National Sea Grant Pro-

graln

Sea level riae 406

Sea liona 141

Sea of Japan 418Sea of Okhotak 418

Sea turtlea 142

Seabed

unilateral exploitation 600Seabed Authority 19, 25, 50, STSannual adminiatrative expenaea 19

Seabed beyond national juriadiction587

Seabed cruata 450

Seabed minerala

~ trategic value haa been leeeened 565Seabed mining 4, 25, 52, 404

annual fixed fee of 51 million 18areaa for additional reaearch and devel-

opmenC 299freeae aorne provieiona of Part XI pend-ing economic viability 518

'production charge" 19'ahare of neC proceeda 19

Alit hority b ae environment+bility 515

Authority'a diecretionary powera exelva 517

collection ayatemconcentration of claimadeep eeabed mining~ ccmomic coneiderationa; aubeidiaation

54&

~conomic enviroiunent ia adverae 516~conomic, technical, legal problema 562elephanta' honeymoon S74lnterpriae 19environmental coneeiluencea 548environmental impact 298, 562environmental proCection 501exceeaive expendituree 56Sexploration plan 529financial implicationa a major impedi-

ment to adherence S17freeaing all activitiee pending reeoiution

40Q

bard core ieeuee S71

hietoricel, political, and legal factoreSTS

Indian Plan 541

Japanew pilot eyetem 298Japaneae plan 540Japaneae ve US economic practicea 560joint venturea 20, 50, 552Kiaainger formula 550land-bawd producer '20lifting pipe ayatem 297machinery, control ayaCema 500management atructure not inunutable51$

Midnight Group 572, STSMini-treaty and other agreerrianta STOmoratorium 574

national progranie va internationalcooperation 545

Nucleua Enterpriee 517obligatione of pioneer inveatore 527overlapping ciaima 527parallel ayetem 550Part XI proviaione can be adapted topreaent conditione 51&

Part XI; exploi Cation precedee environ-mental protection 514

pioneer inveetor obligationa ST1pioneer investor atatua $72

pioneer investors 525poliCical and legal considerations 549production limitation 554proposal for frees« 574protocol for hard-core ieauee 574provision for large scale mining threaC-«na ecosystem 515

psychological and ideological factors550

Pump Mt equipment 2QTqualificationa of pioneer inveaCora 526registration of pioneer investors 571renounce large scale Enterprise indus-

trial works 517

~ ampling equipment development 500should be rendered absolutely safe 514~ ocio-economic problems 501technological considerations 547technology transfer 20, 518Ciming of commercial operations 546towed collector unit 559

universal acceptance of the Convention571

US attltudea 549

vessel for Japanese p/lot system 296Seabed regimecompulsory transfer of technology SOTmining code 60Tproduction ceiling SOTprotocol aa a means of modification 608

Seacoast TeeC Facility Hawaii! 451Second II'orld Conference on Climate

405

SEIKAIKU Fish«ries Laboratory 280Shcherbina, Nikolai 156Shearer, Ivan 104, 284, 288, 48TShevardnadae 422

Shevardnadae-Baker Agreement 418Shimoeaki, Y. 280Shippingand pollution 70bottleneck areas Tl

bridge-Co-bridge communications 77cominunicationa 74

dieCreaa alerting 78doiible bottom tankers 415

general radiocommunicationa TTimplementation of IMO SCandarda 72locating signals TTmajor casualties 68marine aafeCy information 7T

on-scene communications 76radio ofTicera, necessity of TQregistries, genuine link 75search and rescue 78Techno-Superliner 484

Shipping and oil interestsShipsdesign, construction, manning, equip-

ment 100

internaCional registration 110Ships in distress

Brussels Conventions 104Singapore 40-45, 46Single Convention on NarcoCic Drugs

�981! 84SiCka 148

Slave trade 85

Social Darwinism 581

So«hart,o, Pres., Indonesi ~ 59Soekarno, Pres., Indonesia 59Solar Energy Research Institute 416Solomon Islands 116, 491South Africa 116

South China Sea 461, 487fishing grounds 462

South Korea llg, 544, 450territorial aea law 66

SouCh Pacific 118, 166, 24T, 250, 281OTRC 451

Cechnological adaptationa 494South Pacific Commission 475, 474South Pacific countriee

