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Christopher R. Kelly, Law of the Sea: The
Jurisdictional Dispute over Highly Migratory Species of
Tuna, 26 Colum. J. Transnat'l L. 475 (1988)

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Law of the Sea: The Jurisdictional Dispute

over Highly Migratory Species of Tuna


The question of who enjoys legal entitlement to harvest the vast

tuna resources of the Pacific Ocean has emerged in recent years as a
major issue in U.S. fisheries policy and is a controversial aspect of the
current administration's interpretation of the law of the sea. This
article examines the often conflicting treatment of tuna under U.S.
and international law. In particular, it focuses on the legal regime
governing resource rights to the tuna stocks of the South and Western
Pacific region.
Tuna represents one of the world's most valuable fisheries
resources. In the United States, tuna accounts for a substantial seg-
ment of the domestic fishing industry and is a major consumer food
item: in recent years, U.S. fishermen have landed approximately one
tenth of the world's tuna catch, and U.S. consumers have accounted
for over one third of the world market. In the resource-poor island
countries of the South and Western Pacific, tuna is in many instances
the only economically exploitable natural resource and consequently
presents the only possibility for economic development in the region.
The present conflict surrounds the question of who may right-
fully exploit tuna resources found within 200 miles of a state's coast-
line. Virtually all of the world's coastal states-with the notable
exception of the United States-take the position that a coastal state
enjoys sovereign rights over all fisheries resources within the 200-mile
* A.B., 1982, J.D., 1987, Harvard University. Mr. Kelly is currently an associate with
Cleary, Gottlieb, Steen & Hamilton in New York. He wishes to express his gratitude to
Myron Nordquist, Esq. for his helpful comments on an earlier draft of this article.

exclusive economic zone (EEZ).' The United States, however, neither

asserts nor recognizes coastal state sovereign rights over tuna
resources located beyond the coastal state's territorial sea.2
Although this jurisdictional dispute has been a source of consid-
erable controversy for many years, recent political and legal develop-
ments have brought the dispute into sharper focus. On April 2, 1987,
representatives of the United States and twelve Pacific nations signed
a new multilateral tuna agreement (the Fisheries Treaty),3 which the
U.S. Senate ratified on November 6, 1987.1 The agreement sets forth
new principles regarding the treatment of the fisheries stocks off the
coasts of the Pacific island states, specifically the terms under which
U.S. fishermen may gain access to those stocks. The treaty's signing
may represent a turning point in the evolution of U.S. tuna policy.
Although the Fisheries Treaty is a milestone in the continuing
conflict over U.S. tuna policy, it is by no means a final settlement of
all disputes over tuna jurisdiction. First, its relatively short five year
term5 suggests that continued U.S. unwillingness to recognize explic-
itly coastal state sovereign rights over tuna resources may lead to sim-
ilar jurisdictional disputes in this region in the future. Second, not all
of the Pacific island states are signatories to the new treaty, so the
dispute persists as to non-signatories. Third, and perhaps most
important, the conflict over tuna jurisdiction has not been settled by
treaty in other tuna fishing regions.6 Hence, the United States could
still reject claims to sovereign rights over tuna resources by coastal
states not covered by the Fisheries Treaty or a similar treaty.
This article examines U.S. policy on tuna and finds it flawed in
several respects. The U.S. position is based on the argument that
tuna, as a highly migratory species that travels through more than
one jurisdiction, should not be included within the 200-mile coastal
state EEZ jurisdiction that applies to fisheries resources in general.
This argument is criticized as being contrary to any plausible reading
of the 1982 United Nations Convention on the Law of the Sea (LOS
Convention), 7 the relevant provisions of which codify existing cus-
tomary international law with respect to fisheries. Moreover, the U.S.

1. See infra text accompanying notes 19-30.

2. See infra section V.
3. Treaty on Fisheries Between the Governments of Certain Pacific Island States and the
Government of the United States of America, Apr. 2, 1987, Stat.- , T.I.A.S.
No. , U.N.T.S. , reprintedin 26 I.L.M. 1048 (1987) [hereinafter Fisheries
4. See 133 CONG. REC. S15,953-54 (daily ed. Nov. 6, 1987).
5. Fisheries Treaty, supra note 3, at Annex II, sched. 2.
6. See generally infra note 100.
7. United Nations Convention on the Law of the Sea, opened for signature Dec. 10,

position is based on an exaggerated estimate of the political strength

of U.S. tuna fishing interests, as well as a fundamental misunderstand-
ing regarding the perceived incompatibility between coastal state enti-
tlement and regional and international cooperation in resource
conservation. In its attempt to protect the domestic tuna fishing
industry, the United States fails adequately to consider the conse-
quences of its current tuna policy on U.S. influence in a strategically
important region of the world. Finally, a striking disparity already
exists between the practice of U.S. firms and the U.S. government, on
the one hand, and the official position as reflected in U.S. legislation,
on the other. A number of U.S. firms have directly negotiated access
agreements with certain South Pacific states, and even the U.S. gov-
ernment has softened its position with respect to tuna in the recently
negotiated treaty.
These observations lead to the conclusion that U.S. tuna policy
should be revised. The U.S. policy on tuna should be put in step with
the fisheries regime advocated by the island states in the Pacific region
and reflected in the LOS Convention. Those aspects of U.S. fisheries
legislation that support the exemption of tuna from coastal state EEZ
jurisdiction should be repealed, and U.S. law and policy should
endorse the treatment given to highly migratory species under the
LOS Convention. The misguided attempt to single out tuna resources
and subject them to a special regime should be abandoned as contrary
to what most states recognize as international law, the foreign policy
interests of the United States, and even the long-term interests of the
U.S. tuna industry.
The remainder of this article is divided into six sections. Section
II provides some of the necessary background information on both
the worldwide tuna industry and the Pacific island nations that are at
the center of the present controversy. The next three sections
examine the issue of resource rights to the tuna from three distinct
legal perspectives. Section III discusses the treatment of these
resources under both customary international law and the LOS Con-
vention. Section IV examines the legal and political stance adopted
by the island states with respect to tuna; special emphasis is given to
recent efforts by these states to husband their resources by a variety of
means, including regional fisheries organizations, licensing agree-
ments with foreign fleets, and joint ventures. Section V presents the
conflicting U.S. legal position on tuna, and surveys U.S. domestic leg-
islation that implements and enforces the position that tuna within

1982, - U.N.T.S.-, U.N. Doe. A/CONF.62/122, reprinted in 21 I.L.M. 1261

(1982) [hereinafter LOS Convention].

the EEZ of a coastal state is nevertheless outside the jurisdiction of

that state. Section VI criticizes current U.S. policy on the grounds
that it is neither supportable under generally accepted principles of
international law nor politically advisable. Section VII provides a
brief conclusion.


Tuna is one of the world's most important and valuable fisheries

resources. The tuna industry is of particular importance to the
United States, both because U.S. distant-water fishing fleets harvest a
significant portion of the world's tuna catch, and because the United
States represents the world's largest market for tuna.8 Tuna is also
vitally important to the developing island states of the Pacific region,
many of which have staked their long-range economic development
plans in large part on exploiting tuna resources.
The vast majority of the world's tuna is found in the temperate
waters of the Atlantic, Pacific, and Indian Oceans, generally within a
band stretching roughly 20 degrees north and south of the equator. 9
The entire Pacific region accounts for approximately 68% of the
world tuna harvest, with the West Central Pacific alone contributing
36% of the total catch. 10 The Pacific region is primarily fished by
large, capital intensive, distant-water fishing fleets.11 Japanese and
U.S. distant-water fleets dominate in the East and West Central
Pacific regions (from which almost half of the world tuna harvest
comes): boats from those countries net half of the tuna landings in
these regions, with Indonesian and Filipino fleets also taking large
8. In 1984, the total world tuna catch was 3.1 million metric tons; of that total, U.S.
fisherman landed 227 metric tons, or 9 percent of the world catch. Statistics compiled by the
author from FAO Yearbook of FisheryStatistics Catches and Landings, 1984, vol. 58, Table B
(Food and Agriculture Organization of the United Nations, Rome, 1986). See also King &
Bateman, The Economic Impact of Recent Changes in the U.S. Tuna Industry, California Sea
Grant College Program Working Paper no. P-T-47, 10 (1985) (unpublished paper on file with
the Columbia Journalof TransnationalLaw). The size of the world retail market for canned
tuna products alone was estimated at $1.5 billion in 1984. Id. at n.5. (All monetary amounts
stated in this article are in U.S. dollars).
9. King & Bateman, supra note 8, at 12.
10. Complied by the author from data contained in FAO Yearbook ofFishery Statistics-
Catches and Landings, 1984, vol. 58, Table C (Food and Agriculture Organization of the
United Nations, Rome, 1986).
11. Since tuna stocks off the U.S. coast are relatively poor, fishermen must rely on the
more productive distant-water fishing grounds of the Pacific. King and Bateman estimate that
in 1984, U.S. fishermen took 17,350 short tons of tuna (primarily albacore) from sea areas
within 200 miles of the U.S. coast, whereas total U.S. catch from all ocean areas was approxi-
mately 290,000 short tons. In other words, less than six percent of all United States tuna
landings was from United States waters. See King & Bateman, supra note 8, at 10 n.9 and
accompanying text.

catches. 2

A. The Pacific Region

As indicated above, the Pacific region is currently the single most
important source of the world's tuna. Moreover, at least one com-
mentator has suggested that the West Central Pacific region, which
contains vast and presently underutilized stocks, holds great promise
for future exploitation. 13 The economic importance of the region, and
its fisheries resources, is expected to increase in the future, with poten-
tially far reaching consequences for both the island states and the dis-
tant-water fishing nations that rely on the Pacific tuna stocks for their
domestic tuna industries.
The archipelagic states of Polynesia, Micronesia, and Melanesia
are in many respects unique. They are generally extremely small in
area, isolated from one another, sparsely populated, and economically
underdeveloped. Setting aside Papua New Guinea (by far the largest
and most populated of the group), fifteen states or territories in the
region have a combined population of only 1.5 million distributed
over a land area of less than 27,000 square nautical miles. Most of the
countries rely heavily, and perhaps indefinitely, on foreign aid, and
they have some of the world's lowest per capita GNPs. Virtually all
of the states are or at one time were dependencies, territories, or colo-
nies of the major Western powers, including the United States, the
United Kingdom, and France. Table 1 contains a summary of some
key demographic statistics for sixteen Pacific island states.
Although these countries are geographically small and economi-
cally, politically, and militarily weak, they enjoy a claim to vast sea
resources. Partly as a result of the archipelagic nature of these states,
their EEZs encompass an enormous part of the Pacific Ocean: the
states listed in Table 1 claim extended sea jurisdiction over some 5.9
million square nautical miles of the Pacific Ocean. In some cases, the
ratio of EEZ area to land area reaches 30,000:1. This jurisdictional
claim is of special importance to the Pacific island states, for the tuna
in their offshore waters potentially represents their most valuable eco-
nomic resource; the ability of the islands to exploit these tuna
resources has been viewed by some observers as the key to future eco-
nomic development in the region.
12. Statistics compiled by the author from the FAO Yearbook of Fishery Statistics-
Catches and Landings, 1984, vol. 58, Table B, passim (Food and Agriculture Organization of
the United Nations, Rome, 1986).
13. See, e.g., Doulman, The Tuna Industry in the Pacific Islands Region: Opportunities
for Foreign Investment, Pacific Islands Development Program (1985) (unpublished paper on
file with the Columbia Journalof TransnationalLaw).

