canadian foreign policy and straddling stocks; sustainability in an interdependent world

Policy Studies Journal, Vol. 28, No. I, 2000 (219-235)

Canadian Foreign Policy and Straddling Stock&: Sus&bilityin an Interdependent World Alexander Thompson

C& cannot manage straddling fish stocks, which extend beyond Canadian waters into the high seas, without an effective fweign fiheriespolicy. This article examines the politics and fare of two such stocks in the Northwest Atlantic: cod and Greenland halibut. More successjkl management of straddling stocks, I argue, can be achieved if enforcement policies are conducted within the framework of multilateral fmheries organizations. By appealing to the ruks and information provided by these institutions, Canadian governments can pursue w e aggressive and proactive fisheries policies while maintaining a high level of political support at home and abroad.

National governments cannot achieve sustainability by acting in isolation. Many of today’s environment and resource problems are transnational or global in nature, either because their technical properties make them inherently so-as in the case of international and global commons-or because they produce negative externalities that cross borders. The scope of these challenges simply does not correspond to the political scope of nation-states (Mathews, 1989). Thus, we can grasp the dilemmas and possibilities of achieving a sustainable society only by looking at international interactions and by understanding the links between politics at the domestic and international levels. Canada, like other nations, is caught in a web of environmental interdependence (Keohane & Ostrom, 1995), and any comprehensive assessment of Canadian environmental policy must take this into account.

Nowhere is the tension between sustainability and interdependence more tangible than in the realm of ocean fisheries. Fishing is vital in much of the world as both a food source and a basis for economic well-being.l Until well into the 20th century, the living resources of the ocean were believed to be, for all practical purposes, infinite in quantity. In recent years, however, increased fishing effort has coincided with declining stocks and shrinking catches. Between 1970 and 1990, the United Nations Food and Agricultural Organization (FAO) recorded a doubling in the world fishing fleet, from 585,000 to 1.2 million large vessels and a total of 3 million boats. Meanwhile, the FA0 (1995, 1997) estimates that almost 70% of the world’s marine fish stocks are fully fished, overfished, depleted, or recovering, and the catch has fallen in all but 2 of the world’s 15 major marine fishing regions. Despite much greater investment in fishing, the global catch has stagnated since 1989 (FAO, 1996), clearly indicating a crisis in the world’s fisheries (McGoodwin, 1990).

This combination of traditional reliance on fishing and current depletion of stocks is exemplified in the fisheries of the Northwest Atlantic. The waters off Canada’s Atlantic provinces are home to some of the world’s richest and most historically important fisheries. The Grand Banks, a vast continuation of the continental shelf that extends hundreds of miles off shore, has been known to Europeans for its abundant fishing grounds for more than 500 years and, until recently, constituted the economic foundation of Atlantic Canada’s coastal

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population. Indeed, the province of Newfoundland “most likely owes its existence as a modem Western society to fish” (Felt & Locke, 1995, p. 199). Much the same could be said of Nova Scotia, Prince Edward Island, and parts of Quebec. It is in this context that “the profound failure in the practice of conservation in the fishery” (Rogers, 1996, p. 7) warrants study as a topic of urgent policy relevance. In particular, r e n t approaches to the management of fisheries in this region Seem to represent a new and critical first step on the path to sustainability for these coastal communities. Though stocks remain woefully depleted, for the first time in a generation the situation is not deteriorating. The policies behind this trend must be identified and seized upon, with lessons applied to future conservation efforts.

This study examines the fate of Northwest Atlantic fisheries from the perspective of Canadian foreign policy. The Grand Banks fisheries pose a distinct management challenge in that many of the most important stocks extend beyond Canada’s 200-mile Exclusive Economic Zone (EEZ). The portions of those “straddling” stocks that lie in the high seas are subject to the principle of open access that governs resources in international waters. It is impossible, then, for the Canadian government to manage these stocks effectively without the cooperation-r coercion-f other states whose fishers are active in the high seas adjacent to Canada’s national jurisdiction. Without an effective foreign fisheries policy4onducted both on a bilateral basis and through relevant international institutions-canadian policymakers have no hope of sustaining the fisheries of the Northwest Atlantic.