Japanese mineral explorations in EEI296

South Pacific Forum 249, 287South Pacific Forum Fiaheriee Agency

FFA! 55, 164-6, 189, 248, 262, 28l,4T4, 492

SouCh Pacific island naCione 286, 288South PacKic Nuclear Free Zone Treaty,

1985 2S1

South P acific Permanent Commission CPPS! 146

South Pacific, drift net fishing 20Southeast Asia

tee Conic evolution 598

Southeast Asia Program of Ocean I aw SEAPOL! 488

Southeast Asian Fiaheriea DevelopmentCenter SEAFTEC! 110

SoutheaaC Pacific 148

536

Soviet Union ll, 12, $1, 1$7, 146, 168,167 169 187! $26! $26! $92

academy structure includea social sci-l nce $92

political position $2Space SBSpain 115, 145, $80, $81, 42$Sparck, Harold SS, 150, 489Spark Mataunaga Hydrogen Center 4$1Spark Mataunaga Ocean Resource Labo-

ratory 4$2Sproul, John 289Squid 198, 281Status of stocks 200

Sri Lanka 184, 247Srivaatava, C.P. 80State inCerdependence and cooperation

26

Statelesa vessels 84Stenaon, G.B. 279Stevenaen, John R., Amb., U.S. 161, $86Stockholm Declaration and Action Plan

on the Human Environment 96Straddling sCocka 14$, 149, 160-162,

221, 281Strait of Hormua 411StraiCa of Malacca and Singaporehydrographic surveys, Japanese 41question of international status 41Traffic Separation Scheme 42

Straits of Malacca Council 41Straits passage 27Stratton Commission report $84, $85Suekarno, Pres., indonesia $9Sueharto, Pres., Indonesia $9Sugai, Kaauo 48$Sugihara, Takane 82, 105-8Sulaweai SQQ, 400Sumatra 420

Sumi, K.fooCnota 1$1

Sumitomo Mining Company 291Sunda Strait 420

Taiwan 20, 118, 260, 429, 4SO, 446, 4TS,4T5, 477

closed cycle OTEC 4$1Takabayaahi, Hideo 416, 488, 49$Takahaahi, Patrick K. 427Tarawa Declaration 260

Tech. Research Aaa'n. of ManganeseNodules Mining System 294

Techno-Superiiner 484Technological Research ~~iTechno-Superliner 48$, 48e

Technological advances 402Technology Research Associat~Technology Research Aasociatl

ion

Manganese Nodulea Mining Sy ~Territorial aea 10, 40, QQ, 160 240

41Tt f

numbers of states cia}tning«idths 1TO

territorial aea law of South K~territorial aea, 12 nule: preconditihigh seas fishing 161

territorial aea, 12 nule: U.S, p~tion of transit passage 161, IBS

territorial Iea, 12-nule: Japaneaconditions for 166

Terrorism, maritime 8$, 87Texas 59

Texas ARM $8$

Teauka, T. 280Thai-Malaysian joint venture 2$Thailand 12, 40, 46, 47, 110, 116, 118

SQQ, 479Third UN Law of the Sea Conference

UNCLOS-III! 28Timor ~: IndonesiaTokai University 8Tokuhiaa, Shigeru 4Tokyo $, 428Tokyo Economic Summit of' 1986 426Toney Canyon ship! 94, 95, $84Traffic in Narcotic Drugs and Psycho-

tropic Substances 85Trans Pacific Fiaheriea Consultative

Committee TPFCC! 147Transit passage 52, 55, 101, 109, ldl,

169, 264, 288, 419cannot be suspended 68inapplicable straits 6BInternational Maritime Organisation 67overflight 68submarines uae normal mode sub-merged! 5T

Travel fishing 260catch ae!ectivity 281

TraaCy between Indonesia aiid Malaysiaon the recognition of the 40

Treaty of Paris $81Treaty on Fisheriea, Pacific Island Stat a

537

4 Uni~ Statea 1$4Treaty on Protection of Polar Bears of

1075 421

Trenha, Andrew 418, 451TriparCiCe Agrexunent on Straits of Mala-

cca, 1077 40Truman Declaration on the Continental

Shelf 61, 582-5Tauahixna Strait B2-5three mile territorial aea claimed BS

Tuna 140, 148, 147, 281, 284, 286, 289production flgurea 4T1atatua of stoma 189worMwide tuna managemanC 221tuna txeaCy, U.S.-South Pacific states,

198T 2SSTuna, 'dolphin-free' 268Tuna, jurisdiction over U.S. poaition!

