Shallow International Law Can’t Protect the Deep Sea

by Cesare Romano

These days the UN General Assembly is discussing the adoption of a declaration calling for an immediate moratorium on deep-sea bottom trawl fishing on the high seas, at least until legally-binding regimes for the effective conservation and management of fisheries and the protection of biodiversity on the high seas can be developed, implemented and enforced. The measure has been proposed by Australia and a number of Pacific Countries, and it is crucially endorsed not only the US, but also the European Community, whose oversized and over-subsidized fleet fishes heavily off the six continents (Antarctica included).

In deep-sea bottom trawl fishing one or two fishing boats comb the bottom of the sea by dragging trawl nets weighted down on the sea floor by steel plates, tires, and whatnot. The net can be as large as several miles. It is a very indiscriminate and destructive fishing practice. It reduces ocean floors to deserts. The irony of it all is that we are destroying resources even before we discover them, as we just started exploring oceans’ depths.

Let’s leave aside the fact that any ban decided by the General Assembly will be in the form of a declaration, hence not-binding. Let’s also gloss over the fact that some countries engaging in this practice are not even members of the UN for well known reasons (i.e. Taiwan). Let’s try to be optimist, for once. Let’s assume for a second that the ban will be adopted, and that it will have bite, and that it will be widely observed, particularly by those countries for whom it is meant. After all, they are relatively few.

The fact is that deep-sea trawling is just one aspect, and arguably not even the most crucial, of a much large problem: the desertification of oceans. If you are not a coral tree hugger like me, but one of those humans concerned about their own well-being foremost, at least the rapid depletion of fisheries should concern you.

When the UN Convention on the Law of the Sea was negotiated, in the 1970s, the hot issue was humankind running short of minerals. The future was in deep-sea nodules (and outer space after that). To ensure everyone could have a fair share of the bounty on and below ocean floors, the LOS Convention established elaborated mechanisms and institutions to manage them.

We all know what happened. Prices of many of those metals today are a fraction of what happened to be in the 1970s, thus, for the time being, there is little incentive to take the trouble and dig for them deep in the oceans.

The problem of managing marine living resources sustainably was not as important or urgent. The issue was addressed first by giving coastal states exclusive rights over a 200-mile wide stretch of sea, and second by leaving it to states to subsequently agree on management measures through regional agreements. However, on the one hand only a few states have shown to have the will and capacity to enforce laws in vast swaths of coastal seas, while on the other hand the effectiveness of regional agreements is sapped by free-riders from outside the area.

We are running out of fish before we run out of copper and manganese. Considering the pace at which oceans have been vacuumed empty of the most commercially attractive species, it is clear that the LOS convention, and the various regional and special agreements, have spectacularly failed to ensure proper protection of wild species. The future seems to be of a dozen of antibiotic-filled, tasteless, farm-raised species instead of the cornucopia offered by nature.

For how long can oceans remain a free-for-all zone? Is a ban on deep-sea trawling only nibbling at a problem? When a single tuna can fetch on the market tens of thousands of dollars, who is going to take the chance to leave it alone to perhaps catch it fattier and larger another day? Perhaps, the only way out of this “tragedy of the commons” is extending states’ rights beyond the 200-mile band to cover eventually all oceans. More likely, we need some new ideas, pronto.

In the meantime, we can all do our own part by being more careful when we order at the restaurant. Bon appetit!

P.s. This is my favorite TV show.

http://opiniojuris.org/2006/10/16/shallow-international-law-can%e2%80%99t-protect-the-deep-sea/

One Response

  1. Professor Romano points to a timely debate about the age-old problem of how to manage the ocean commons. There are indeed preliminary discussions underway about working up a new UNCLOS “Implementing Agreement” for biodiversity (and living resources) in areas beyond national jurisdictions. Also underway are serious negotiations to establish in the short-term new treaty-based regional fisheries management organizations (RFMOs) for the Southern Pacific and Southern Indian Oceans that are likely to have broad-based authority to conserve and manage even deep sea fisheries. If the extensive domestic restrictions of bottom trawling are any indication, there is even a certain logic in wanting to expand national jurisdictions (always keeping in mind, however, that unilateral “ocean grabs” pre-UNCLOS often led to violent conflict).

    If the precautionary principle has taught us anything, it is surely that, for inherently destructive activities, even the short-term can come too late. The reality is that one small idea may often be better than the big fancy ones. Sometimes we just need to say ‘no’ to recklessness.

    This was done with great success by the United States, the countries of the South Pacific, and the General Assembly in 1989 for large-scale pelagic driftnet fishing (think dolphin un-safe tuna). From my own (interested) perspective, bottom trawling in international waters–it can’t really be called the “high seas” where the trawl doors and nets scrape the bottom–can and should be dealt with in a similar way.

    The Secretary-General recently reported that bottom trawling is scarcely regulated beyond national jurisdictions, yet is believed to be responsible for 95% of the worldwide damage to seamount ecosystems. For the sake of at most 300 bottom trawlers and a fraction of a percent of total world fish catch (more sushi than food security), however, the General Assembly has been at a standstill on this issue for years.

    The expectation set by the General Assembly two years ago was that this problem would be dealt with definitively this year. Fortunately there is encouraging political movement of late. President Bush, to his credit, has instructed the State and Commerce Departments to work domestically and internationally “to end destructive fishing practices.” The fourteen Pacific Islands Forum countries, including New Zealand and Australia, have recently joined a Palau-led proposal to immediately ban bottom trawling in the majority of ocean space where RFMOs either do not exist or are not under serious negotiation–at least until effective multilateral regulation is in place.

    Despite encouraging statements by a number of European countries, the European Community as a whole has not actually supported these proposals (contrary to what Professor Romano asserts). With sixty percent of the total bottom trawling fleet flying EU flags (owing mostly to Spain and Portugal), the EC’s proposal has been rightly criticized for sounding resolute but saying little. The EC calls for “an immediate prohibition by flag states of destructive fishing methods . . . on the sites of sensitive marine habitats in unregulated areas.” The problem is that we know more about the surface of the moon than we know about where the “sensitive marine habitats” are in the deep seas. The EC would in effect place the burden of proof on the corals, sponges, and deep sea fish stocks rather than on the trawlers known to be conducting this destructive activity. Out of the thousands of known seamounts in unregulated areas, the EC thus would place only the mere handful of those seamounts that have been studied under precautionary protection.

    Canada has even gone so far as to label the interim prohibition proposals offered by Australia and the United States as “extreme,” despite the fact that it has no bottom trawlers operating in international waters.

    And so it is that just a handful of countries threaten to stymie what should be a ready consensus that the unregulated bulldozing of the ocean floor is unacceptable. After fishing ever farther down the marine food web, we have finally hit rock bottom with bottom trawling. As we continue to witness the crash of global fish stocks, and with them the livelihoods of those nations and peoples that depend on sustainable fisheries, we can no longer wonder why. We must insist that those responsible–whether policymakers, producers, or consumers–stop this recklessness. With less than a month before the General Assembly finishes its negotiations, the time for this one idea is now.

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