Bluefin Tuna: Is the Tide Turning?

by Kristen Boon

A recent meeting of the International Commission on the Conservation of Atlantic Tuna (ICCAT) has been heralded by environmental groups as a win for science in the management and conversation of scarce resources on the high seas.  One of the species within ICCAT’s jurisdiction is the Bluefin Tuna, a species that has famously declined, and some would claim, collapsed in the last 20 years.

Indeed, it was the precipitous drop off in Bluefin Tuna stocks two years ago that put ICCAT under the global magnifying glass.  When the consequences of ICCAT’s mismanagement of the stocks and its inability to sanction overfishing became apparent, some countries tried (unsuccessfully) to do an end run around ICCAT’s jurisdiction by listing the Bluefin as an endangered species under the Convention on the International Trade in Endangered Species (CITES).

Bluefin Tunas are a highly migratory and valuable fish that swim between national and international jurisdictions.   Because there are few restraints on high seas fishing under the principle of open access, it has been very difficult to create regimes that can effectively regulate or reallocate fishing rights.   The UN Law of the Sea Convention and the UN Fish Stocks Agreement create some limitations on the right to fish on the high seas but they do not create precise rules on how to allocate scares stocks.

Overfishing of highly migratory stocks has become a classic tragedy of the commons:  participants are driven to permit practices and even adopt strategies that will produce overfishing.    In 2010, a New York Times Magazine article entitled Tuna’s End asserted:

“Tuna [are] … the terminus of an idea: that the ocean is an endless resource where new fish can always be found. In the years to come we can treat tuna as a mile marker to zoom past on our way toward annihilating the wild ocean or as a stop sign that compels us to turn back and radically reconsider.”

The press release from the November Morocco meeting indicates that ICCAT may have turned a corner.  Catch limits were extended through 2013, and there is some evidence that the stocks are rebounding.    Moreover, ICCAT has undertaken a variety of new measures to curb Illegal and unregulated fishing.

Nonetheless, not all contracting parties are happy about this.  Reports in the Canadian press here indicate that some countries continue to push for higher quotas.

Ultimately, this issue raises the question of how best to incentivize states to stop overfishing.   One approach might be to promote substantive and strategic linkages.  In the context of fisheries, there are obvious links between fishing and trade, because seafood is now one of the most highly traded commodities.  A reduction in trade through a moratorium or a trade certification regime could be an effective response to overfishing.    However, to date, there have been no successful attempts to use Article XX of the General Agreement on Tariffs and Trade (GATT) to restrict the capture of over-exploited species.  In the Tuna-Dolphin case, the GATT panel found that one country cannot take trade related action to implement its domestic laws. In the Shrimp -Turtle case, the WTO appellate body has been careful to emphasize that sovereign nations can adopt measures to protect endangered species, but its clear preference is that states address conservation through multilateral fora instead.  Ultimately trade must be part of the solution, whether under the WTO or as part of a separate agreement.  Yet it may be decades before countries agree that the international trade in fish should be limited to sustainable fish stocks caught in a sustainable manner.

Another approach might be to incentivize states to comply through financial reward.  One historic agreement illustrative of compliance through financial means is the 1911 Fur Seals convention, which secured the Pribilof herd of seals in the North Pacific Ocean.  Scott Barrett’s detailed account of the treaty in his book Environment and Statecraft demonstrates how the common property problem was rectified by reducing catch and distributing the gain through compensation.  Although there are some important differences between seals and bluefin tunas, in particular, fur seals are connected to territorial lands making them easier to regulate and enforce, there might be room to structure a new agreement for overexploited species where nations that overfish are compensated for reducing their fishing efforts.  The funds to compensate could be generated by vessel licensing schemes, certification and labeling schemes of the tunas themselves, or by taxing vessels directly.

http://opiniojuris.org/2012/12/01/bluefin-tunas-is-the-tide-turning/

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