2$6

Tuna, «orM management ayatexn '289Turkey 11$, 425Tyndale, Bishop of 140Uhx~ ~ 45$

UN Charter

force used i» promotion of justice 1OSUN Conference on the Environment and

Derekpmeat 290UN Convention on the LOS, 1082 see

aha: UNCLOS-III. 8, 10, 28, 62, 79,07, 146, 185, 107, 1TO, 267, 28B, 522,5$2, 574, 408, 41T, 425

accepCed ea customary international law408

agxeexnent to agree 242aid to ahipa in diatreaa 106~ nadxxmaoua atocka 45B

burdensome to aealbed mining develop-ment 502

collective egoism of developing nations

consensus 525

cooperation 402cuaComary international law 408, 410,

600

dispute aettlemant 419drift gill-net 5aheriea 258driftnet 5ahing 2$2drug traffic provisions 84duties of flag state, safety of life 74Enterprise 428European viewa toward 121

Evenaen Group 1555aancial burden 555aheri~ management 114flaheriea, high aeaa 152freedom of the aeaa 4Q5

good faith 244harmoniaation of national legialationobligation for 1OT

high seaa xeaourcea 282hindexs aeabed mining 10implexnentation 4innocenC paaaage, USSR 418Japaneae ratification 21mining provisions rendered coxnpletely

unreaHatic 17

non-acceptance by major porexs 21obbgationa of atatea 22protection and preservation of the ma-

rine environment 70

aalxnon; protection on high aeaa 488Part Xl 19, 519, 554, 555, 564, 408-9,

410

Part 3Q haa binding force 410Part XI, express denial prevents accep-tance aa customary 400

Part XI amenable Co resolution 518Part XI freeae pending economic viaM-ity 516

piracy, terxoriaxn 88xeahatic expectationa noC generated 121xeaponaibility to eave 574~ ealbed xaiaang 204production lixnitation 521

seabed xnining eForta in limbo STOseabed regixne 498required xnodlfxcationa Hated 609

atraighC baaelinea and innocent paaaage420

auperior force over incompatible agree-manta 242

Reaolutxon II 526

temtorial aea regime 164underxxkned by not being in force 21universal accepCance 510, 550visit and aaarch 86

UN General Assembly 525UN General Assembly Seabed Declara-

Cion 525

UN Law of the Sea Of5ce 21UN Seabed Committee 155, 182, 1BBUN Seabed Tribunal 52

538

UNCLOS I, 1968 160, 164, 583UNCLOS II, 1960 M4UNCLOS IH: sec afro: UN Convention on

the LOS, 1982: 8, 10, 61, 16$, 167,168, '240, 267, 584, $86

consensus, rule of 520, 588isheries negotiations 4$5Informal ConlpoNte Negotiating Text

525

informal meetings 14Informal Single Negotiating Text

888

Kissinger formula 550negotiation process 58Tnegotiations 523North Korea 62

process non-responsive to concessi~$90

State Department Advisory Group 384statement on ocean space 320travaux preparatoires absent 14

UNCLOS-IV 137, 602UNCTAD 110United StatesOregon's fiaheri» laws 466U.S. Coast Guard $86U.S. Department of State 8U.S. marine fish harvests 1$9

U.S. NaCional Marine Fisheries Service158 see afro: National Oceanographic

and Atmospheric Administration NOAA!