Table 1: Population, Land and 200-mile EEZ Areas

for Selected South Pacific Countries*
Land Area EEZ Area
Population (square (square
(year in nautical nautical EEZ Area/
Country parentheses) miles) miles) Land Area

American Samoa 30,000 ('77) 57 114,000 2,000:1

Cook Islands 18,000 ('75) 70 556,100 7,944:1
Fiji 618,000 ('79) 5,326 386,900 73:1
French Polynesia 155,000 ('80) 1,145 1,385,200 1,210:1
Kiribati 58,000 ('80) 198 965,000 4,874:1
Nauru 7,000 ('77) 6 92,800 15,467:1
New Caledonia 139,000 ('80) 5,567 382,400 69:1
Niue 3,000 ('80) 75 87,300 1,164:1
Papua New Guinea 3,006,000 ('80) 134,586 684,200 5:1
Solomon Islands 215,000 ('78) 8,682 458,400 53:1
Tokelau 1,000 ('76) 3 91,300 30,433:1
Tonga 90,000 ('76) 203 158,400 780:1
Tuvalu 7,000 ('79) 7 211,500 30,214:1
Vanuatu 112,000 ('79) 4,303 179,900 42:1
Wallis & Futuna 9,000 ('76) 80 71,900 899:1
Western Samoa 151,000 ('76) 828 38,100 46:1
All Countries 4,619,000 161,136 5,863,400 36:1
197 (Table 7.1) (1985). EEZ Area/Land Area ratio was computed by

In recent years, the region has attracted the attention of U.S.

foreign policy makers, as relations with these small but strategically
located allies have deteriorated because of the continuing dispute
over tuna fishing rights. 14 However, before examining this dispute
and its larger geopolitical consequences, a brief discussion of the inter-
national law of fisheries is in order.



Until the middle of this century, the principle of high seas free-
dom was a dominant feature of the law of the sea. With the exception
of a narrow band of sea directly contiguous to a state's land territory,
the world's oceans had long been considered beyond the scope of
national jurisdiction.' 5 This view of freedom of the high seas
14. See, e.g., S.EXEC. REP. No. 100-9, 100th Cong., 1st Sess. 2 (1987). The deteriora-
tion in relations is also attributable to other factors, such as the resistance of governments in
the region to passage of U.S. nuclear-powered warships.
15. Beyond the territorial sea was a region known variously as the "high seas" or "inter-

originated in the 17th century with Hugo Grotius, whose conception

of a free sea ultimately prevailed over competing formulations in
which sovereignty over the oceans would be apportioned among the
major coastal state powers. 16
A corollary of the Grotian view was the notion that no state
could claim exclusive dominion over the ocean's natural resources.
Although a state could claim sovereign rights over fish located within
its territorialsea (and the concomitant right to exclude other states
from harvesting those resources), the principle of freedom on the high
seas includes the right of all nations to fish there.' In short, fish were
regarded under international law as res nullius' 8-- the property of the
person who harvested them.

A. Development of 200-Mile Fisheries or Economic Zones

This general rule has lost much of its force since the LOS Con-
vention adopted the EEZ regime. Under the EEZ regime, a coastal
state may claim exclusive sovereign rights to all resources within 200
nautical miles of the coastal baseline. 9 As a result, much of the sea
territory that was formerly considered high seas-and a large propor-
tion of the world's commercially significant fishing grounds-is now
within coastal state EEZ jurisdiction. This expansion of coastal state
jurisdiction rapidly evolved during the post-World War II period as a
radical departure from the prior principle of freedom of the high seas.
The nature of coastal state claims to jurisdiction in the 200-mile
zone varied from state to state. Some states viewed the zone as an
extension of the territorial sea, with the full panoply of rights associ-
ated with a territorial sea. 20 Other states claimed only a 200-mile fish-
national waters," whose judicial character was anational and to which no state could claim
exclusive dominion or control. See, e.g., 2 G. HACKWORTH, DIGEST OF INTERNATIONAL
LAw 651-58 (1941); 1 L. OPPENHEIM, INTERNATIONAL LAW 589 (H. Lauterpacht 8th ed.
1955) ("The term 'freedom of the open sea' indicates the rule of the Law of Nations that the
open sea is not, and never can be, under the sovereignty of any State whatever."); Convention
on the High Seas, Apr. 29, 1958, art. 2, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 11.
(1635). The two works are compared in 1 L. OPPENHEIM, supra note 15, at 584-87.
17. See Convention on the High Seas, supra note 15, art. 2(2); 1 L. OPPENHEIM, supra
note 15, at 618. The freedom to fish on the high seas was, however, subject to the proviso that
states exercise such freedom with due regard to the rights and interests of other states. See
Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29,
1958, art. 1, 17 U.S.T. 138, T.I.A.S. No. 5969, 559 U.N.T.S. 285.
18. Literally, "a thing belonging to no one." Res communes is a similar concept which
applies to property held in common by all mankind.
19. LOS Convention, supra note 7, arts. 56 and 57.
20. Until roughly the middle of this century the territorial sea was considered to extend
to a limit of three nautical miles from a state's coastline. Since the territorial sea is considered
an extension of a coastal state's land territory, the coastal state enjoys virtually exclusive

eries zone, with rights to harvest, manage, and conserve the living
resources located therein. The majority of states, however, claimed
an exclusive economic zone (EEZ) in which the coastal state enjoys
sovereign rights over both living and non-living resources.
The LOS Convention adopts the latter view of the 200-mile
zone.21 This view originated from a number of unilateral actions
taken by the United States and several Latin American countries dur-
ing the 1940s and 1950s.22 The United States in 1945 made the first
significant extension of coastal state control over what had previously
been considered the high seas. By proclamation, President Truman
unilaterally asserted U.S. jurisdiction over continental shelf and fish-
eries resources in the seas contiguous to the United States.23 Other
coastal states, principally located in the developing world, quickly
seized upon the U.S. precedent and took analogous actions. 24

authority over it, subject only to the right of innocent passage for foreign vessels. See Conven-
tion on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, arts. 14-17, 15 U.S.T.
1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205. In recent years, however, a growing consensus has
set the breadth of the territorial sea at a maximum of 12 nautical miles. See, e.g., LOS Con-
vention, supra note 7, art. 3.
21. See LOS Convention, supra note 7, Part V, arts. 55-75.
22. For an overview of the historical roots of the 200-mile zone, see Hollick, The Origins
of 200-mile Offshore Zones, 71 AM. J. INT'L L. 494 (1977).
23. See Proclamation No. 2667, 3 C.F.R. 67 (1943-48); Proclamation No. 2668, 3 C.F.R.
68 (1943-48); see also Exec. Order No. 9633, 3 C.F.R. 437 (1943-48).
24. In 1945, Mexico claimed continental shelfjurisdiction and established a fisheries con-
servation zone. See Presidential Declaration with Respect to Continental Shelf, Oct. 29, 1945,
reprintedin U.N. Doe. ST/LEG/SER.B/I, at 13 (1951) (Mexico). The following year, Argen-
tina and Panama proclaimed jurisdiction over their continental shelves as well as the supeja-
cent waters. See Presidential Decree No. 14,708, Oct. 11, 1946, reprinted in U.N. Doc. ST/
LEG/SER.B/1, at 4 (1951) (Argentina); Decree No. 449, Dec. 17, 1946, art. 3, reprinted in
U.N. Doc. ST/LEG/SER.B/1, at 16 (1951) (Panama). A year later, Chile and Peru claimed
"patrimonial seas" extending 200 miles offshore in which they asserted exclusive jurisdiction
over the living and non-living resources. See Presidential Declaration Concerning Continental
Shelf, June 23, 1947, reprintedin U.N. Doe. ST/LEG/SER.B/, at 6 (1951) (Chile), and in 4
M. WHITEMAN, DIGEST OF INT'L LAW 794-96 (1965); Presidential Decree No. 781, Aug. 1,
1947, reprintedin U.N. Doc. ST/LEG/SER.B/1, at 16 (1951) (Peru), and in M. WHITEMAN,
supra, at 797-98. Ecuador took similar action in 1951. See Congressional Decree No. 803,
Feb. 21, 1951, 756 Ano III Registro Oficial 621920 (1951), reprintedin U.N. Doc. ST/LEG/
SER.B/l/Add.1, at 300 (1952) (Ecuador), and in 4 M. WHITEMAN, supra, at 799-800. By
1952, Chile, Peru and Ecuador had jointly issued the Santiago Declaration, in essence a unilat-
eral extension by those three states of exclusive sovereignty over the sea to a distance of 200
miles. Although rights of innocent passage were preserved, the new zone was tantamount to
an extension of those states' territorial seas. See Declaration on the Maritime Zone, Aug, 18.
1952, Chile-Ecuador-Peru, - U.N.T.S.- , reprinted in U.N. Doe. A/AC.135/10/
Rev. 1, at 11-12 (1968). This agreement between Chile, Ecuador, and Peru was signed in Santi-
ago at the First Conference on the Exploitation and Conservation of the Maritime Resources
of the South Pacific. For similar unilateral actions by Latin American and African countries,
see, eg., The Declaration of Montevideo on Law of the Sea, May 8, 1970, U.N. Doc. A/
AC.138/34 (1970), reprinted in 9 I.L.M. 1081 (1970); Declaration of the Latin American
States on the Law of the Sea, U.N. Doc. A/AC.138/28 (1970), reprinted in 10 I.L.M. 207

Setting aside the validity under international law of those unilat-

eral acts when initially made, 25 a broad consensus developed over
time, at least among the nations of the developing world, regarding
the right of coastal states to extended sea jurisdiction. By the time of
the first session of the Third United Nations Conference on the Law
of the Sea (UNCLOS III), convened in Caracas in 1974, it was obvi-
ous that the new law of the sea treaty would contain provisions relat-
ing to what was, by then, a broadly accepted notion of extended sea
jurisdiction for coastal states.2 6 All that remained were the long and
arduous negotiations to reach agreement regarding the specific juridi-
cal nature of the EEZ.2 '
By 1982, the provisions of the final draft of the LOS Convention
relating to the EEZ were largely uncontroversial and were considered
by most participants, as well as by most international legal scholars,
as codifying customary international law with respect to such zones.28

(1971); Declaration of Santo Domingo, June 9, 1972, 27 U.N. GAOR Supp. (No. 21) at 70,
U.N. Doe. A/AC.138/80 (1972), reprinted in 11 I.L.M. 892 (1972); Organization of African
Unity Resolution on Fisheries, June 1971, reprintedin 1 S. ODA, THE INTERNATIONAL LAW
OF THE OCEAN DEVELOPMENT 362, 363 (1972); Resolution on the Permanent Sovereignty of
African Countries Over Their Natural Resources, reprintedin S. ODA, supra, at 363-64.
25. See, e.g., Fisheries Jurisdiction (W. Ger. v. Ice.), 1974 I.C.J. 175, 196 (Judgment of
July 25) ("A coastal State entitled to preferential rights is not free, unilaterally and according
to its own discretion, to determine the extent of those rights."); Fisheries Jurisdiction (U.K. v.
Nor.), 1951 I.C.J. 116, 132 (Judgment of Dec. 18) ("The delimitation of sea area has always an
international aspect; it cannot be dependent merely upon the will of the coastal State as
expressed in its municipal law. Although it is true that the act of delimitation is necessarily a
unilateral act, because only the coastal State is competent to undertake it, the validity of the
delimitation with regard to other states depends upon international law.").
26. At the first session of UNCLOS III, over 100 states spoke in favor of some version of
an EEZ. See 1 Official Records of the Third United Nations Conference on the Law of the Sea
59, U.N. Doc. A/CONF.62/33 (1975); id. vol. 2, at 170.
27. The developing nations originally argued for an extension of the territorial sea to the
200-mile limit, while the industrialized states wished to preserve the zone essentially as high
seas, with certain special rights granted to the coastal states. The compromise that emerged
was a unique zone that was neither territorial sea nor high seas in nature.
ace, at xx (1984) ("[W]ith the exception of the part relating to deep seabed mining, the provi-
sions of the [LOS] Convention have become the best evidence of the emerging new
international law of the sea, and have become the law of the United States on the subjects
covered by them."). See also Statement of the President accompanying the EEZ Proclamation,
reprintedin 22 I.L.M. 461, 464 (1983) (recognizing that many of the Convention's provisions
"generally confirm existing maritime law and practice and fairly balance the interests of all
states;" noting that with respect to traditional uses of the sea, "the United States will recognize
the rights of other states in the waters off their coasts, as reflected in the Convention, so long as
the rights and freedoms of the United States and others under international law are recognized
by such coastal states"). See generally Hudson, Fishery and Economic Zones as Customary
InternationalLaw, 17 SAN DIEGO L. REv. 661 (1980).
It is also worth noting the unusual degree of consensus achieved at UNCLOS III, further
supporting the argument that the LOS Convention can be taken as reflective of customary
international law. The United States was virtually the only major developed nation not to sign

