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Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation - and Frustration

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Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation - and Frustration OCEAN GOVERNANCE AND THE MARINE FISHERIES CRISIS: TWO DECADES OF INNOVATION - AND FRUSTRATION Harry N. Scheiber" I. IN T R O DU C T IO N ............................................................................................ 119 II. T HE U .N. R ESPO NSE ...................................................................... ........ 123 III. T HE U .S. D EBAT E .................................................................................... 127 IV.APPROACHES TO FISHERIES MANAGEMENT ..... ...................................... 129 A. The PrecautionaryPrinciple ........................................................ :.130 B. The Preservationist Approach ........................................................... 131 C. Protection of biodiversity and ecosystem integrity ............................... 133 D. Privatizationofproperty rights infisheries ........................................ 134 V . C O N C LU SIO N ............................................................................................ 137 I. INTRODUCTION Twenty years ago, many well-regarded marine biologists and fishery-management experts objected to the notion that marine fish stocks could actually be "depleted" or "exhausted."' Policy makers and even many scientists persistently resisted the idea that a marine fish population or species could be wiped out despite large-scale changes in the marine fishing' situation in modern times, including the modernization of fishing fleets. The industrialization of fishing vessels began with the introduction of steam-trawler fishing in the late nineteenth century. This was followed by other innovations in gear and vessel technology, such as the introduction of giant factory ships that began operating in distant waters in the 1930s. The impact of this industrialization and modernization of fleets, which accelerated Harry N. Scheiber is the Stefen Riesenfeld Professor of Law and History at the Boalt Hall School of Law, University of Califbrnia, Berkeley. He is director of the Ocean Law and Policy Program in U.C. Berkeley's Center fin the Study of Law and Society, and also teaches in Boalt Hill's Jurisprudence and Social Policy )octoral Program. Acknowledgemenbt. This article is based on research partly stipported by a grant from the Calitbrnia Sea Grant Program of federal fiunds (Sea Grant Program, NOAA) and state funds, under Grant R/MA,-IO. U.S. (;overnment agencies have permission to duplicate or circulate fbr official use. The author wishes to express his thanks to his colleagues in teachingand research, Proft l)avid Caron, and Christopher Carr, J.I)., of U.C. Berkeley, for a generous sharing, in all oIur collaborations, of their learning on the Law of the Sea and on international fisheries law. I To be sure, the utopian notion of inexhaustibility continued to be voiced, despite the manif stly devastating etlects, tir example, of whaling activity on whale stocks in some ocean areas even in the old age of sail. HeinOnline -- 20 Va. Envtl. L.J. 119 2001 120 Virginia Environmental Law Journal [Vol. 20:119 dramatically after World War II, was magnified by the relentless expansion of fishing effort. As a consequence of this expanded effort, the harvest of fish grew from 17 million tons to 69 million between 1950 and 1974. By 1990 it had risen to almost 90 million.2 In 1900, the world landings of marine fisheries had been only an estimated 3 million tons. However, When collapses of commercial fisheries occurred - such as the dramatic crash of the Monterey-based sardine fishery, once one of the world's most intensive fisheries, after 1948 - the fishermen tended to argue that the stocks had simply migrated elsewhere. Marine scientists debated whether the loss of the Monterey fishery was due to overfishing or instead was due to some natural process. Through the late 1970s, it remained a respectable scientific and policy position to view as unfounded and alarmist the idea that actual loss of fisheries on a long-term basis might be the result of overfishing. There was also a widely-held view among fishery oceanographers and biologists that the harvestable volume of marine fisheries, called the "latent" volume of the biomass, was many times the already inflated tonnage levels that were then being harvested." These views have changed radically in the last twenty years. Today, the accepted premises of debate on ocean fishery issues include as axiomatic the possibility that severe and possibly fatal damage can be done to such resources by excessive fishing. To be sure, there is deep and lasting controversy as to what measures need to be taken in response to the possibility of such damage. But now it is universally understood that the clock has been ticking; today, we have a serious crisis in marine fisheries and ocean environment, and consequently a crisis in ocean resources governance. 