U.S. Ocean Dumping Act 100United Kingdom 59, 86, 116, iTO, 286,

526, 549, 572, 590, 425, 461ocean policy 419seabed mining $70

United Nations 106, 429U.N. Charter 67

United StaCes 11, $0, 56, 8$, 86, 109,158, 1$9, 160, 162, 166, 167, 168, 169,171, 187, 269, 272, 27$, 276, 284, 286,287, 288, 294, 526, 550, $$2, 5$4, 549,3Tl, ST2, 574, 581, 582, $02, 408, 42$,429, 456, 458, 444, 461, 466, 475, 476,4TB 470! 48 1 489 491 494 601 602610

common heritage, no rejection of 106Congress $8$cooperation with Japan, Europe on~ eabed mining 544

toS~v~~ sieur» 476

14$

, Bering Sea 150law concerning marine mammals 476Marine Resources and Development Act

of 1966 585

OTEC Industry Council 451proposed changes to seabed decislon-mahing 606

ready to address convention anew 51salmon fisheri» 194, 454-6~ cientific establishment 588seabed mining regime, alternative STO~ eabed mining, DOMES 298seabed regime objections 604signatory of treaty on polar bears 421Stratton Commission Report 385submits draft articles on Che terrltorlalsea 6r transit passage. 162

tuna agreement with $. PaciSc states477

tuna treaty 491uncontrolled expansion of 6aheri» 160

United States NavyDeep Submergence program 585

United States ocean policy 419, 415, 414200 miles territorial sea claims 383

and the Reagan Administration 591Buab administration 594

Coastal Zone Management Act 586C4mgress $8Tcustomary inCernational law 419Declaration on the EES of March 10,

1985 $95

Defense Department 583Department of Commerce 584divided r»ponsibiliti» «ealrens pro-gram $86

freedom of navigaCion 414freedom of navigation pa~ 420Inter-Agency Advisory Group 384Interagency Tash Force 586International Decade of Ocean Explora-

tion $84

Jon» Act $96Merchant Marine $86, $94, 596National Advisory Conunission on theOceans and ACmosphere $84

national commerce vs ocean scienceemphasis at NAS 392

539

National Oceanic and AtmoaphericAdmiaiatration 584

national aecurity 582National Security Couacil 592aaval baaea SQ2

Nixon Adminiatration 585

ocean deemed unimportant SSBnuclear aubmarine 582

Polaria-aubmarine atraCagic deterrenceprioritiea liated SQB

protection and preaervaCioa of the ma-rine environment 595

Public Adviaory Commit Cee to the StateDepartment SM

Reagan adminiatration reevaluation ofUNCLOS III 592

rejection of Part XI 595Sea Grant Program: see: National SeaGrant Program

State Department Adviaory Group 584SSS

Stratlon Comxniaaion report 584tuna 594

UNCLOS III non-reaponaive to coacea-aiona 590

United Statea SenaCe 586UnlCed Statea- J apaneae Natural Reaour-

caa Commiaaion UJNR! 595Uaiveraity ot Chile 415Univeraity of Hawaii 4$0Uaiveraity of Miami SSSUaiverahy of Rhode ialaad 585Univeraity of the Air, Japan M5Univaraity of %aahington 281, SSS, 488Univeraity of % aahiagton Applied Phya-

<ca Lab S82

USA USSRUniform inCerpretation ot rulea of inter-natloaal law governing IBQ

USSR 107, 150, 255, 269, 52B, SM, 544,STO 572 574 417 421! 414! 454 455459, 445, 44B, 488-490

192B claim to all lande and iaianda inthe Arctic Ocean 420

Arctic environmental protection iawa421

Arclic legiala,Cion 421bilateral treaty with Canada 422conveationa Co prevent naval incidenta

at aaa 425

Council of Miniatera 418

fishing, Bering Sea 150Governmental Marine Special Service

422

ianocenC paaaage 418innocent paaaage in the Arctic 420Law of Che State Boundary, 24 Novem-

ber 1982 418

Miaiatry of Merchant Marine adminia-tration of N. Sea Route 421.