The International Court of Justice (ICJ) has also affirmed the validity
of a 200-mile zone. In the Gulf of M aine Case,2 9 the ICJ was called
upon to draw a boundary line delimiting the continental shelf and the
200-mile exclusive fisheries zone between Canada and the United
States in the Gulf of Maine. In its opinion, the ICJ noted in dictum
that a 200-mile EEZ was "consonant at present with general interna-
tional law on the question."3

B. Fishing Rights and the EEZ under the LOS Convention

Codification of the rights and duties associated with the EEZ is
found in articles 55 to 75 of the LOS Convention. The EEZ is defined
as "an area beyond and adjacent to the territorial sea" 31 whose maxi-
mum extent shall not exceed 200 nautical miles.3 2 Moreover, the con-
vention makes clear that all activities in the EEZ are governed by the
specific legal regime set forth in Part V of the convention, which in
twenty-one separate articles comprehensively describes the rights and
responsibilities of the coastal state and other states within the
Article 56 states that, within the EEZ, a coastal state enjoys:
sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether liv-
ing or non-living, of the waters superjacent to the sea-bed
and of the sea-bed and its subsoil, and with regard to other
activities for the economic exploitation and exploration of
the zone, such as the production of energy from -the water,

the Convention, and the principal reason for not signing was the impasse reached with respect
to the provisions concerning mining the deep seabed. See LOS Convention, supra note 7, Part
XI, arts. 133-91. The United States did not seriously dispute the provisions relating to the
EEZ. It therefore appears safe to treat the LOS Convention's formulation of the EEZ as a
restatement of existing customary international law on the matter.
29. Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Can. v. U.S.), 1984 I.C.J. 246 (Judgment of Oct. 12).
30. Id. at 294. Only ten years earlier, the ICI had been asked to pass on the legality of
Iceland's unilateral claim to a.50-mile exclusive fisheries zone. Fisheries Jurisdiction (W. Ger.
v. Ice.), 1974 I.C.J. 175 (Judgment of July 25). The ICJ recognized as customary international
law an exclusive fisheries zone of no more than 12 miles, with certain preferential fishing rights
for the coastal state beyond that zone. It noted that several states had in fact declared fisheries
zones extending beyond 12 miles, and that similar proposals were under consideration at the
Law of the Sea Conference, but viewed those events as indicative of the direction of the law's
development rather than as a reflection of customary international law as it stood in 1974. Id.
at 192.
31. LOS Convention, supra note 7, art. 55.
32. Id art. 57. The EEZ is treated as sui generis, not merely as an extension of the
territorial sea nor as an overlay on the high seas.
33. Id arts. 55-75, Part V, Exclusive Economic Zone.

currents, and winds .... 4

In addition to the sovereign rights over natural resources, the coastal
state also has jurisdiction with regard to the protection of the marine
Under the LOS Convention, a coastal state enjoys the basic legal
entitlement to all living resources-including fish-located within its
EEZ. Articles 61 and 62 set forth the rights and responsibilities of the
coastal state and other states with respect to the conservation and
utilization of the resources. The coastal state is to determine, based
upon the best available scientific data, the maximum allowable catch
within its EEZ in order to maintain fish populations at a level that
will produce the "maximum sustainable yield" for the various har-
vested species.36 Once the allowable catch has been determined, the
coastal state is under an obligation to promote the optimum utiliza-
tion of the living resources.37 The coastal state may determine its own
capacity to harvest resources within the EEZ. In the event that the
coastal state does not have the capacity to harvest the entire allowable
catch, it must grant other states access to the surplus of the allowable
Article 62, paragraph 4 sets forth the terms and conditions the
coastal state may attach to its grant of access to other states to fish in
its EEZ. In general, nationals of other states must comply with the
conservation measures and other terms and conditions established in
the municipal laws and regulations of the coastal state (at least to the
extent that such municipal laws are not inconsistent with the Conven-
tion). Such conditions may include, inter alia, "licensing of fishermen,
fishing vessels and equipment, including payment of fees and other
forms of remuneration, which, in the case of developing coastal
States, may consist of adequate compensation in the field of financing,
equipment and technology relating to the fishing industry" 39 and
"terms and conditions relating to joint ventures or other cooperative
arrangements." 4 These provisions make clear a coastal state's right

34. Id. art. 56, para. l(a).

35. Id art. 56, para. l(b).
36. Id. art. 61, paras. 1-3.
37. Id. art. 62.
38. Id. art. 62, para. 2.
39. Id. art. 62, para. 4(a).
40. Id. art. 62, para. 4(i). Other permissible conditions include specification of the spe-
cies, quotas, age and size of fish that may be caught; the seasons and areas of fishing; types of
gear and fishing vessels that may be used; and the information required of fishing vessels,
including catch and effort statistics and vessel position reports. Furthermore, the coastal state
may require the conduct of specified fisheries research programs, the placing of observers or
trainees on board vessels, the landing of all or any part of the catch in the ports of the coastal

under the LOS Convention to license foreign fleets or to engage in

joint ventures with foreign parties in the event that the coastal state is
unable by itself to exploit fully the living resources located within its
Additional rules are made applicable to certain resources, includ-
ing stocks occurring within the EEZs of two or more states (article
63), highly migratory species (article 64), marine mammals (article
65), anadromous stocks (article 66), and catadromous species (article
67). Article 64 addresses highly migratory species of fish, of which
tuna is the most important commercially. 41 That article reads, in its
entirety, as follows:
1. The coastal State and other States whose nationals
fish in the region for the highly migratory species listed in
Annex I shall co-operate directly or through appropriate
international organizations with a view to ensuring conser-
vation and promoting the objective of optimum utilization
of such species throughout the region, both within and
beyond the exclusive economic zone. In regions for which
no appropriate international organization exists, the coastal
State and other States whose nationals harvest these species
in the region shall co-operate to establish such an organiza-
tion and participate in its work.
2. The provisions of paragraph 1 apply in addition to
the otherprovisions of this Part [articles 55-75, relating to the
Paragraph 1 sets forth the special obligations of the coastal state
and other states with respect to highly migratory species. The essence
of these obligations is that all states that fish for such species within a
region (whether or not actually within the EEZ) must cooperate
through an appropriate international organization toward conserving
and promoting the optimum utilization of such species within the
region. The reason for this special additional requirement for highly
migratory species stems from the fact that by their very nature they
may travel through the fisheries jurisdictions of more than one state.

state, and the training of personnel and the transfer of fisheries technology to enhance the
coastal state's capability of undertaking fisheries research. Enforcement procedures are also
contemplated. Id. art. 62, paras. 4(b)-(h), 0), (k).
41. The term "highly migratory species" is not defined in the Convention itself, however,
Annex I thereto provides a list of highly migratory species including eight different species of
tuna in addition to certain species of mackerel, marlins, sail-fishes, swordfish, pomfrets, sau-
ries, dolphins, oceanic sharks, and cetaceans.
42. LOS Convention, supra note 7, art. 64 (emphasis added).

In the absence of a requirement of international cooperation, the pos-

sibility would exist that several coastal states might adopt inconsistent
or counterproductive conservation policies.
Paragraph 2 makes explicit the fact that the requirements of
paragraph 1 are in addition to the other provisions pertaining to the
EEZ. Article 64 specifies the additional requirements placed upon
states to ensure proper conservation measures for these unique spe-
cies; by doing so, article 64 may be thought of as an overlay to the
basic EEZ provisions, including the grant of coastal state sovereignty
contained in article 56.
The development of the concept of an EEZ occurred over a rela-
tively brief period of time and with little fanfare. However, the impli-
cations of the 200-mile zone are indeed far-reaching. The EEZ
jurisdiction of the United States alone amounts to some 2.2 million
square nautical miles, or roughly 95% of all U.S. land territory; if all
coastal states were to claim a full 200-mile EEZ jurisdiction, 105 mil-
lion square nautical miles, or 36% of the earth's ocean surface, would
be covered. Not since the discovery of the New World in the fifteenth
century has so great an amount of the earth's surface suddenly come
under national jurisdiction. As was the case then, these sovereign
claims have inevitably engendered disputes as to the rightful owner-
ship of resources located in the areas involved. The next two sections
examine the present controversy between the United States and the
island states of the Pacific regarding legal entitlement to the tuna
resources located within the EEZs of the Pacific region.


Despite some differences, the Pacific island states share a com-

mon philosophy with regard to tuna law and policy.' For purposes of
the present discussion, these states include the Cook Islands, the Fed-
erated States of Micronesia (FSM), Fiji, Kiribati, the Marshall
Islands, Nauru, Niue, Palau, Papua New Guinea (PNG), the Solo-
mon Islands, Tonga, Tuvalu, Vanuatu, and Western Samoa.
All of these states have asserted EEZ or fisheries jurisdiction to
the 200-mile limit, and nine have signed the LOS Convention.45
43. See infra text accompanying notes 117-127 for a critique of the U.S. view that article
64 represents an exemption for tuna from coastal state jurisdiction.
44. For an excellent, if somewhat dated, survey of the specifics of island legislation on the
subject, see Krueger & Nordquist, The Evolution of the 200-Mile Exclusive Economic Zone.
State Practicein the Pacific Basin, 19 VA. J. INT'L L. 321 (1979).
45. For citations to municipal EEZ legislation or proclamations, see Krueger & Nord-
quist, supra note 44; Forum Fisheries Agency, Workshop on the Harmonization and Coordina-
tion of FisheriesRegimes andAccess Agreements, U.N. Doe. FL/WPSCP/82/1 (1982).

Closely tracking the language of article 56 of the LOS Convention,

the EEZ legislation of Fiji is representative, claiming a 200-mile zone
in which Fiji enjoys sovereign rights "for the purpose of exploring and
exploiting, conserving and managing the natural resources, whether
living or non-living of the seabed and subsoil and the superjacent
waters."'4 6 Nothing in the laws of these states in any way suggests
that tuna are excluded from EEZ jurisdiction. Indeed, since tuna are
the only economically exploitable resource located within the EEZs of
most of the island states, an EEZ jurisdiction that excluded tuna
would be rather meaningless. The raisond'etre for establishing EEZs
in these states was to expand national jurisdiction over the most
important natural resource in the region, a natural resource that
many feel holds the key to future economic development there.
The fisheries regime established by the domestic fisheries legisla-
tion of these states is largely in accord with the regime contemplated
by the LOS Convention. In general, their municipal legislation allows
the island states to set the amount that they might reasonably be able
to harvest in their EEZs using domestic fisheries industries, with any
remainder being made available to foreign fishing fleets. Given the
fact that the Pacific island domestic fishing industries are in their
infancies, the vast majority of the fish taken in the region are har-
vested by foreign fleets.47 Consistent with article 62 of the LOS Con-
vention, the coastal states have established a wide variety of economic
terms on which foreign fishing may be allowed, including various
licensing fee4 l and joint venture arrangements.
Virtually all of the states impose civil or criminal sanctions for
illegal foreign fishing within their EEZs. These sanctions generally
include such measures as impounding vessels and seizing the catch, 49
fining the vessels' owners, and even imprisoning crew members,
when foreign nationals are found fishing in the region without having
paid the appropriate fees or otherwise having satisfied the require-
ments of the municipal fisheries legislation. 50
46. See Marine Spaces Act of 1977 (Bill No. 26), § 9(2).
47. In 1984 the fishing fleets of five Pacific states or territories-Fiji, Kiribati, the Pacific
Island Trust Territories, Papua New Guinea (PNG), and the Solomon Islands-together
accounted for less than five percent of the total catch in the Central Pacific region. Statistics
compiled by author from the FAO Yearbook of FisheryStatistics--CatchesandLandings, 1984,
vol. 58, Table B, passim (Food and Agriculture Organization of the United Nations, Rome,
48. See Ridings, Resource Use Arrangements in Southwest Pacific Fisheries, Pacific
Island Development Program, East-West Center, 5 (1983). These fees may be based on fiat
amounts per boat, on a percentage of the catch, or indexed to the world price of tuna.
49. But cf.LOS Convention, supra note 7, art. 73, para. 3 (prohibiting prison terms for
violations of municipal fisheries laws).
50. Two recent seizures of U.S. tuna fishing vessels illustrate the seriousness with which