I will examine the 1995 dispute with Spain over Greenland halibut (known as “turbot” in North America) to demonstrate the variety of foreign policy tools employed by the Canadian government to preserve straddling stocks in the face of international fishing pressures. In particular, Canada’s more effective actions during this episode will be contrasted with the policy failures that precipitated the collapse of Northern cod, another straddling stock in the Grand Banks region, in the late 1980s and early 1990s. I will make two principal arguments relevant to policymaking. First, Canada should generally favor aggressive, proactive foreign policies vis-h-vis foreign fishing fleets. Not only are policies of this nature vital to the proper conservation of straddling stocks, they appear to be politically acceptable, and even popular, among domestic constituencies and in the international community. Second, Canadian foreign fisheries policy is most effective when conducted under the auspices of multilateral institutions-the Northwest Atlantic Fisheries Organization (”0) is especially relevant here-which lend Canadian policies a certain legitimacy and serve to justify unilateral enforcement measures.

The article will first proceed with a short discussion of straddling stocks and the management problems they engender. Following an account of the management failure that led to the collapse of cod, an analysis of the 1995 “turbot war” will be used to illustrate what are mostly favorable trends in Canada’s policymaking. Finally, the recent history of Canadian foreign fisheries policy will be used to generate policy prescriptions for straddling stock management in the future.

The Straddling Stocks mblern Thirty years ago, Garrett Hardin (1968) declared that for any situation in

which many individuals have free access to a limited resource the inevitable result

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would be tragic: “Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons” (p. 1244). According to the “tragedy of the commons” model, individually rational decisions for utility maximization create collectively destructive outcomes.2 In his seminal piece of common-property research, H. Scott Gordon (1954, p. 135) applies the same logic to fisheries when he explains that “[tlhe fish in the sea are valueless to the fisherman, because there is no assurance that they will be there for him tomorrow if they are left behind today.” Indeed, fisheries constitute a classic example of the commons dilemma: fishers cannot be excluded from access; at the same time, the patterns of individual use reduce the usefulness of the fishery for all appropriators.

The logic of international, transboundary fisheries as cooperation dilemmas is no different. Historically, states have claimed very narrow territorial waters, and the high seas have always been subject to open access under international law. Since the living resources of the sea belong to no one, fishing tended to occur without restraint. Echoing the “tragedy of the commons,” William Burke (1994, p. 96) goes so far as to say that under freedom of fishing “each participant was virtually forced to join in depleting the fishery as a matter of rational behavior.” Since World War 11, states and international law have dealt with managing the high seas chiefly through the process of extending national jurisdictions, thus putting more of the resources under the control of national governments. By the late 1970s, most states had declared jurisdictional claims of 200 miles in the form of either EEZs, exclusive fishing zones (Ems), territorial seas, or a combination thereof, and these 200-mile limits were subsequently codified in 1982 with the third UN Convention on the Law of the Sea (UNCLOS

While this move to 200-mile zones placed some 90% of fish species within national jurisdictions, it by no means solved management problems or obviated the need for international cooperation. In a number of regions, some of the world’s richest fisheries comprise migratory or straddling stocks that transcend jurisdictional boundaries. While often closely linked to areas of coastal state jurisdiction and mostly contained within an EEZ, straddling stocks extend into international waters. They are thus vulnerable because any conservation measures taken by the coastal state can be undermined by fishing activities in the free-access area outside its 200-mile limit. Thus, we have a finite resource open to all for exploitation. This commons dilemma poses challenging regulatory problems and is truly the Achilles’ heel of UNCLOS I11 vis-his the living resources of the sea.3

Recognizing that straddling stocks would pose a problem, and cognizant of the necessity for cooperative schemes to manage them, the drafters of UNCLOS 111 encouraged signatories to establish regional fisheries organizations when needed (Article 118). In this spirit, following the extension of its EEZ to 200 miles in 1977, Canada sought a new organization that would promote the management of high seas and straddling stocks in the Northwest Atlantic on a multilateral basis. The result was the NAFO, established in 1979 pursuant to the signing of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (”0 Convention, 1996). The NAFO regulatory area contains 11 fish stocks, 8 of which straddle Canada’s EEZ. The remaining stocks lie entirely in the high seas.

Article I1 of the Convention calls for the contracting parties to “establish and maintain an international organization whose object shall be to contribute

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through consultation and cooperation to the optimum utilization, rational management and conservation of the fishery resources of the Convention Area.” To achieve these goals, the NAFO management structure provides for the gathering and exchange of scientific information among contracting parties on the status of stocks (NAFO Convention, 1996, Article VI.l) and the establishment of total allowable catch (TAC) limits, national quotas, and other conservation measures based on these scientific assessments (NAFO Convention, 1996, Article XI.1, 2).