naval forcea 425Northern Sea Route 420projected acCiona with reapect to theNorthern Sea RouCe 421

ocean policy 419party to all marine environmental trea-

Ciea 422Ruiea of Navigation and Sojourn ofForeign Shipa, etc. 418

aalmon fiaheriea 194atraight baaeiinea in the Arctic 420

UN Naval Forcea initiative 425USSR Academy of Sciencea 8

Valdemaraen, J.W. 280Van Camp: acquired by MantruaC Group

Iadoneaia! 478Vancouver, Br. explorer 581Vanuatu 478

Veneauela 475, 477, 481, 494reflagging of US tuna fleet 478

Vienna ConveaCion on the Law of Trea-tiea iB4, 41T

Vietnam 40

Viait and aearchbilateral agreement for BBconaeat of Cha flag aCaCea 84

Vladivoatok 158

%aihee, John, Gov., Hawaii 451Wakelin, Jamea, Und. Sec. Commerce,

U.S. SSB

%ardle, C.S. 280Warioba, Joaeph 524Warahipa 104%aahingtoa, State of 141Waahiagton, D.C. 418, 451Waate diapoaai 95%atkina, Jamaa, Adm., Sec. Energy, U.S.

597

Wataoa, J.W. 280%acier, Miranda 415Walling, Conrad 291%elliagtoa Convention, 1989 240, 252,

540

268, 284, 288%eat Germany 1TO%eat Sea 66Whales: aee cetaceans%haling, prohibition 266%haling; political va scientific treatment

282Winnie the Pooh 15TWMU 110Woods Hole Oceanographic Inatitution

585, 596Working Group on the Law of the Sen

186World Administrative Radio Conferences

WARC! 78World fishing catcb 115World Maritime University 80World Meteorological Organisation

WMO! 74%orld Ocean Circulation Experiment

404World Ocean N'etch 404World %ide Fund for Nature, The 494Yakovlev, Y. 417Yalta 107Yellow Sen 66, 481, 467Yoneaawa, Kunio 127, 15-8, 145-4, 146,

148-65, 291Yonaei University 66Young, O. 29Zambia 554, 556copper producing nation 555minerals moat important export 555

Zeebrugge 69Zinc 555

Zuleta, Bernardo 554

541

1990 LSI EXECUTIVE BOARD

1990 STAFF

wfeaeor Lewis A!exanderept. ot Geography/Marine Affairsa!varsity of Rhode ls!and, Kingston

rofeasor R. P. Anand:hool of International Studiesiwaharlal Nehru UniversiCyew Delhi, India

roteaaor Richard Bi!derniveraity of %iacona!n Law Schoolladiaon, Wisconsin

rotesaor Alastair Couper~apartment of Maritime SCudiea~niversity of Walescardiff, United Kingdom

'rofeeaor Edgar Gold!ceans Institute of CanadaIa!ifax, Nova Scotia, Canada

!ean Jeremy HarrisonVm, S. Richardson School of LawJn!vereity of Hawai!, Honolulu

4a. Lee A. KimbellI%or!d Resources Institute

W'aehington, DC

Ambassador Tommy T. B. Koh4finiatry of Foreign AffaireSingapore

Professor Anatoly KolodkinSoviet Maritime Law AaeociationMoscow, USSR

Dr. John P. Craven, DirectorDr. Scott A!!en, Assoc, DirectorMs. Malvan Lam, AasC. Director

Dr Dale C KrauaeDivision of Marine SciencesUNESCO, Paris, France

Professor Mochtar Kusuma-AtmadjaIndonesia Center for the La» of the SeaPadjadjaran University School of LawBandung, Indonesia

Dr. Philip A. MajorMinistry of Agricu!Cure and FisherisaWe!!ington, New Zea!and

Professor Edward L. MilesInstitute for Marine StudiesUniversity of Washington, Seattle

Hia Excellency Satya NandanOffice of Ocean Affaireand Law of the SeaUnited Nations, New York

Professor Francisco Orrego VicunaInstitute of Internationa! StudiesUniversity of Chile, Santiago

Professor Louis SohnUnivereiCy of Georgia Law SchoolAthena, Georgia

Professor Tullio TreveaPermanent Mission of ICaly to the UNNew York, New York

Mr. Kunio Yoneaawa

Nippon Suiaan Kaieha, Ltd.Tokyo, Japan

Ms. Carol Stimeon, Adrnin./EditorMs. Eiiaabeth Glover, Publications Mgr.Ms. Philomene Veriaan, Membership Dir.