2 U.N. Foot & AciiIc. OR;., Tiii: S'I'AVF O1. Woiti,) FISI iRII.S AND AQUACUI'I'LURI., passimn (1. fr), available at http://www.fto.org/dwcrep/wf).i00e/w99ot(eoo.htm [hereinafter STAlE UOF WO)i.II) FisIitIEI'S]. : On the example of' the sardine fishery's crash, see Harry N. Scheiher, Success and Failure in Science-Policy Interactions: Cases.from the Histor q/'Calfbrnia Coastal and Ocean Studies, 1915,-1)73, in iMI'ROVING INTiERIAC'iONS BI,'TWI.:EN COASTAL,SCIENCE AND POLICY 97, 98-105 (National Academy of Science ed., 19)5). See generally ARTIUR F. MCEVOY, Till FiSihERMAN'S PIROBiEM: EcoI,OY;Y AND LAW IN TIIE CAIVFORNIA FisI :imI:s i SO-198O ( 196). For example, Wilbert M. Chapman, internationally recognized in his day as an authority on fisheries science and policy, predicted marine fishery harvests at an tippet- bound of' I.(X) million tons in the year '2(XX. Wilbert M. Chapman, Seatbod and World Famine - A Positive Approach, Address in the Symposium on Food fi'om the Sea (Sept. 23 196.9)(transcript available in the Milner Schaefer Papers, Scripps Institution of Oceanography Archives, U.C. San I)iego). This was an exceptionally optimistic estimate fbr the day, but others who estimated lower latent resotirces in fisheries took a positive view of the long-run potential and certainly (lid not worry much about depletion, if'they even admitted that word to discussion. HeinOnline -- 20 Va. Envtl. L.J. 120 2001 2001] Ocean Governance and the Marine Fisheries Crisis 121 The data published annually in the United Nations Food and Agriculture Organization ("FAO") reports have told the story vividly. Ever larger and more powerful fishing vessels, increasingly efficient gear, and-most ominously-a rapidly increasing tonnage of fishing vessels, impelled by large governmental subsidies for construction and operation, pushed the catch levels up five-fold between 1950 and 1990." Then, after 1989, catch levels began to slump. Several long- established deepwater and coastal fisheries collapsed altogether, among them a once-giant fishery for Northwest Atlantic cod that had been working for centuries. Moreover, the yield per unit of effort also began to show a decline, a sure indication that stocks were being reduced in numbers and that their reproductive potential was being damaged. The FAO data since the mid-1990s have shown that some 60% of the world's fisheries are at risk at different orders of magnitude. Now some 44% are assessed as being "fully exploited." This means that they may already be at the tipping point of overfishing and progressive depletion. In addition, the pressure on fisheries may be higher now that the ecological balance may be adversely affected with only slight variations in either environmental conditions or fishing effort. The truly shocking datum, however, is that one in six of the world's ocean fisheries is now evaluated as "overexploited" or at the point where commercial use will soon be no longer feasible.- Excluded from current assessments in the FAO reports are some once-important fisheries that have already been so fully depleted that they are left out of the calculations. Among the fisheries located within the United States' 200-mile Exclusive Economic Zone, where foreign fishing is not permitted, more than one third of the stocks are deemed over- utilized, and another 44% fully-utilized.' Consumers have felt the effects of the fishing decline, as the global catch of fish on a per capita basis fell by some 10% between 1988 and The data here and fbllowing on catch levels and assessments are from various FAO sources. See OF WORII) FISIIEIlS. suprauAE note 2 at 8-I I and tables passie; R. (irainger & S. M. (;arcia, Chronicles q Marine Fishery Landings, (19.'0-1994): Trend Analysis and Fisheries Potential, in U.N. FAO FISiIERIES TEClINICAL PAI'ER No. .59 (1996); R. Grainger, Global Trends in Fisheries and Agriculture, in TRENIDS AN) FUTIURE' CI IALLENGES FOR U.S. NATIONAl. OCEAN AND COASTAl. POLICY 23h(B. Cicin-Sain et al. eds., 19!9!9). 6 STATE OF WOhI.I) FisIhIEIIES, supra note 2, at 8-1. Ild. U.S. NATIONAL MARINI. FisiiEiliES SERVICE, PUll No. NMFS-F/SPO-22, OUi LIVIN(; OCEANs: Til: ECONOMIC STATUS OF: U.S. Fisiii:,IEii. S (NOAA, U.S. l)ep't of Commerce ed., 1()9(). HeinOnline -- 20 Va. Envtl. L.J. 121 2001 122 Virginia Environmental Law Journal [Vol. 20:119 1992." Moreover, a large proportion of the volume rise in catches of the previous decade consisted of fish species not used for table food, but rather only for animal feed or other secondary products. This put further pressure on the per-capita food fish supply globally. The consumer price index for fish products in the U.S. market accordingly was pushed steadily upward in the 1980s; far exceeding the rates of price increase for poultry or meats."' More recently, prices for certain fish species have risen far out of the reach of ordinary middle-class consumers in developed countries. Some of the once-popular species have disappeared from markets altogether because of fishery closings imposed by coastal state governments or international regulatory bodies.'' All of this evidence sounded the alarm so urgently that even the popular media finally began io give the fisheries crisis some attention. Attention had already been drawn to the environmental issues facing the oceans by the damaging oil spills occurring in several parts of the world.
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