During the two decades since the establishment of NAFO, Canada, which typically pays about half of NAFO’s revenues, has worked mostly within the Organization’s framework to manage straddling stocks in the region. The result is a mixed record of success. This variation has been a function of three factors in particular: (a) overfishing by other NAFO members, especially Spain and Portugal, in contravention of the Organization’s rules; (b) fishing by nonmember states in the NAFO regulatory area: and (c) the effectiveness of Canadian fisheries policies, aimed at managing activities within Canada’s own EEZ (outside of NAFO’s purview) as well as foreign fishing activities in international waters. Of course, there are interaction effects among these variables: in particular, certain foreign policies on the part of Canada, as the dominant player in the region, can diminish overfishing by other states, thus promoting the conservation of straddling stocks. It is these policies with which this study is primarily concerned.

The Collapse of Cod and Its origins The Decline of Stocks

Groundfish, and especially cod, have until very recently been the principal target for fishers off Canada’s eastern coast, accounting historically for about two- thirds of the tonnage and jobs for Atlantic Province fishers (Task Force on Incomes and Adjustment in the Atlantic Fishery, 1993, p. 19: see also Department of Fisheries and Oceans, Communications Directorate, 1994, p. 6). The Newfoundland fishery for Atlantic cod was for centuries the largest and most productive cod fishery in the world. While fishermen in the region have always pursued a variety of species, cod has historically been the most important from an economic standpoint: “Not only did cod migration determine the location of settlements, their availability also determined whether times would be relatively good or bad” (Felt & Locke, 1995, p. 198). In the years leading up to the collapse of cod in 1992, this dependency increased even further. groundfish accounted for 70 to 80% of all landed value for Newfoundland’s fleet between 1978 and 1992 (Government of Canada, 1993a).

The first indications that cod stocks were at serious risk came in the mid- 1980s. A number of scientific reports commissioned by the Department of Fisheries and Oceans (DFO) to assess the status of Atlantic cod suggested that stock growth since the 1977 declaration of a 200-mile EEZ was not as expansive as had generally been thought. An independent panel created in 1989 concluded that fish populations were not growing at all, and that dramatic reductions in fishing would be needed to conserve a number of imperiled stocks, especially Northern cod (Harris, 1990). The Canadian government response-a somewhat reduced catch limit for Northern cod within Canada‘s EEZ and the establishment of another scientific task force (Government of Canada, 1992)-did not stem the decline. By 1992, Northern cod had been driven to commercial extinction, and

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several other cod stocks had declined to the lowest levels ever observed (Department of Fisheries and Oceans, Communications Directorate, 1994, pp. 6- 7). Table 1 demonstrates this de~line.~

Table 1 Canadian Catch ofAtlantic Gmundfish, 1#&2-93 (tons x l,ooo>

Fish Stock ~ ~ 1 9 8 8 1 p 9 n ~ ~ Total Groundfsh 775 748 688 604 418 197 Atlantic Cod 508 475 461 384 183 59

(Northerncod) (211) (207) (245) (188) (21) (moratorium)

PJSte; a Totals through September 15. w: Task Force on Incomes and Adjustment in the Atlantic Fishery, 1993, p. 26.

In response, the Canadian government closed the Northern cod fishery ahead of schedule in 1992 and in July 1993 declared a moratorium on fishing it and many other s to~ks .~ One immediate result was the loss of more than 30,000 jobs among fishers and plant workers (Hutchings & Myers, 1995, p. 39). Despite the cessation of commercial fishing, cod stocks continued to decline throughout 1992 and 1993, and in 1993 Northern cod was at its lowest level of abundance this century (Department of Fisheries and Oceans, Communications Directorate, 1994, p. 7). By 1995, Newfoundland fisheries employed about 10% of the labor they had during the late 1980s and generated only 20% of previous export earnings (Felt & Locke, 1995, p. 219). The Task Force on Incomes and Adjustment in the Atlantic Fishery observed that “[tlhe groundfish resource failure means a total or at least major economic collapse for hundreds of communities in Atlantic Canada” (1993, p. 20).