Moreover, recognizing their shared interests in managing and

exploiting their fisheries resources, and mindful of their relative weak-
ness as individual states, the island nations of the South Pacific have
joined together in a number of regional organizations that have
allowed them to present a united front on such issues as tuna resource
rights. The most important of these regional organizations is the
South Pacific Forum, 51 a loose alliance dedicated to promoting eco-
nomic development and regional cooperation among countries in the
area, of which the Forum Fisheries Agency (FFA) is a sub-agency

the island states view their fisheries laws but also, ultimately, the weakness of their enforce-
ment mechanisms. In February 1982, the United States-registered purse seiner Danica was
seized by fisheries officials off PNG for fishing in PNG's EEZ without a valid license. The
ship's captain was convicted and fined under section 12 of the Fisheries Act and a local court
ordered that the vessel be forfeited to the state. Similarly, in June 1984, another United States-
registered purse seiner, the Jeannette Diana, was seized off the coast of the Solomon Islands.
The captain and San Diego-based owner of the ship were convicted and fined approximately
$50,000; the ship, the illegal catch, the fishing gear, and all equipment on board were ordered
forfeited to the state. The facts relating to these seizures are detailed in Tsamenyi, The South
Pacific States, the U.S. and Sovereignty over Highly Migratory Species 20-23 (undated)
(unpublished paper on file with the Columbia Journalof TransnationalLaw).
In both cases, the U.S. government responded by invoking the provisions of the
Magnuson Fishery Conservation and Management Act (MFCMA), which, inter alia, imposes
an import embargo on all fish products imported from any country that seizes a U.S. vessel
based on a jurisdictional claim not recognized by the United States. See 16 U.S.C. § 1825
(1982). The MFCMA and other U.S. legislation protecting United States fishermen from such
seizures are discussed in detail, infra section V. The U.S. responses under the MFCMA to the
Jeannette Diana seizure are recorded at 49 Fed. Reg. 33,526 (1984) (import prohibition on
tuna and tuna products from Solomon Islands); 50 Fed. Reg. 15,272 (1985) (removal of import
prohibition). The embargo against PNG in response to the Danica seizure lasted only a few
days; no notice was published in the FederalRegister.
Since tuna products are the major export from these countries, and the United States is
one of the largest markets for their tuna, the states involved eventually returned the vessels in
order to satisfy the MFCMA's conditions for removal of the embargoes. See 16 U.S.C.
§ 1825(c) (1982). PNG returned the Danica,which together with its illegal catch was valued
at approximately $13 million, in return for payment of a fee of approximately $194,000. The
JeannetteDiana was ultimately returned (seven months later) to its original owners for a pay-
ment of approximately $540,000. Efforts by the Solomon Islands to sell the ship on the open
market had been unsuccessful, in part because the U.S. government had made clear that it did
not recognize the legality of the confiscation nor the Solomon Islands' claimed title to the
vessel and that it would pursue all available legal remedies to regain custody of the ship.
The likelihood of a U.S. response to foreign seizures takes much of the practical useful-
ness out of the enforcement procedures of the island states. More fundamentally, even in the
absence of these U.S. responses, the small patrol forces available to the states are inadequate to
monitor some six million square nautical miles of ocean space theoretically under their EEZ
jurisdiction. As a result, generally all that can be hoped for is voluntary compliance with their
laws. The coastal states enjoy at best only dejure control over their tuna resources.
51. The current members of the South Pacific Forum are Australia, the Cook Islands,
Fiji, Kiribati, Nauru, New Zealand, Niue, Papua New Guinea, the Solomon Islands, Tonga,
Tuvalu, Vanuatu, and Western Samoa.

specifically devoted to fisheries.5 2

The FFA is headquartered at Honiara, the capital of the Solo-
mon Islands. The organization was established by a convention
between the parties concluded in July 1979.11 The preamble to the
convention sets forth the principal objectives of the organization,
including "the conservation and optimum utilisation of the living
marine resources of the South Pacific region and in particularof the
highly migratory species.' 54 To achieve these objectives, the signato-
ries agree to work together "to facilitate the collection, analysis, eval-
uation and dissemination of relevant statistical, scientific and
economic information about the living marine resources of the region,
and in particular the highly migratory species."55 The convention
makes clear that the principal purpose of the FFA is to coordinate the
member states' efforts to conserve and exploit the tuna resources of
the region so as to obtain the maximum possible economic benefit for
the island states themselves. The FFA is precisely the sort of interna-
tional organization mandated by article 64 of the LOS Convention,
which requires regional cooperation in the fisheries management of
highly migratory species.5 6
In addition to their membership in the FFA, several countries
are signatories to the Nauru Agreement, 7 which sets forth a number
of shared principles regarding fisheries resource management and
additional obligations above and beyond those mandated by the FFA
Convention.5 8 Article II describes the measures that the signatories
will take to establish a coordinated approach to the issue of foreign
fishing for highly migratory species within their EEZs including, inter
alia, priority access to each other's EEZs for Nauru Agreement signa-

52. Members of the Forum Fisheries Agency include all states listed in note 51, supra,
with the exception of Tuvalu.
53. South Pacific Forum Fisheries Agency Convention, 1979 Austl. T.S. No. 16,
U.N.T.S.- [hereinafter FFA Convention]. The day-to-day work of the FFA is overseen
by the Forum Fisheries Committee, made up of representatives of the member states. The
committee works toward regional harmonization of fisheries management policies and seeks to
further regional cooperation in the areas of surveillance and enforcement, marketing, onshore
fish processing, access to the EEZs of other member states, and foreign relations with distant-
water fishing nations. Id. art. 5.
54. Id Preamble (emphasis added).
55. Id.
56. See discussion supra notes 41-43 and accompanying text; see also Tsamenyi, supra
note 50, at 4-8.
57. Nauru Agreement Concerning Co-operation in the Management of Fisheries of
Common Interest, Nov. 6, 1981 (copy on file with the Columbia Journal of Transnational
Law) [hereinafter Nauru Agreement]. The signatories are the Federated States of Micronesia,
Kiribati, the Marshall Islands, Nauru, Papua New Guinea, Palau, and the Solomon Islands.
58. See id art. VIII.

tories;5 9 uniformity in the terms and conditions for foreign fishing in 61

the region;1' standardized procedures for licensing foreign fleets;
and cooperation in enforcement, including the possibility of joint sur-
veillance and enforcement procedures. 62
Within the context of the institutional structure of the FFA and
the Nauru Agreement, the island states have entered into a wide vari-
ety of financial arrangements with foreign fleets that desire to fish in
the region. Although the FFA and the Nauru Agreement seek to
standardize many of the conditions under which foreign fleets may
fish in the area, individual states retain significant latitude to regulate
the terms under which foreign fishing will take place. Arrangements
with foreign states and companies have included licensing fees of a
variety of types, royalties based on a percentage of the catch, and joint
ventures in which the coastal state is in some respects a partner in the
fishing enterprise.
The most common of these financial arrangements is payment of
a fee for a license or permit to fish within the EEZ of the coastal state.
These license fees generally take the form of a lump sum, which cov-
ers a specified number of fishing vessels for a specified period of time.
Often the agreements are multi-party in the sense that two or more
island states (or, more commonly, specialized government agencies)
join together with a foreign party or parties. The foreign party in turn
may be a government, government agency or state-owned enterprise,
or a private company or industry association. The principal advan-
tage of the license fee arrangement is its administrative manageability.
Although fees based on a given percentage of the value of the landed
catch might be more equitable from the viewpoint of the islands, and
would help to curb overfishing by licensees, most countries have opted
for the convenience of lump sum fees. In some cases, notably in
agreements negotiated by the Federated States of Micronesia and
Kiribati with Japanese fishermen, part of the fee is paid in goods and
* 63
Of particular interest to U.S. fishing enterprises are two recent
access agreements negotiated on their behalf by the American
Tunaboat Association (ATA). In the first of these agreements, the
ATA recognized the exclusive coastal state management authority of
the Federated States of Micronesia, Palau, and the Marshall Islands

59. Id. art. II(a).

60. Id. arts. I(b), (c).
61. Id. art. III.
62. Id. arts. VI, ViI.
63. For a summary of the financial terms of a number of recent agreements, see Ridings,
supra note 48, Table 2.

for tuna resources located within their EEZs. 6 Under the terms of
the agreement, which expired in June 1982, vessels of the ATA were
allowed to fish in most areas of the states' EEZs provided they first
obtained a Certificate of Access. The fee for obtaining such a certifi-
cate was set at $30 per net registered ton of the vessel for the first
year, and $40 per ton in the second year.6 5 The second ATA agree-
ment, running from January 1983 to December 1984, was signed by
the Federated States of Micronesia, Kiribati and Palau, with fees set
at $55 and $60 per registered ton in the first and second years, respec-
tively. Under this two-year arrangement, the average ATA purse
seiner of 600 tons would pay roughly $33,000 to fish during the first
year of the agreement. The agreement generated approximately $1.5
million for the three countries during its term. 6 Negotiations in
December 1984 to extend the ATA agreement ended in stalemate
when the parties failed to reach a compromise on the new fee. The
South Pacific states wanted to increase it, both to generate more reve-
nue and to bring the rates charged ATA boats into line with the much
higher rates charged to Japanese and Korean fishermen; the ATA,
feeling the effects of decreased worldwide demand for tuna and nar-
rowing profit margins, demanded a substantial reduction.
In 1985, shortly after and as a direct result of the collapse of the
ATA agreement, Kiribati announced that it had reached an agree-
ment with the Soviet Union regarding access to Kiribati's EEZ.67 The
agreement with the Soviet Union allowed access to Kiribati's EEZ for
a fleet of eighteen Soviet vessels for a payment of $1.5 million. The
agreement recognized Kiribati's sovereign rights over the fish
resources in its EEZ, and explicitly mentioned both Kiribati's domes-
tic legislation on the subject and the LOS Convention. The agreement
expired in October 1986, and has not been renewed, in part because
the Soviet Union demanded a significant reduction in the fee, in part
because of domestic and international pressures not to deal with the

64. See Agreement between the Maritime Authority of Micronesia and the American
Tunaboat Association, Preamble (copy on file with the Columbia Journal of Transnational
65. See id. para. 7.
66. See Doulman, Some Aspects and Issues Concerning the Kiribati/Soviet Union Fish-
ing Agreement, Pacific Islands Development Program 8 (1986).
67. See, e.g., S. ExEc. REP. No. 100-9, supra note 14, at 2 ("This cycle of conflict has
undermined our relations with a number of South Pacific nations providing the U.S.S.R. with
an opportunity to exploit this problem through bilateral fishery agreements.").
The title of the agreement was "Agreement between the Government of the Republic of
Kiribati and Sovrybflot of the Union of Soviet Socialist Republics concerning purse seine and
long-line fishing within the Exclusive Economic Zone of Kiribati." The Soviets had earlier
made unsuccessful efforts to negotiate agreements with Fiji, Papua New Guinea, the Solomon
Islands, Tuvalu, and Western Samoa. See Doulman, supra note 66, at 9.

Soviet Union, and in part as a result of hopes of obtaining a more

lucrative financial deal with the United States. In January 1987,
Vanuatu reached a similar agreement with the Soviet Union for a
term of one year. 68 The United States, as well as New Zealand, Aus-
tralia, and other Pacific island states, had strongly objected to these
two agreements with the Soviet Union; their existence gave greater
impetus for the69negotiation of a multilateral tuna convention with the
United States.
Joint ventures have also played a role in the development of for-
eign fishing in the region, although to a lesser extent than licensing.
The principal advantage of the joint venture arrangement over licens-
ing is thought to be the greater involvement of the local government
or its nationals in the ownership and management of the enterprise.
Depending upon the degree of ownership and control of the local
partner, the joint venture arrangement may also lead to increased
local onshore processing and related economic development. In addi-
tion, the joint venture provides a transitional arrangement that may
smooth the process of developing independently viable domestic fish-
ing industries. Most fundamentally, the joint venture arrangement
allows the local partner to enjoy an economic return directly related
to the profitability of the enterprise itself. In many cases, however,
the degree of local participation has been minimal, sometimes consist-
ing merely of local incorporation of the enterprise.7 °
The islands have growing domestic fishing industries, but at pres-
ent they do not account for a significant portion of the total tuna
resources harvested in the Pacific region. There is hope among mem-
bers of the FFA that increased regional cooperation will lead to devel-
opment of local fisheries industries. In the meantime, the Pacific
island states recognize their continuing need for foreign capital and
fishing fleets to exploit the tuna resources off their coasts and rely on
license fees and joint ventures as the principal source of economic
return from the tuna resources that they claim.

