Beruflich Dokumente
Kultur Dokumente
Citation:
Christopher R. Kelly, Law of the Sea: The
Jurisdictional Dispute over Highly Migratory Species of
Tuna, 26 Colum. J. Transnat'l L. 475 (1988)
Copyright Information
I. INTRODUCTION
catches. 2
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-
19881 LAW OF THE SEA
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
1988] LAW OF THE SEA
(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.
28. See, e.g., L. SOHN & K. GUSTAFSON, THE LAW OF THE SEA IN A NUTSHELL, Pref-
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
COLUMBIA JOURNAL OF TRANSNATIONAL LAW[ [26:475
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
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.
1988] LAW OF THE SEA
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).
19881 LAW OF THE SEA
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.
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [26:475
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.
1988] LAW OF THE SEA
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
Law).
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.
19881 LAW OF THE SEA
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).
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [26:475
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.
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.
19881 LAW OF THE SEA
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.
B. The MFCMA
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
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).
COLUMBIA JOURNAL OF TRANSNATIONAL LAW ["26:475
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
industry.
1988] LAW OF THE SEA
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.
COLUMBIA JOURNAL OF TRANSNATIONAL LAW[ [26:475
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
the President and the Secretary of State, strongly suggest that the
United States persists in its view that under
116
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
17
of the MFCMA and
the FPA notwithstanding the treaty.'
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.
1988] LAW OF THE SEA
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
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [26:475
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).
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [26:475
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.
1988] LAW OF THE SEA
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).
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [26:475
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.
COLUMBIA JOURNAL OF TRANSNATIONAL LAW [26:475
VII. CONCLUSION
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.