Explaining the Decline Though Canadian government officials and some scientists have imputed

the collapse of cod to natural factors, such as colder water temperatures, changes in water salinity, and even seal predation, this hypothesis has been largely discredited by recent work (Hutchings & Myers, 1995; Myers, Drinkwater, Barrowman, & Baird, 1993). Ultimately, conclude Hutchings and Myers (1995, p. 81), the principal reason for the collapse of cod was “exploitation at fishing mortalities well in excess of levels at which the stock could have sustained itself.” In other words, the stocks were overfished rather than diminished due to uncontrollable environmental phenomena.

This overexploitation can be traced to two factors: p r schemes by the Canadian government to manage fishing in its waters and excessive foreign fishing of the high-seas portions of cod stocks. The former of these two causes can be partly attributed to reliance on poor scientific knowledge, which led to incorrect estimates of mortality rates and stock abundance. Many of these deficiencies were not made fully clear until the Harris Report of 1990 (Harris, 1990), at which point much of the damage to stocks was irreversible. However, this lack of good information was largely the fault of the Canadian government, which relied heavily on biased commercial catch rate data until the late 1980s. Moreover, scientific uncertainty hardly justifies the consistent increases in total allowable

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catches through 1988, followed by only moderate declines until the 1992 moratorium. In retrospect, it is clear that fisheries development strategies of the 1980s were not close to sustainable and contributed directly to the subsequent fisheries crisis. As we shall see, these policies exemplify the tension between a desire for economic growth-driven by short-term, political considerations-and the need for sustainability over time and across generations.

The establishment of a 200-mile EEZ in 1977 generated a certain (unfounded) optimism within Canada’s DFO (Sullivan, 1989, p. 124). It was thought that the withdrawal of foreign fishing trawlers represented a window of opportunity for a resource-based development strategy, whereby increased fishing could be used as re growth engine for Canada’s ailing Atlantic provinces. Thus began a vast program of increasing catch limits and of subsidizing fishers and processing companies, especially in Newfoundland and Labrador (Felt & Locke, 1995; Rogers, 1996). As a result, 56% of Newfoundland job growth between 1977 and 1986 was due to fisheries expansion, and by 1986 more than one out of every six privately employed workers in the province was attached to the fisheries (Government of Newfoundland and Labrador, 1988). Accordingly, the total fishing effort increased in dramatic fashion.

This approach to fishery management, which obviously contributed to the collapse of groundfish and other species in the early 1990s, was motivated largely by political considerations. In the words of Raymond Rogers (1996, p. 14), “these policies reflect not the fulfilling of the twin mandates of ecological and economic stability, but rather the sacrifice of conservation policy to assuage the cries for more fish.” Though catch limits should be set on scientific grounds, it is not uncommon for the process to become politicized and thus misguided Indeed, far from having been an unemployment panacea, the govemment-driven process of expanding the Atlantic fisheries was destructive first to the stocks and ultimately to the coastal communities that had come to rely so heavily on fishing for their livelihoods.6 The combination of extreme overcapacity created in the 1980sdne study estimated that the Nova Scotia and New Brunswick groundfish fleet had five times the capacity needed to catch their annual quotas (Hacke, 1989bfollowed by closure in 1992 was economically devastating, even with the elaborate public assistance structure that is still in place for east coast fishers (OECD, 1997, p.

In addition to Canada’s misguided management strategy, the activities of foreign fishing fleets contributed significantly to the depletion of cod stocks. Between the mid-1950s and the mid-l970s, the foreign fishing effort in the Northwest Atlantic grew at a faster rate than Canada’s (MUNO, 1980, p. 15). This increasingly frequent practice of distant-water fishing was made possible by improved technology, such as factory freezer trawlers that could remain at sea for months, and was driven by the quest for more commercially viable stocks. Calls for regulation of foreign fleets led to the extension of Canada’s jurisdiction to 200 miles; however, as we have already seen, this failed to place all stocks under Canada’s autonomous control. Important commercial species, including several stocks of cod,’ are exploitable in the high seas as well as within Canada’s EEZ. Indeed, since 1977 at least 15 countries have harvested straddling cod stocks that extend over the “nose” and “tail’’ of the Grand Banks (Hutchings & Myers, 1995, p. 85).

It is not surprising that Canadian government officials blamed foreign fishing of transboundary stocks for the decline of cod (see, for example, Government of Canada, 1993b). In fact, there is considerable merit to this claim.

57).