68. See S. EXEC. REP. No. 100-9, supra note 14, at 22 (Appendix) (Prepared statement
of E. Derwinski, Under Sec'y of State for Security Assistance, Science and Technology).
69. See discussion of the Fisheries Treaty infra notes 100-117 and accompanying text.
United States opposition to the Soviet-Kiribati agreement was somewhat hypocritical in light
of the fact that (1) the ATA had been given a first option by Kiribati, (2) the United States was
engaged in joint ventures with the same Soviet company, and (3) in 1985, Soviet fishermen
were granted some four percent of the total foreign fishing allocations for the U.S. EEZ. See
Doulman, supra note 66, at 13.
70. See Ridings, supra note 48, at 11 (Table 3).


United States law and policy with respect to tuna fisheries stands
in marked contrast to the legal regime applicable to tuna under the
municipal law of the Pacific island states and under widely accepted
principles of international law. The U.S. policy may be described as
having the following four separate but related elements: (1) general
acceptance of the principle of a 200-mile EEZ in which a coastal state
has sovereign rights over living and non-living resources located
within that zone; (2) an explicit exception to the principle of EEZ
jurisdiction and coastal state sovereignty in the case of highly migra-
tory species of tuna; (3) an extensive body of domestic legislation that
implements the tuna exception and provides powerful enforcement
mechanisms that protect the U.S. fishing industry when fishing within
the EEZs of other states; and (4) a number of multilateral treaties
which modify these rules with respect to tuna fishing in certain ocean
areas. This section briefly summarizes the current U.S. fisheries policy
with respect to tuna and the basic legal provisions that implement it.

A. The EEZ Proclamation

On March 10, 1983, President Reagan announced, in the form of

a presidential proclamation (the Proclamation), U.S. adherence to the
principle of coastal state sovereign rights over living and non-living
resources located within a 200-mile EEZ. 7 1 Although it was issued
shortly after the United States had decided not to sign the recently
concluded LOS Convention, the Proclamation represented general
acquiescence by the United States in those parts of the LOS Conven-
tion that referred to the concept of an EEZ.7 2
The Proclamation, however, carefully exempted tuna from inclu-
sion within the concept of an EEZ. The Proclamation claimed for the
United States "sovereign rights for the purpose of exploring, exploit-
ing, conserving and managing natural resources, both living and non-
living, of the seabed and subsoil and the superjacent waters" in the
EEZ;73 but it explicitly stated: "This proclamation does not change
existing United States policies concerning the continental shelf,
marine mammals and fisheries, including highly migratory species of
fish which are not subject to United States jurisdiction and require

71. Proclamation 5030, Mar. 10, 1983, 3 C.F.R. § 2 (1983) [hereinafter Proclamation].
72. See LOS Convention, supra note 7, Part V, arts. 55-75; see also supra note 28 and
accompanying text.
73. Proclamation, supra note 71. Cf. LOS Convention, supra note 7, art. 64; see supra
text accompanying note 42.

international agreements for effective management."74 Thus, the

Proclamation specifically provides that the United States does not
claim any rights with respect to tuna resources located within its
EEZ. Furthermore, the U.S. position implicitly rejects the validity of
claims by other states to jurisdiction over tuna resources located
within their EEZs. This interpretation is made explicit in the Policy
Statement issued by the President contemporaneously with the Proc-
lamation. 7 The exception made for tuna is striking since neither the
LOS Convention,7 6 nor the municipal law of other coastal states,
make such an exception for tuna.7 7
The official U.S. explanation for this exception is that highly
migratory species that travel through one or more EEZs must be sub-
ject to a regime of internationally-coordinated management and con-
servation. As explained in the preceding section, such an approach is
explicitly endorsed by article 64 of the LOS Convention. The United
States goes beyond the LOS Convention, however, in maintaining that
coastal state sovereignty over migrating species is fundamentally
inconsistent with internationally effective conservation and
The logic of this proposition is far from compelling, for it con-
fuses two wholly distinct issues: the property right or entitlement to
the resource in the first instance, and the separate issue of conserva-
tion of the natural resource for its rightful owners. 79 A more plausible
explanation for the unique tuna exception may lie in the simple fact

74. Proclamation, supra note 71 (emphasis added).

75. See President's Statement, Mar. 10, 1983, reprintedin 83 DEP'T ST. BULL. No. 2075
at 70 ("My proclamation does not change existing policies concerning ... fisheries, including
highly migratory species of tuna which are not subject to jurisdiction. The United States will
continue efforts to achieve international agreements for the effective management of these
76. Although the LOS Convention includes tuna under its definition of highly migratory
species, LOS Convention, supra note 7, Annex I, and calls for international efforts to conserve
and manage these resources, the provisions relating to the EEZ, Le., articles 55-75, nowhere
suggest that coastal state resource rights do not extend to these fish. See generallytext accom-
panying potes 41-43.
77. The U.S. exemption apparently applies only to highly migratory species of tuna;
other highly migratory species, e.g., swordfish and marlins, are evidently included within the
U.S. EEZ jurisdiction. Given the rationale offered by the United States, Le., that highly migra-
tory species of fish require internationally coordinated efforts at conservation and manage-
ment, it is not clear why the U.S. exemption for tuna should not apply with equal force to all
highly migratory species.
78. See, e.g., Magnuson Fishery Conservation and Management Act Amendments:
Hearing on S.747, S.1245, and S.1386 Before the National Ocean Policy Study of the Senate
Comm. on Commerce, Science, and Transportation, 99th Cong., 1st Sess. 36 (1985) (Statement
of Edward E. Wolfe, Jr., Dep. Asst. Sec'y for Oceans and Fisheries Affairs, U.S. Dep't of
79. See infra Section VI, for a detailed critique of the U.S. position.

that there are very few tuna within the U.S. EEZ, while vast tuna
stocks are found within the EEZs of other coastal states.8" An exemp-
tion for tuna from coastal state jurisdiction in effect constitutes a sub-
sidy to U.S. tuna fishermen in that it provides a rationalization for the
industry practice of fishing in foreign EEZs without payment of any
form of remuneration to the coastal state. Not surprisingly, the
organized tuna industry has lobbied strenuously for the tuna exemp-
tion in U.S. fisheries law and policy. 1
This unique position with respect to tuna must be viewed against
the backdrop of U.S. fisheries legislation and policy in general. Two
pieces of federal legislation-the Magnuson Fishery Conservation and
Management Act (MFCMA)8 2 and the Fishermen's Protective Act
(FPA) 3 -provide foundation for U.S. domestic regulation of the fish-
ing industry and incorporate the current administration position with
respect to tuna.

Even before the United States announced its acceptance of a
comprehensive EEZ (albeit one that excluded tuna), it had already
extended fisheries jurisdiction to the 200-mile limit with the passage
of the MFCMA in 1976.84 Section 1811 establishes a "fishery conser-
vation zone" extending 200 miles from the coastal baseline; section
1812 grants to the United States "exclusive fishery management
authority" for "[all] fish within the fishery conservation zone" as well
as for certain anadromous species and continental shelf fisheries
resources located beyond that zone."
Section 1813 states simply that "[t]he exclusive fishery manage-
ment authority of the United States shall not include, nor shall it be
construed to extend to, highly migratory species of fish."81 6 The
exemption is not, however, applicable to all highly migratory species
of fish, for the act defines the term "highly migratory species" to
mean only tuna.87

80. See supra note 11.

81. See, S. EXEc. REP. No. 100-9, supra note 14 (Appendix) (Statement by E. Derwin-
ski, excerpts from Hearings before the Senate Foreign Relations Committee, Sept. 24, 1987).
82. 16 U.S.C. § 1801-1882 (1982).
83. 22 U.S.C. § 1971-1980 (1982).
84. See MFCMA, supra note 82, 16 U.S.C. §§ 1801(b)(1), 1811.
85. Anadromous species include fish that spawn in fresh waters of the United States and
migrate to the open sea. See definition at 16 U.S.C. § 1802(1). Continental shelf fisheries
resources, including a variety of species of coral, crustacea, mollusks, and sponges, are listed in
detail at id. § 1802(4).
86. Id. § 1813.
87. See id. § 1802(14) ("The term 'highly migratory species' means species of tuna

Although a primary focus of the MFCMA is to set up the

Regional Fishery Management Councils that prepare and monitor
regional fishery management plans and regulate the conduct of for-
eign fishing within the fishery conservation zone, much of the act in
fact implements the unique U.S. position on tuna jurisdiction. For
example, the act states that the United States will not accept any
coastal state claims to fisheries jurisdiction beyond the territorial sea
if, inter alia, such state "fails to recognize and accept that highly
migratory species are to be managed by applicable international fish-
ery agreements,
whether or not such nation is a party to any such
More importantly, the MFCMA provides a powerful enforce-
ment mechanism for U.S. tuna policy. For example, the act directs
the Secretary of the Treasury to declare an embargo on the importa-
tion of fish products under a variety of situations, including when a
foreign coastal state attempts to prevent U.S. vessels from fishing for
tuna within the coastal state's EEZ or when a foreign state seizes a
U.S. 8vessel
for "illegally" fishing for tuna within the coastal state's
The imposition of an import prohibition follows a two-step pro-
cess. First, the Secretary of State must make a determination that
any one of a number of events that could trigger the sanction has
occurred. Such triggering events occur when:
(2) any foreign nation is not allowing fishing vessels of
the United States to engage in fishing for highly migratory
species in accordance with an applicable international fish-
ery agreement, whether or not such nation is a party
thereto; [or ... ]
(4) any fishing vessel of the United States, while fishing
in waters beyond any foreign nation's territorial sea, to the
extent that such sea is recognized by the United States, is
seized by any foreign nation-
(A) in violation of an applicable international fishery

which, in the course of their life cycle, spawn and migrate over great distances in waters of the
ocean.") (emphasis added). Compare LOS Convention, supra note 7, art. 64 and Annex I
(highly migratory species defined to include eight different species of tuna as well as certain
species of mackerel, marlins, sail-fishes, swordfish, pomfrets, sauries, dolphins, oceanic sharks,
and cetaceans).
88. 16 U.S.C. § 1822(e)(2) (1982). Of course, coastal state recognition that highly migra-
tory species are to be managed internationally is not necessarily inconsistent with a coastal
state claim of sovereignty over the resources. See infra discussion following note 132.
89. 16 U.S.C. § 1825 (1982).

