The View of the Canadian Government
12 / 1997
While the United Nations Convention on the Law of the Sea (UNCLOS)recognised the rights of coastal states to fish stocks within their 200-mile Exclusive Economic Zone (EEZ), it did not recognise the exclusive rights of the coastal states to their offshore stocks throughout their range. This was much against the wishes of coastal states, such as Canada, with wide continental shelves that extended beyond the 200-mile limit, and with fish stocks that lived and reproduced across the 200-mile line. UNCLOS simply contained a perfunctory call for co-operation among states for managing such stocks. It left scope for conflict between coastal states that saw the resources inside their EEZ threatened by unregulated fishing outside, and the distant-water fishing states (DWFS)that enjoyed unrestricted freedom of fishing on the high seas. It was to fill this vacuum and to prevent such conflicts that the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was convened. The conflict between Canada and the European Union over the Spanish fleet’s fishing practices in the high seas needs to be seen against this background. The immediate cause for the dispute was over the allocation of quotas for turbot. The Northwest Atlantic Fisheries Organisation (NAFO), a regional organisation of 15 countries, including the EU and Canada, allocated some 3,400 tonnes of the Total Allowable Catch of 27,000 tonnes to the EU and a much larger share to Canada. The EU took recourse to NAFO’s objection procedure and unilaterally allocated to themselves over 18,000 tonnes. This was not the first time that the EU had taken recourse to the objection procedure. In the 1980s, significantly after Spain joined the EU, the EU had registered its objections to many of the quotas for stocks that straddled Canada’s 200-mile limit, into areas called the Nose and Tail of the Grand Banks. These areas were also the spawning grounds for most of the stocks. It was also in the 1980s that Canada began to notice the decline of some of its principal groundfish stocks and made efforts to regulate domestic fishing activity. Some stocks were even put under total moratoriums. The fact that the EU did not impose similar restriction on its fishing fleets, fishing the same stocks on the Grand Banks, was highly resented. And even more so when stock after stock disappeared as commercial assets. Throughout this period there was nothing that Canada could do to counter EU objections. Finally, in 1995, Canada decided to take up issue with the EU. It argued that the decision of the EU in allocating itself a larger quota, although legal in the strict narrow sense, amounted to a total disregard and complete undermining of NAFO’s endeavours to properly manage and safely conserve the resource. However the EU refused to negotiate.Canada then decided to take action on its own. The Spanish vessel, Estai, was arrested. A search of the vessel proved beyond doubt that the Spanish fishing fleet had been disregarding existing NAFO regulations and conservation standards. Previous observation and some NAFO inspections had already pointed out these violations to relevant authorities but the EU and Spain had not taken any action.This incident led to another round of negotiations between the EU and Canada. Among other things, it was agreed to ensure the presence of an impartial observer on every EU and Canadian ship fishing on the high seas. Many other enforcement mechanisms were also provided for. Canada used this opportunity to highlight the need for strengthening the regime of coastal states and to improve the management of fish stocks on the high seas. It also emphasised that freedom to fish on the high seas must be exercised according to binding, mutually agreed upon and enforceable rules.The strong action taken by Canada no doubt influenced the next session of the Straddling Stocks Conference to include specific provisions on enforcement and dispute resolution.
The arrest of the Estai brought into sharp focus the differences between the interests of coastal states, on the one hand, and those of distant water fishing states (DWFS), on the other. DWFS, like Spain, who had till then enjoyed complete and unrestrained freedom of access to high seas stocks, termed the action as unilateral and arbitrary. However, there is little doubt that the incident also helped highlight some of the lacunae in management of high seas stocks and helped influence the Straddling Stock Conference to strengthen provisions for enforcement and dispute resolution. The conflict emphasises the need to ensure that the freedom to fish be accompanied by a responsibility to fish in a sustainable manner.
Artículos y dossiers
TOBIN, Brian, The fish need peace in. Samudra Report, 1995/04, 12