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Though NAFO was established for the express purpose of coordinating fishing activities among states in order to achieve sound management, two problems arose in the 1980s that undermined NAFO’s effectiveness and the fortunes of Canada’s coastal communities. First, so-called “new flag” states-that is, those that are not members of NAFO and had not traditionally fished in the Northwest Atlantic- began exploiting cod and other straddling species in earnest during the 1980s. Second, two contracting parties of NAFO, Spain and Portugal, began declaring unilateral quotas and fishing beyond the national quotas established by NAFO.

The problem of “new flags” for regional fisheries institutions has been recognized in the international law literature. According to Burke (1994, p. 90). “[tlhe biggest single difficulty in sharing the resource in any fishing context is that, even if current high seas and coastal states reach agreement, under existing law the accord will be at the mercy of new entrants who invoke freedom of fishing.” Harvests by these vessels are by definition in excess of established TACs, and thus conservation efforts are undermined by their presence. In effect, these nonmembers pose a free-rider problem. Applebaum (1993, p. 199) characterizes the Northwest Atlantic situation in precisely this way:

Current catches by non-members of NAFO discriminate against NAFO members by reducing their proportional shares of the total catch, and, through the resulting overfishing, by reducing their actual catches in the long term. Further, discrimination exists because the NAFO members have, over many years, restricted their catches in the interest of stock conservation. while the new entrants have paid none of the costs for the stocks they fish.

Throughout the 1980s, certain nonmember parties-the United States, the Cayman Islands (UK), Chile, Mexico, Malta, Mauritania, Panama, the Republic of Korea, St. Vincent and the Grendadines, and Venezuela-increased their exploitation of straddling stocks (Kwiatkowska, 1993, p. 335). Under the urging of Canada (“Non-Member Fishing”, 1992), NAFO created a Standing Committee on Non-Contracting Parties Fishing Activities in 1991 with a mandate to gather information on nonmember fishing and to discuss measures to stem the phenomenon (NAFO, 1992, pp. 26, 39-40). However, no active strategy was developed to handle the problem, and this was clearly a case of “too little, too late.” The figures speak for themselves. Between 1986 and 1992, NAFO member-states reduced their combined TACs for all stocks (except squid) from 167,965 to 153,365 tons, a reduction of 8.5%. Over the same period, catches of nonmember states of the same stocks grew from 19,300 to 42,600 tons; that is, from 11.5 to 27.7% of combined TACs. In other words, while member-states were reducing their fishing effort, “new flag” vessels increased theirs by 140% (Fauteux, 1993, pp. 44-45; NAFO, 1993). Moreover, since nonmember fishing generally goes unreported, the process of assessing stocks is greatly complicated. According to a statement by the NAFO Scientific Council in 1991, “lack of reporting by non-NAFO flee &..has become so significant that scientists are losing the ability to carry out stock assessments” (NAFO, 1992, p. 89). The targeted stocks, especially cod and flatfish, were significantly diminished. In short, “new flag” fishing in the 1980s and early 1990s can justly be considered a major contributing factor in the collapse of cod.

Canadian efforts to manage straddling stocks faced another foreign threat in the years leading up to the cod moratorium. Two NAFO member-states, Spain and Portugal, had large high-seas operations in the Northwest Atlantic that made

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proper management difficult. This fishing became especially intense after Spain and Portugal’s 1986 accession into the European Community (EC), which subsequently represented these states in NAFO. While the EC was a founding member and had been a strong supporter of the NAFO conservation framework from the outset, its attitude changed abruptly that year. With Spain and Portugal scheduled to join the EC on January 1.1986, an event that would double the total number of EC fishermen and increase its fishing capacity by 75% (Oceans Institute of Canada, 1990, p. 39), the EC came to the 1985 NAFO annual meeting with a radical new position for the 1986 fishing season and beyond: “The EC’s position was that the previous management had been too conservative, as a result of which possible catches had been lost; accordingly, the EC demanded that TACs should go up substantially thus providing higher quotas for all” (Applebaum, 1993, p. 196). In effect, the Europeans wanted to supplant NAFO’s more precautionary management formula with one based on maximum sustainable yield.

One of the necessary compromises made by Canada in achieving multilateral assent for NAFO was that rules established by the Fisheries Commission would be subject to a formalized objection procedure. According to Article XI1 of the NAFO Convention:

“If any Commission member presents to the Executive Secretary an objection to a proposal within sixty days of the date of transmittal specified in the notification of the proposal by the Executive Secretary, the proposal shall not become a binding measure until the expiration of forty days following the date of transmittal specified in the notification of that objection to the Contracting Parties.”