(B) without authorization under an agreement between

the United States and such nation; or
(C) as a consequence of a claim ofjurisdiction which is
not recognized by the United States.90
Second, upon receipt of such a certified determination from the
Secretary of State, the Secretary of the Treasury must immediately
declare the embargo:
[T]he Secretary of the Treasury shall immediately take
such action as may be necessary and appropriate to prohibit
the importation into the United States-
(1) of all fish and fish products from the fishery
involved, if any; and
(2) upon recommendation of the Secretary of State,
such other fish or fish products, from any fishery of the for-
eign nation concerned, which the Secretary of State finds to
be appropriate to carry out the purposes of this section.91
The Secretary of the Treasury lacks any discretionary authority
regarding the declaration of an embargo; the only discretion allowed
under this regime is whether the Secretary of State shall make a deter-
mination that a triggering event has occurred in the first place. Pre-
sumably, there would be a variety of situations in which foreign policy
or other considerations would argue against an embargo; in such
cases, under the present legislation the only option would be for the
Secretary of State to refrain from making any determinations that
would automatically trigger the sanctions imposed under section

C. The Fisherman'sProtective Act

The second leg of U.S. fisheries legislation is the Fisherman's
Protective Act (FPA).92 The FPA provides broad-based protection to
the owners of U.S. vessels that are seized for illegally fishing in the
waters off foreign coasts. The legislation, first enacted in 1954 and
subsequently amended in 1967 and 1978, was originally intended as a
response to seizures of U.S. vessels off the coasts of Chile, Ecuador,
and Peru during the 1950s and 1960s when those states proclaimed
their territorial seas to extend to 200 miles.93 Today the legislation is
90. Id. § 1825(a)(2), (4) (emphasis added). Presumably, a coastal state claim to EEZ
resource rights over tuna would be one such jurisdictional claim.
91. Id. § 1825(b) (emphasis added).
92. 22 U.S.C. § 1971-1980 (1982).
93. See supra note 24 and accompanying text.

used to provide equally broad protection to U.S. tuna fishing vessels

operating within the EEZs of foreign states.
The FPA provides compensation for losses incurred by U.S. fish-
ermen whose vessels are seized by foreign governments for violations
of their fishing laws. The compensation extends to losses incurred in
securing the release of the vessel or crew, 94 actual out-of-pocket costs
(including confiscated or spoiled fish or loss of income), 95 and loss or
destruction of fishing vessels or gear.96 A special fmd-the Fisher-
man's Protective Fund-is established to provide the necessary com-
pensation.97 If a loss claimed by a U.S. fisherman is not promptly
compensated for by the foreign country involved, an amount equal to
that claim shall be immediately deducted from the amount of foreign
aid appropriated for that country and deposited in the Fisherman's
Protective Fund or otherwise set aside for the purposes of compensa-
tion.98 Like the embargo imposed by the MFCMA, this deduction
from a coastal state's foreign aid is more or less automatic, and may
be waived only if the President (or the Secretary of State) makes a
determination that it is in the national interest not to make such a
Section 1972 of the FPA provides that the Secretary of State
shall take all necessary steps to insure the protection of the vessel and
the safety of the crew if, inter alia, "any vessel of the United States is
seized by a foreign country on the basis of claims in territorial waters
or the high seas which are not recognized by the United States." 99
Since the United States does not recognize the claim of the island
states to resource rights over tuna located beyond their territorial
seas, any seizure based on U.S. tuna fishing in foreign EEZs would
trigger sanctions under the FPA.
The practical effect of the FPA is to eliminate virtually all of the
economic risks to U.S. fishermen who choose to fish for tuna in. the
EEZs of the Pacific island states. Indeed, the current legislation, if it
does not actively encourage the U.S. fishing industry to violate the
municipal laws of the island states, at least provides ample assurance
that little or no economic harm will result in the unlikely event that
one of the island countries enforces its fishing laws and EEZ

94. 22 U.S.C. § 1973.

95. Id. § 1977.
96. Id. § 1980.
97. See id. § 1979.
98. Id. § 1975.
99. Id. § 1972.

D. The Fisheries Treaty with Pacific Island States

The official legal position of the U.S. government-that tuna are
beyond coastal state jurisdiction-has been softened somewhat in
practice through the negotiation of multilateral treaties to regulate
tuna fishing in certain ocean regions. The most important evidence of
this approach is the recently ratified U.S. multilateral fishing access
agreement with members of the FFA (the Fisheries Treaty). This
treaty is the most recent of a number of multilateral tuna treaties to
which the United States is a party,"°° and which to a certain extent
have modified the official U.S. position on tuna discussed above. The
Fisheries Treaty was considered essential to resolve the jurisdictional
dispute between the United States and the Pacific island states; recent
events, including the seizures of the Danica and the Jeannette Diana
and the conclusion of the Soviet-Kiribati and Soviet-Vanuatu access
agreements,101 provided new impetus for the negotiations.
After ten sessions and two years of negotiations, representatives
of the United States and the Pacific island nations finally reached
agreement on October 20, 1986.102 The agreement, which was signed
on April 2, 1987 and unanimously ratified by the Senate on November

100. The United States has for some time been a party to two major international con-
ventions regarding tuna resources in the Eastern Pacific and North Atlantic regions. The
earliest of these was the Convention for the Establishment of an InterAmerican Tropical Tuna
Commission, May 31, 1949, 1 U.S.T. 230, T.I.A.S. No. 2044, 80 U.N.T.S. 3 (France, Japan,
Nicaragua and Panama are also parties to this Convention). The U.S. domestic implementing
legislation appears at 16 U.S.C. §§ 951-961 (1982). The second of these conventions is the
International Convention for the Conservation of Atlantic Tunas, Mar. 29, 1969, 20 U.S.T.
2887, T.I.A.S. No. 6767, 673 U.N.T.S. 63 (in addition to the United States, signatories include
Angola, Benin, Brazil, Canada, Cape Verde, Cuba, France, Gabon, Ghana, Ivory Coast,
Japan, Morocco, Portugal, Republic of Korea, Sao Tome & Principe, Senegal, South Africa,
Spain, Uruguay, the U.S.S.R., and Venezuela). This treaty establishes international standards
for tuna fishing in the Atlantic Ocean. The U.S. domestic implementing legislation, the Atlan-
tic Tunas Convention Act of 1975, appears at 16 U.S.C. § 971-971i (1982 & Supp. IV 1986).
Both of these conventions focus on scientific research and conservation measures. The
only tuna treaty that provides for licensing agreements within a 200-mile EEZ on terms similar
to those found in the Fisheries Treaty is the Eastern Pacific Ocean Tuna Fishing Agreement,
Mar. 15, 1983, United States-Costa Rica-Panama, reprintedin S. TREATY Doc. No. 98-3, 98th
Cong., 1st Sess. (1983). The agreement has not yet entered into force and its future is uncer-
tain because, among other reasons, Mexico, one of the major tuna fishing countries in the
region, has refused to sign it. See S. ExEc. REP. No. 100-9, supra notd 14, at 33 (Appendix)
(Prepared Statement of the American Tunaboat Association).
101. See supra notes 67-69 and accompanying text.
102. Fisheries Treaty, supra note 3. See Wall St. J., Oct. 23, 1986, at 14, col. 2. The 16
signatory nations are Australia, Cook Islands, the Federated States of Micronesia, Fiji,
Kiribati, the Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Solo-
mon Islands, Tuvalu, the United States, Vanuatu, and Western Samoa. Any member of the
FFA may become a party to the treaty; Tonga and Palau did not sign it. The United States
was negotiating on behalf of the government of the United States and its domestic fishing

6, 1987, sets forth the terms and conditions under which U.S. flag
tuna boats may acquire licenses for access to ten million square nauti-
10 3
cal miles of the South Pacific Ocean.
The new treaty specifies a five-year term and substantial pay-
ments by the U.S. government and the tuna industry. The United
States will provide a cash grant from the Agency for International
Development (AID) of $10 million each year, with $1 million to be
used for funding economic development projects formulated by the
FFA.'°4 The remaining $9 million will be divided among the Pacific
states pro rata on the basis of tuna catch. This $10 million annual
grant is supplementary to AID programs already in existence or
under consideration for the region.
In addition to the government payment, the U.S. tuna industry
agrees to contribute at least $2 million per year, of which $250,000
per year will consist of technical assistance to aid the islands (through
the FFA) in developing their domestic fishing industries.105 The
remaining amount will consist of annual license fees calculated as a
lump sum of $1.75 million for the first year for 35 vessels, with
options for 5 additional licenses at $50,000 per vessel per year and 10
additional licenses at $60,000 per vessel per year. For years 2 through
5, the license fees will be $50,000 per vessel for the first 40 vessels and
$60,000 for the next 10 vessels, with annual fee adjustments indexed
to the world price of tuna. In no event, however, will the annual fee
drop below $50,000 per vessel. Proceeds from the license fees (less
any administrative costs) will be distributed to the signatory states in
proportion to the amount of tuna taken within 200 nautical miles of
their coasts in any given year.106
In addition to the economic terms regarding industry license fees
and U.S. government aid payments, the Fisheries Treaty contains a

103. The sea area covered by the Fisheries Treaty is described in article 1.1(k) and con-
sists principally of sea areas within the 200-mile EEZs of the signatory states. The area subject
to the licensing terms of the treaty (the Licensing Area) includes all such waters other than (1)
waters subject to U.S. jurisdiction and (2) certain areas-principally within the territorial seas
of the signatories--closed to U.S. fishing vessels. See Fisheries Treaty, supra note 3, art. 1.1(e)
& Annex I, part 1(1).
Terms for fishing in areas within the EEZ of a coastal state "closed" to fishing under the
treaty may be arranged on a case by-case basis between vessel owners and the government
involved. See id. art. 3.3.
104. Agreement Between the Government of the United States of America and the South
Pacific Forum Fisheries Agency, Apr. 2, 1987, art. 4, reprinted in 26 I.L.M. 1091 (1987).
105. Fisheries Treaty, supra note 3, Annex II, sched. 2, Part 1.1 (a)(i) & Part 2. The
fairness of the $10 million/$2 million government/industry contributions was briefly discussed
in the hearing on the treaty before the Senate Foreign Relations Committee. See, S. EXEC.
REP. No. 100-9, supra note 14, at 10-11 (Appendix).
106. Fisheries Treaty, supra note 3, Annex II, sched. 2, Part 1.

number of provisions regarding enforcement of the treaty and other

obligations. Under article 2, the United States agrees to provide
broad economic and technical support to the islands to assist them in
maximizing the benefits from the development of their fisheries
resources; in particular, the United States agrees to promote the use,
by U.S. licensed vessels, of local industry infrastructure, including
local support services and employment.
Articles 4 and 5, captioned "Flag State Responsibility" and
"Compliance Powers," respectively, detail the rights and obligations
of the parties to enforce the terms of the treaty. Article 4 provides
that the United States must assist in any investigation into an alleged
violation of the treaty by a U.S. vessel. If investigation indicates that
a major violation has occurred and the violator has not submitted to
the jurisdiction of the state concerned, the United States will take
steps either (1) to ensure that the vessel leaves the licensing area and
does not return except to submit to the jurisdiction of the party or (2)
to penalize the offending vessel to the satisfaction of the island
state."7 In addition, the United States agrees to take measures to
ensure that an agent is appointed in Port Moresby, Papua New
Guinea to receive any legal process issued in respect of a vessel
operator. 108
Article 6 sets forth the procedures for consultations and dispute
resolution regarding any intergovernmental disputes that might arise
under the treaty. The treaty specifies that any dispute will be settled
by arbitration, and that the rules of the United Nations Commission
on International Trade Law (UNCITRAL) will apply.10 9 The place
of the arbitration will be Port Moresby, Papua New Guinea, and
three arbitrators will serve on the panel. 10 The parties further agree
to meet annually to review operation of the treaty,"' which1 2may be
amended at any time during its term if all parties so agree.
Thus far, the treaty has been ratified by the United States and
twelve Pacific states, including Australia, the Cook Islands, the Fed-
erated States of Micronesia, Fiji, Kiribati, the Marshall Islands,
Nauru, Niue, Palau, Papua New Guinea, Solomon Islands and

107. Id arts. 4.5 and 4.6.

108. Id. art. 4.9.
109. Id. art. 6.2.
110. Each side may appoint an arbitrator, and the third member of the panel is to be
appointed by agreement of the parties or, in the absence of such agreement, by the Secretary-
General of the Permanent Court of Arbitration at the Hague. Id. art. 6.3.
111. Id. art. 7.
112. Id. art. 8. A simplified procedure applies for amendment of an Annex to the treaty.
Id. art. 9.

