A call from the bottom

by Cesare Romano

I will abuse of the posting privileges I was given on Opinio Juris for two weeks to make sure everyone has a chance to see this comment that was posted by Peter Prows to my posting “Shallow International Law can’t Protect the Deep Sea

For the record, I never quite bought the disctinction between academia and activism. We are all activists. It is only that some have the courage to admit it, while others prefer to hide their opinions behind the veil of their alleged “academic neutrality and objectivity”. Hence, I would like to make Peter’s appeal mine, and insist again on this problem.

“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.”

http://opiniojuris.org/2006/10/20/a-call-from-the-bottom/

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