Thus, a proposal becomes a binding measure only on those parties who have not filed an objection in accordance with Article XII-and there is no limitation on the number of objections a party can make or the type of proposal to which an objection may relate.

For each year between 1986 and 1992, the EC used this objection procedure to declare unilateral quotas for “ 3 N O cod (the stock that straddles the “tail” of the Grand Banks) and “2J3KL” cod (which straddles the “nose” of the Grand Banks) that were substantially higher than those set by NAFO. For example, in 1988 the EC quota for 3N0 cod established by NAFO was 14,750 tons, whereas the EC’s unilateral quota was 26,400 mns; and the EC quota for Z3KL cod established by NAFO was zero tons, whereas the EC’s unilateral quota was a full 84,000 tons (Sullivan, 1989, p. 126). These quotas “had no relationship with any system of control” (Fauteux, 1993, p. 43), and it was clear that the EC was not conducting its fishing in a sustainable manner.

Although the Canadian government made clear its displeasure with the EC’s fishing practices, it pursued no active policies to control these destructive activities. And NAFO managed only a diplomatic statement stressing the need for “compliance with NAFO decisions in order to provide for conservation and maintain the traditional spirit of cooperation and mutual understanding in the Organization” (NAFO, 1989). It was not until the relevant cod stocks had completely failed that the EC finally consented to NAFO conservation measures (in the form of moratorium) in 1993. The combination of incompetent domestic policies and utterly inadequate foreign policies on the part of Canada made the collapse of cod virtually inevitable.

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The Turbot Wars of 1995 Two years later, Canada and NAFO faced a new straddling stock

challenge: the conservation of Greenland halibut, or turbot, in the face of rapacious European fishing. This time, however, Canada appeared to have learned from the cod episode, and Canadian policies were much more proactive and aggressive. The new strategy began with a much sounder management scheme within the Canadian EEZ and was most dramatically reflected in Canada’s foreign fisheries policy, which was seriously tested in 1995 by Spain and to a lesser extent by Portugal. Canada used direct action to protect these stocks while simultaneously taking advantage of the NAFO framework to legitimize its actions and generate broader international pressure against the Spanish transgressor. The result was a more sophisticated and effective foreign fisheries policy.

Canada as Unilated Enforcer After the collapse of cod, Spanish and Portuguese fishing efforts turned to

Greenland halibut. While Spain had hauled in only 18 tons of this species in 1989, its total by 1994 was close to 41,000 tons. Over the same period, Canadian fishing of the stock within its own EEZ and fishing by other NAFO members in the high seas portion dropped in accordance with management schemes aimed at preservation (FAO, 1993, Table B-31; NAFO, 1995).

Responding to a marked decline in Greenland halibut stocks, NAFO members decided by a majority vote in September 1994 to reduce the TAC for the stock from 44,000 to 27,000 tons. The EU quota was set at 12%. or about 3,400 tons, whereas Canada was allotted 60%, or about 16,000 tons. Once again exercising its legal option under the NAFO framework to object to decisions, the EU announced that it was not bound by the Organization’s quota, and Spanish and Portuguese fishermen continued to fish Greenland halibut at a pace consistent with the previous few years.

Meanwhile, concerned about the long-term viability of the stock, Canada amended its Coastal Fisheries Protection Act in May 1994 to give itself power to take enforcement action outside its 200-mile zone-that is, in the high seas and the NAFO regulatory area (“An Act to Amend,” 1994). The key provision in this legislation is section 5.2: “No person, being aboard a foreign fishing vessel of a prescribed class, shall, in the NAFO Regulatory Area, fish or prepare to fish for a straddling stock in contravention of any of the prescribed conservation and management measures [of NAFO].” The Act, characterized by the Government of Canada (1994) as ‘‘a national emergency measure,” gave Canadian authorities enforcement and prosecution powers to “disallow” foreign vessels from fishing in the “nose” and “tail” of the Grand Banks. Fisheries protection officers were given powers to arrest individuals believed to have been in contravention of the Act and to “use force that is intended or is likely to disable a foreign fishing vessel if the protection officer believes on reasonable grounds that the force is necessary for the purpose of arresting [the] master” (Section 8.1). In addition, Canadian officials could exercise the power to seize an offending vessel. In early March 1995, these laws were further amended to, in the words of Fisheries Minister Brian Tobin, “protect turbot outside [Canada’s] 200 mile limit from overfishing by European Union vessels” (quoted in Department of Fisheries and Oceans, 1995). Overfishing of Greenland halibut by Spanish and Portuguese fishers was now being targeted explicitly.