Tuvalu.' 13 The treaty came into force on June 15, 1988 with respect
to those states when the United States deposited its instrument of rati-
fication with the depository (Papua New Guinea).
The Fisheries Treaty does not specifically alter the official U.S.
position of not recognizing EEZ jurisdiction over highly migratory
species. Moreover, the EEZ Proclamation, as well as the MFCMA
and the FPA, are technically unaffected by the treaty, although the
Fisheries Treaty specifies that the U.S. government will not impose
sanctions on a party state for any actions taken (including seizures of
fishing vessels) to enforce its terms. 1 4 While providing economic
remuneration to the islands for the right to fish in their EEZs, the
treaty stops short of actually acknowledging their sovereign rights
over the resources."' In effect, it sidesteps the important legal ques-
tion of whether the United States recognizes the South Pacific states'
sovereign rights over tuna in their EEZs and its legal obligation to pay
the fees, or whether it is simply paying the fees in settlement of the
dispute notwithstanding the fact that it is not obligated to do so under
international law. Remarks made before the Senate Foreign Relations
Committee and on the floor of the Senate, as well as remarks made by

113. Id. art. 12.4.

114. See Fisheries Treaty, supra note 3, art. 5.4 ("The Government of the United States
shall not apply sanctions of any kind including deductions, however effected, from any
amounts which might otherwise have been paid to any Pacific Island party, and restrictions on
trade with any Pacific Island party, as a result of any enforcement measure taken by a Pacific
Island party in accordance with this Article.").
115. See Background Paper, issued with press release accompanying the announcement
of reaching the agreement ("The United States neither claims nor recognizes jurisdiction over
highly migratory species of tuna beyond 12 nautical miles from the coast.") (copy on file with
the Columbia Journalof TransnationalLaw) ; but cf Statement by the White House Principal
Deputy Press Secretary, Oct. 23, 1986 ("The agreement provides just and fair compensation to
the islands for the resource .... ") (copy on file with the Columbia Journal of Transnational
The Preamble to the Fisheries Treaty provides its only reference to this fundamental juris-
dictional question. It states:
The Governments of the Pacific Island States party to this Treaty and the Govern-
ment of the United States of America:
ACKNOWLEDGING that in accordance with international law, coastal States
have sovereign rights for the purpose of exploring and exploiting, conserving and
managing the fisheries resources of their exclusive economic zones or fisheries zones;
RECOGNIZING the strong dependence of the Pacific Island parties on fisher-
ies resources and the importance of the continued abundance of those resources;
BEARING IN MIND that some species of fish are found within and beyond
the jurisdiction of any of the parties and range throughout a broad region; and
DESIRING to maximize benefits flowing from the development of the fisheries
resources within the exclusive economic zones or fisheries zones of the Pacific Island
Fisheries Treaty, supra note 3, Preamble.

the President and the Secretary of State, strongly suggest that the
United States persists in its view that under
international law tuna are
excluded from coastal state jurisdiction.
As a result, much ambiguity has been introduced. Although arti-
cle 5.4 of the treaty explicitly provides that the United States will not
impose sanctions against signatory states (including, presumably, the
enforcement measures of the FPA and the MFCMA) for retaliating
against U.S. fishermen fishing in a manner inconsistent with the
treaty, the United States does not in the treaty or its domestic legisla-
tion recognize coastal state jurisdiction to the tuna as a matter of
international law. Thus, U.S. tuna fishermen operating within the
200-mile limits of coastal states that are not parties to the treaty could
continue to avail themselves of the protections
of the MFCMA and
the FPA notwithstanding the treaty.'


U.S. policy and legislation concerning tuna resources is flawed in
three respects. First, the United States is without any legal justifica-
tion for its policy under international law as reflected in the LOS Con-
vention. Second, the U.S. position is fundamentally unfair. Third,
apart from its legality or fairness, the U.S. position is politically mis-
conceived insofar as it places the interests of the U.S. tuna fishing
industry ahead of more important U.S. foreign policy interests in the

A. InternationalLaw
On the most fundamental level, the U.S. policy on tuna should be
116. See, e.g., 133 CONG. REc. S15,953 (daily ed. Nov. 6, 1987) (statement of Sen. Pell)
("All of these island states wish to exert resource jurisdiction over all the fisheries, including
tuna, within their exclusive economic zones. This desire conflicts with the U.S. position that
tuna is a highly migratory species and should not be regulated by coastal states .... In an
effort to resolve this dispute and secure agreed terms of access for the U.S. tuna fleet, the
United States has entered into an agreement with 14 of the 16 Pacific island nations."); id.
(statement of Sen. Breaux) ("For the record, I have remained a strong proponent and advocate
of the U.S. juridical position that, due to their highly migratory nature, tuna cannot be effec-
tively conserved and managed on a unilateral basis." Sen. Breaux also called on Congress to
continue its support for traditional U.S. tuna fisheries policy as reflected in the MFCMA and
the FPA and criticized some nations for making "irresponsible jurisdictional claims the United
States neither claims itself nor recognizes."). Id. at S15,953. See also Letter of Submittal to
the Senate from the Secretary of State, May 27, 1987, ExEc. Doc. No. 9, 100th Cong., 1st
Sess. 1-2 (1987) ("The purpose of this treaty and its annexes is to eliminate serious foreign
policy irritants caused by differing jurisdictional claims over the tuna fisheries of the South
Pacific .... All of these island states wish to exert resource jurisdiction over all the fisheries,
including tuna, within their exclusive economic zones. This desire conflicts with the U.S. posi-
tion that tuna is a highly migratory species and should not be regulated by coastal states.").
117. See Fisheries Treaty, supra note 3, para. 5.4.

abandoned because it is contrary to the widely accepted rule of inter-

national law, a rule that no state-other than the United States-seri-
ously contests. The LOS Convention does not exclude tuna from
coastal state EEZ jurisdiction, and even among the few other states
that have not signed the LOS Convention, none takes the U.S. posi-
tion that tuna are or ought to be exempt from coastal state jurisdic-
"tion. The preferred interpretation of the international legal rules
applicable to tuna resources is that while coastal states have sovereign
rights over all living resources within 200 miles of their coasts, addi-
tional requirements are imposed on coastal states to ensure effective
management and conservation of their highly migratory species. In
favor of this interpretation is the plain and unambiguous language of
articles 56 through 64 of the LOS Convention, the practice of virtu-
ally all of the world's coastal states, and the overwhelming consensus
of international legal scholars." 8
The contrary U.S. position is based on a patently untenable inter-
pretation of the international law rule as reflected in the LOS Conven-
tion. The U.S. argument is that the inclusion of article 64 strips the
coastal states of their sovereign rights over highly migratory species.
But article 56, the general grant of coastal state rights over EEZ
resources, is phrased in the broadest of language, and grants the
coastal state sovereign rights for "exploiting, conserving and manag-
ing the natural resources, whether living or non-living" located within
the EEZ.1 19 Nothing in articles 56 or 64 exempts highly migratory
species from the general provisions concerning the EEZ, including
coastal state sovereignty; article 64 merely specifies the special addi-
tional requirements placed upon states to ensure that proper conser-
vation measures are taken for these unique species. Indeed, paragraph
2 of article 64 makes explicit the fact that the requirements of para-
graph 1 are "in addition to" the other provisions pertaining to the
EEZ.1 20 It is simply erroneous to read article 64 as setting forth an
entirely separate legal regime, including different rules with respect to
basic legal entitlement, for highly migratory species. Had the drafters
of the LOS Convention intended completely to exempt highly migra-
tory species from EEZ jurisdiction, they presumably would have done
so ina more direct fashion, as they did, for example, with respect to
sedentary species in article 68. 121

118. International legal scholars have uniformly criticized the U.S. position. See, eg.,
Tsamenyi, supra note 50; Wade, A Proposalto Include Tunas in U.S. Fishery Jurisdiction, 16
OCEAN DEv. & INT'L L. 255 (1986).
119. LOS Convention, supra note 7, art. 56, para. l(a).
120. Id. art. 64(2).
121. See id. art. 68 ("This Part does not apply to sedentary species as defined in article

The behavior of the United States during the LOS conference

might be said to imply its acceptance of the generally understood
meaning of the EEZ provisions. The United States, which ironically
had initiated the UNCLOS III round of negotiations, withdrew its
support for the treaty because of the failure to reach agreement on the
provisions of Part XI, pertaining to resource rights to mineral depos-
its in the seabed beyond the continental shelf.122 The United States
did not indicate any disagreement with the compromise position
struck in Part V relating to the EEZ. More importantly, at no point
in the negotiations did the U.S. delegation make clear any under-
standing that the general rule of coastal state sovereign rights over
fish resources would not apply to tuna. This discrepancy, however,
may be due to the fact that ratification of the treaty was viewed by the
United States as a package deal, i.e., the United States would only
have made concessions on tuna in exchange for gains in areas such as
minerals. Since the United States did not agree to the complete com-
promise package as finally drafted, it may be wrong to attach much
significance to U.S. acquiescence in any particular part of the package
in isolation. Nevertheless, it is curious that, but for the disagreement
over mineral rights, the United States might well have signed a con-
vention that is generally thought to grant coastal states sovereign
rights over tuna.
Since the U.S. government and international legal scholars have
expressed the view that the EEZ provisions essentially represent a
codification of pre-existing customary international law,1 23 it could
also be argued that the United States is bound by the EEZ rules
despite its failure to accede to the LOS Convention. However, a state
which has consistently objected to the recognition of a certain practice
as being required by international law is not bound by such a rule as a
matter of customary international law.1 24 Accordingly, to the extent
that the United States has, both in its domestic legislation and in
repeated public statements, denied that highly migratory species of
77, paragraph 4."). For an excellent discussion of the U.S. argument regarding articles 56 and
64 of the LOS Convention, see Burke, Highly Migratory Species in the New Law of the Sea, 14
OCEAN DEv. AND INT'L L. 273, 308-10.
122. The LOS Convention settled on a regime in which the deposits, which may not be
mined for many years, would be under international control and management; the minerals are
treated as a common resource of mankind to be equitably shared by all nations. See LOS
Convention, supra note 7, arts. 136-49. The United States wanted the minerals to be treated as
mineral deposits located beyond the continental shelf are presently treated, Le., as the property
of whoever first extracts them. United States companies are generally considered to enjoy a
significant advantage in the development of the technology required to extract such minerals.
123. See supra note 28.
124. See Asylum Case (Colom. v. Peru) 1950 I.C.J. 266, 277-78 (Judgment of Nov. 20).
Anglo-Norwegian Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116, 131 (Judgment of Dec. 15).

fish are subject to coastal state jurisdiction as a matter of international

law, 2 ' such a rule does not bind the United States.
These arguments do not, of course, address whether the United
States should, based on a variety of policy and other considerations,
abide by the rule. Furthermore, the extent to which the United States
is still a "consistent objector" to the provisions of the LOS Conven- 1 26
tion dealing with highly migratory species is also open to question.
For example, as discussed above, the United States has already
retreated in practice from its legal position by acceding to the Fisher-
ies Treaty. 127

B. Fairness
The United States justifies its refusal to recognize the EEZ tuna
rights of the South Pacific states in part by reference to the fact that
the United States does not claim such rights in its EEZ.121 This reci-
procity of treatment becomes meaningless, however, when one real-
izes that the vast majority of tuna is located in the EEZs of coastal
states other than the United States; in fact, the U.S. EEZ contains less
than one percent of the tuna landed worldwide and only six percent of
the tuna landed by U.S. fishermen. The U.S. view that other coastal
states have no grounds for complaint because they are free to fish in
the U.S. EEZ is therefore self-serving and hypocritical. 29 In addi-
tion, even if the Pacific island states wanted to take advantage of the
meager tuna resources within the U.S. EEZ, they would not be able to
do so since they lack a distant-water fishing industry.
This inherently unequal treatment was criticized when the tuna
exception was first debated in Congress. Congressional opponents
noted that:
[T]here are practically no tuna within our 200-mile
zone. In effect, the proponents [of the exception for tuna
under U.S. fisheries management legislation] are urging that
we have the right to regulate all fisheries within our 200-
mile zone, except for species that do not exist there. For
those species, they ask that we enact a special law to
demand that the 200-mile zone be inapplicable when
claimed by other nations if they include highly migratory

125. Cf. supra notes 71, 75, 86, & 87 and accompanying text.
126. See generally Burke, supra note 121, at 203, 305-306.
127. See, e.g., supra text accompanying note 100.
128. See MFCMA, 16 U.S.C.A. § 1812 (Supp. 1987).
129. See Burke, supra note 121, at 307 (discussing the U.S. position and its objective to
benefit the U.S. tuna industry).

species such as tuna."' °

Representative McCloskey on a later occasion underscored the
unfairness of this policy and the double standard it implied, warning
about the effect it would have on our relations "with friendly nations
who understandably resent what appears to them to be an arrogant
and imperialistic policy, to wit: what is within our 200-mile zone is
ours, but what is within your 200-mile zone is ours, too, if it is
13 1
Another U.S. justification for its tuna exception seems equally
illogical. As mentioned earlier, the U.S. has claimed that, because
tuna are highly migratory, their effective management and preserva-
tion requires that they be exempt from coastal state control and sover-
eignty and subject to a special regime of international control and
Implicit in this explanation is the notion that conservation and
management of highly migratory species is inherently inconsistent
with coastal state sovereign rights. The assumption is fundamentally
flawed. The issue of sovereign rights over the resource is logically
distinct from and prior to the question of resource management and
conservation. While the sovereignty question goes to fixing the initial
legal entitlement to the resource, the question of resource manage-
ment logically comes afterward. One can only decide how best to
conserve the resource after determining for whom the resources are to
be conserved. The fact that tuna migrate through one or more EEZs
only implies that conservation and management efforts must be inter-
nationally coordinated in order to insure their efficacy, i.e., in order to
insure that the resources are conserved and maintained for their right-
ful owners.
The United States and the coastal states agree that international
coordination in the area of conservation is necessary; they differ only
on the first question of who enjoys sovereignty. The U.S. position is
seriously undermined by the fact that the island states have estab-
lished a coherent and effective approach to tuna jurisdiction and man-
agement in the FFA and the Nauru Agreement. Those organizations
recognize the coastal states' individual sovereignty over the tuna
resources in their EEZs, while also recognizing that it is in the collec-
tive interest of these states to conserve their resources by joining

130. H.R. REP. No. 319, 95th Cong., 1st Sess. 9 (1977) (dissenting views of Reps. Paul
N. McCloskey, Jr., Joel Pritchard, Philip E. Ruppe, and Thomas B. Evans, Jr.).
131. 128 CONG. Rnc. 3, 947 (1982); Rep. MeCloskey's remarks were made on the floor
of the House following the seizure of the Danica off the coast of Papua New Guinea.
132. See, e.g., supra note 78 and accompanying text.

together in international organizations. In both these respects, these

organizations conform to the LOS Convention. It is, therefore, unrea-
sonable for the United States to claim that such a regime is inherently
In fairness to the U.S. view, it may be said that there would be
nothing irrational about a system in which highly migratory species
were exempted from coastal state jurisdiction. One might reasonably
take the position that highly migratory species are sufficiently differ-
ent from other types of resources that they should be removed from
the normal jurisdictional regime. Such an approach would in essence
treat highly migratory species as res communes, the common property
of mankind, incapable of being appropriated by any single state.
Although such a system would be feasible, a competing approach-
the one adopted by the LOS Convention-has instead been adopted.

C. Policy Objectives
A significant cost of the current U.S. tuna policy is its effect on
U.S. influence in the Pacific region. The Pacific region is an area of
major and growing geopolitical significance. Although the island
nations lack significant political, economic, or military power, and are
generally dependent on foreign aid from Western countries, the region
itself is of major strategic importance. The amount of territory cov-
ered is vast, especially if one considers the expanded EEZ jurisdic-
tions of these states, which cover some six million square nautical
miles. The Pacific region also includes the major shipping routes for
trade between the United States and Asia. The area has long been one
of special military significance; during the Second World War, many
of the major battles of the Pacific theatre took place on these islands.
Today, both the United States and the Soviet Union maintain major
naval presences in the region, and the United States and France use
the area as a nuclear testing ground.133 Although this region is impor-
tant to U.S. foreign policy interests, the State Department has largely
neglected it in recent years, relying heavily on Australia to protect
Western interests in the region."'
Historically, the states of the region have been considered strong
allies of the West, although this alliance is one based as much upon a
legacy of colonialism and economic dependence as upon any cultural
133. The United States currently maintains a ballistic missile testing facility on the
Kwajalein Atoll in the Marshall Islands.
134. The United States and Australia are formally joined, together with New Zealand, in
a 35-year old mutual security pact known as the ANZUS alliance. Security Treaty Between
Australia, New Zealand, and the United States of America, Sept. 1, 1951, 3 U.S.T. 3421,
T.I.A.S. No. 2493, 187 U.N.T.S. 113 (1956).

or philosophical affinity. Many of the islands are current or former

colonies or trust territories of the major Western powers, including
principally the United States, the United Kingdom and France.
Despite the historical pro-Western orientation of the islands,
recent events-some related to the dispute over tuna-have strained
relations between the United States and the island states of the Pacific
region.13 From the U.S. perspective, the most disturbing recent
developments were the fishing access agreements signed by Kiribati
and Vanuatu with the Soviet Union. These developments directly con-
cerned the United States for a variety of reasons. 136 First, the United
States was concerned about an increased Soviet presence in the
region; the United States feared that the fishing agreements, even
though they did not grant port privileges, would be only the first step
in a progression towards greater economic and political ties with the
Soviets. The amount of money involved in these agreements was not
insignificant by island standards: the $1.5 million Kiribati received
from the Soviet Union equalled the amount received for access from
all other countries combined; the total amount of $3 million it
received in 1986 from fishing access agreements amounted to roughly
one quarter of its total government budget for 1986. 13 A second con-
cern with the Soviet presence was the possibility that the Soviet fish-
ing vessels would be used for intelligence gathering and surveillance
purposes in the region. 138 Continuation of the U.S. legal position on
tuna jurisdiction creates tension with the Pacific island nations and
makes their turning toward the Soviet Union more likely.
Perhaps a more fundamental reason for formally abandoning
current U.S. policy is the fact that a striking disparity already exists
between the stated policy and law of the United States and the actual
practice of the U.S. government and U.S. firms. The disparity first
surfaced in the now-lapsed ATA agreements, discussed above. In

135. See supra note 14.

136. The concern over the Soviet-Kiribati and Soviet-Vanuatu fishing access agreements
must be seen in the context of other diplomatic setbacks in the region. For example, members
of the South Pacific Forum, including Australia and New Zealand, recently joined together in
a treaty declaring the Pacific region to be a nuclear-free zone in which the acquisition, manu-
facture, testing or stationing of nuclear weapons is prohibited. The South Pacific Nuclear Free
Zone Treaty, Aug. 6, 1985, U.N.T.S.- , reprinted in 24 I.L.M. 1440 (1985).
Although the treaty allows for transit of nuclear-armed or powered warships and leaves to
individual states the decision whether to allow such vessels to dock, New Zealand has banned
such ships from its ports. The United States is increasingly concerned about losing port privi-
leges for its nuclear-powered naval fleet, as well as the further unraveling of the ANZUS pact.
137. See Doulman, supra note 66, at 6.
138. But see id at 14 (arguing that such a concern "seems spurious given the extensive
Soviet intelligence network and military presence already in existence;" noting that the Soviets'
largest naval fleet is deployed in the Pacific.).

those agreements, members of the ATA agreed to pay $60,000 per

vessel as a license fee in exchange for the right to fish for tuna in the
EEZs of the island states, notwithstanding the fact that according to
U.S. law they were free to fish in those areas without payment of such
a fee. Hence, although the U.S. tuna policy is often justified as neces-
sary to protect the interests of the U.S. tuna industry, even members
of that industry recognize that it is in their interest to cooperate with
the island states despite the hardline position the U.S. government is
willing to take on their behalf with respect to tuna.
The participation of the U.S. government in the recently ratified
Fisheries Treaty is likewise inconsistent with the official U.S. legal
position with respect to tuna jurisdiction. Under the treaty, the U.S.
government agreed to pay $10 million per year in exchange for the
islands' allowing U.S. nationals to fish for tuna in their EEZs. The
final text of the treaty avoids explicitly addressing the question of
whether the United States recognizes the islands' sovereign rights
over their tuna resources under international law. Nevertheless, it is
clear to all that the payments are being made as a quid pro quo for
fishing rights. Thus, as a practical matter, the U.S. has recognized the
sovereign rights of signatory states over their tuna resources. It is
unclear why the United States refuses explicitly to acknowledge the
sovereign rights of all coastal states to tuna resources located within
their EEZs.

D. An Agenda for Reforming U.S. Tuna Law and Policy

A coherent policy on tuna should start with a number of funda-
mental policy objectives in mind. The general fisheries policy objec-
tive of the MFCMA-the conservation and effective management of
all fisheries resources-should be pursued. But that policy must be
implemented in a manner consistent with international law as
reflected in the LOS Convention and should recognize coastal state
sovereign rights over all fish resources located within the EEZ. The
interests of the U.S. fishing industry should be advanced and the com-
petitiveness of the U.S. fishing industry promoted, but only insofar as
these objectives are not inconsistent with a fisheries policy that con-
forms to international legal norms. Finally, greater consideration
should be given in formulating policy to the effect that fisheries policy
will have on economic development and the future of important polit-
ical alliances in the region. United States policy should also seek to

139. The tuna industry's primary long-term interest would appear to be to ensure contin-
ued access to Pacific tuna resources without the uncertainties and risks of the past, including
seizures of their fishing vessels.

strike an equitable balance between the economic interests of the U.S.

fishing industry and the island states.
The recently concluded Fisheries Treaty fails to acknowledge
explicitly U.S. recognition of coastal state sovereign rights over tuna
resources in conformity with international law, unlike other impor-
tant international access agreements. 14 Instead, the treaty sidesteps
this important legal issue, and finesses the question of why the indus-
try license fees and other direct government payments are being
made-either because the United States is legally bound to, or
because it is politically expedient to do so. Nevertheless, the new
treaty promises to become the cornerstone of U.S. tuna policy in the
Pacific region. Even though it leaves an important legal question
unresolved, as a practical matter it should help bring an end to the
friction between the region and the United States; at the same time, it
ensures the U.S. industry continued access to the stocks on terms at
least no less favorable than those offered to other distant-water fishing
In light of the fact that the treaty amounts to a practical, if not
explicit, recognition of coastal state sovereign rights over tuna
resources within the EEZ, the general tuna exception from EEZ juris-
diction as reflected throughout U.S. law should be repealed. The
United States should extend its implicit recognition of coastal state
sovereign rights over tuna resources to all coastal states, not merely to
those that are parties to the Fisheries Treaty. This would involve a
number of amendments or modifications to the MFCMA, the FPA,
and the EEZ Proclamation itself.
Specifically, section 1813 of the MFCMA, which provides the
basic exemption of tuna from U.S. fisheries management, and section
1822(e), which provides that the United States will not recognize
claims by other coastal states to jurisdiction over tuna in their own
200-mile zones, should be repealed. The MFCMA's enforcement
measures, contained in section 1825,141 should also be repealed to the
extent that they apply to fishing for tuna in the EEZs of other
states.142 Finally, some discretion should be permitted under the
MFCMA to allow the executive branch flexibility regarding whether
to invoke the act's sanctions. The FPA should be modified to make
clear that the scheme of reimbursement to fishermen whose vessels

140. E.g., the Soviet-Kiribati agreement and the ATA agreements.

141. 16 U.S.C. § 1825.
142. This might be unnecessary since the sanctions are invoked for seizures of vessels for
fishing based on a claim to jurisdiction not recognized by the United States. If the other provi-
sions of U.S. law are modified to recognize coastal state jurisdiction over tuna in the EEZ, then
the enforcement provisions would be acceptable as they currently stand.

are seized by other states would be inapplicable to seizures related to

illegal tuna fishing within other states' 200-mile zones.
Finally, the EEZ Proclamation, the basic law establishing the
U.S. EEZ, should be revised to make clear that U.S. EEZ jurisdiction
extends to all species located within the EEZ. The original assertion
of U.S. EEZ jurisdiction was made by presidential proclamation; pre-
sumably, a new proclamation could be issued asserting the EEZ to
include tuna and other highly migratory species. Perhaps more
appropriately, legislation should be passed amending the MFCMA,
and clearly codifying the extent and nature of U.S. EEZ jurisdiction.

In marked contrast to the relevant provisions of the LOS Con-
vention and the virtually uniform practice of the world's coastal
states, the United States stands alone in refusing to recognize the legal
validity of coastal state claims to rights over tuna located within their
EEZs. This refusal is reflected throughout U.S. domestic fisheries leg-
islation, which provides a large degree of protection to U.S. fishermen
fishing for tuna within foreign EEZs in violation of the municipal law
of those states and generally accepted rules of international law.
Although the recently ratified Fisheries Treaty stops short of explic-
itly recognizing coastal state sovereign rights over tuna as a matter of
international law, it may nevertheless represent an important first step
toward adopting that view. Such a reform in U.S. fisheries policy
would be highly advisable, for it would bring U.S. policy into con-
formity with the applicable standard of international law and with the
practice of the U.S. government and the U.S. tuna industry. More-
over, such a reform of U.S. tuna policy would help prevent political
and diplomatic conflicts with the nations of the Pacific and other
regions where U.S. tuna fishermen operate within the EEZs of foreign
coastal states.