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Less than a week later, on March 9,1995, a Canadian patrol vessel fEed shots across the bow of the Estai. a Spanish fishing trawler that was operating in international waters 45 nautical miles outside of Canada’s jurisdictional zone. Canadian authorities proceeded to board the trawler. arrest its captain, and tow the seized ship to St. John’s, Newfoundland, where the captain was jailed.

In immediate response to the Canadian action, Spanish naval frigates were sent to the area, and the EU accused Canada of “not only flagrantly violating international law, but [also ofl failing to observe normal behavior of responsible states .... The arrest is a lawless act against the sovereignty of a Member State of the European Community” (“Spanish Trawler,” 1995). In reply, the Canadian government justified its actions as a necessary response to overfishing and to Spanish fishers’ disregard for the need to conserve stocks on that part of the Grand Banks located outside the Canadian EEZ. Indeed, Fisheries Minister Brian Tobin vowed there would be further arrests if European ships did not stop overfkhing. In the same speech he at once proposed negotiations and announced that the Canadian destroyer Terra Nova, with ship-to-ship missile capability, had been dispatched to the area (Famsworth, 1995).

Following two weeks of dialogue, Tobin announced that he was losing patience and engaged in verbal intimidation: “We have to have some indication very soon that these discussions are going somewhere concrete or Canada has to do what it set out to do several weeks ago-ensure the conservation of the stock” (Sudlow, 1995). Spanish trawlers defied the Canadian warning and began reappearing in the “nose” and “tail” of the Grand Banks under the protection of a Spanish gunboat. On March 26, four Canadian patrol vessels forced several Spanish trawlers to pull up their nets and flee; they attempted but failed to board the Verdel but succeeded in cutting the nets of the trawler Pescamaro Uno after the captain refused to let Canadian officials board. Tobin’s threats continued “If there are other targets of opportunity, we’ll contemplate other operations, employing the full range of options available to us” (Swardson, 1995a).

After more than a month of diplomatic vitriol and negotiations, an agreement was struck between Canada and Spain on April 16 regarding the allocation of turbot for the remainder of 1995 and various improvements to the NAFO management system. When EU officials agreed to sign the pact, they were aware that a contingent of armed Canadian ships was en route to the “nose” and “tail” for another confrontation, indicating that Canada was willing to escalate matters even further (Branswell & Sheppard, 1995). This “Agreed Minute” (1995) was adopted by NAFO with some nonsubstantive revisions. It is important first to realize that the 27,000-ton TAC was upheld, and thus the conservation and viability of the stock were not compromised. As a concession to Spain the national quotas were amended to give Canada and the EU each a 10,000-ton limit. In addition, all charges were dropped against the Spanish captain, and the Estai was released. Canada got what it wanted in a series of improved conservation and surveillance measures:

* improvements to inspection procedures and the handling of apparent

* a modification of the hail system through incorporation of catch

* a minimum retention size of 30 centimeters for Greenland halibut; and * implementation of a Pilot Observer Project for 100% observer

coverage of all vessels fishing in the regulatory area and satellite tracking devices on 35% of all vessels (NAFO, 1996b. p. 152).

infringements;

reports and other features;

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Thus, not only was compliance eventually achieved, but the conservation measures and management framework in the region were substantially fortified.

These negotiations ended in a clear victory for Canada and for the preservation of Greenland halibut. One newspaper (Sheppard, 1995) commented that “Canada achieved its main goal-tougher enforcement of conservation measures and quotas in the waters off Newfoundland. In return, it gave up some fish it never wanted.” Although technically Canada gave up some of its national quota (from 16,000 a year to lO,000), the new quota for 1995 was still more than three times the 3,000 tons that Canadian fishers actually caught in 1994, leaving them plenty of room to spare. By contrast, although the EU’s quota was increased to 10,000 from 3,400, this is well below the more than 50,000 tons European fishermen hauled in the previous year. Canada‘s concessions were more symbolic than real. So while hime Minister Jean Chrbtien was hailing the deal as “a major breakthrough on conservation and enforcement-ur primary objective” (Sheppard, 1995), Spanish Agriculture Minister Luis Atienza was referring to it as “relatively positive” and “the best possible agreement after intensive negotiations” (Branswell & Sheppard, 1995). Most importantly, the establishment of these new rules and quotas significantly altered the behavior of Spain, which in the end fished only 8,607 tons of the stock during 1995 (NAFO, 1997), a fifth of its total the previous year, followed by 7,306 tons in 1996.

The level of political and popular support for Tobin and Chrttien throughout the episode was remarkable. Canadian actions were portrayed by these men as necessary for national pride. Thus Tobin stated: “It’s not the mark of a pirate to reach out in desperation at the eleventh hour and try to save the last [fish] stock” on the Grand Banks. “It’s the mark of a patriot” (quoted in Clayton, 1995). Similarly, Chrktien declared: “We had to show the Canadian flag and show it with some decency and firmness so people would understand” (Palmer & Bates, 1995). There appeared to have been no political downside to the aggressive measures. Upon entering the Canadian House of Commons after the Estai’s capture, Tobin was cheered not only by his own party but by members of the political opposition, including the Quebec separatist party (Swardson, 1995b). Various interest groups, from labor unions to Canadian fishers organizations, actively supported the Administration. For example, pro-government fishers demonstrating on Cape Breton Island carried signs that read “Don’t Back Down” and “Support Tobin” (Zatzman, 1995). And a poll conducted in late March of 1995 showed that an overwhelming 89% of Canadians supported Tobin’s bold policies vis-his foreign fishing (Caragata, 1995). In short, according b Tobin’s predecessor John Crosbie, “Canadians [were] pleased to see Canada using a little muscle to advance its own interests” (Caragata, 1995).

Canadian Policy and NAFO It is quite possible that Canada’s unilateral enforcement efforts would not

have been successful without the presence of NAFO and without Canadian policymakers’ decision to use this presence to their advantage. Far from being a simple case of brute force, Canada’s was a fairly nuanced foreign policy that was sensitive to the international institutional context. Throughout all levels of Canada’s sanctioning process the existence of NAFO and its various regulations legitimized certain enforcement actions and thus served as a catalyst for enforcement and a determinant of the sorts of actions taken. In particular, NAFO inspectors and scientists provided the information necessary to marginalize Spain

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and Portugal within the North Atlantic community. Moreover, the Organization’s rules formalized member-state objections to overfishing practices by the Europeans by setting lower overall TACs and quotas for the EU. In enforcing these multilateral rules, Canada was acting in accordance with international norms-and against a state that was not. Through these mechanisms, Canada was able to engage in unilateral enforcement while maintaining domestic and international support, even though its actions were seen by many as a contravention of international law.

By setting rules that are legitimately derived among an appropriate set of states, formal international institutions can engender the rise of more informal principles and norms that affect behavior by limiting the set of acceptable choices actors can make. If the breaking of a rule is perceived as a violation of an international principle of conduct, noncompliance becomes more costly and punishment by other states becomes possible. When they respond to explicit rule violations, enforcer states are acting in accordance with norms, not just self- interest: “the rules of the international community justify retaliatory behavior and distinguish such behavior from arbitrary violations of international norms” (Snidal, 1995, pp. 61-62). NAFOs ability to create appropriate rules allows it to function as a potential generator of peremptory international norms, at least within a given community. In turn, by explicitly casting its enforcement as a defense of NAFO rules, Canada was able to use the existence of these norms to its advantage.

From the beginning of the Greenland halibut episode, Canada’s unilateral actions were shaped by a certain deference to NAFO and its integrity as an institution. The May 1994 Act to amend the Coastal Fisheries Protection Act (Section 5.2) is anchored on a warning against violations of the “prescribed conservation and management measures” of NAFO. It further threatens to halt forcibly any vessel that engages “in any activity that undermines the effectiveness of conservation and management measures for any straddling stock that is taken under the [NAFO] Convention” (Section 6.3). Moreover, the “Agreed Minute” (1995) signed by Canada and the EU, which ended the dispute, is entirely centered around NAFO as the agent of legal authority in that region. Every paragraph in the main text of the Minute contains at least one reference to the Organization. The following sentence is typical of the document’s language:

“For Canada, any systematic and sustained failure of the European Community to control its fishing vessels in the NAFO Regulatory Area which clearly has resulted in violations of a serious nature of NAFO conservation and enforcement measures may be considered as a breach of this Agreed Minute” (Section C.2).

All violations are defined and all sanctions are justified in terms of NAFOs management structure, which thus served to clarify the legal terrain and delimit the set of legitimate actions available to the states involved. In the end, Canada’s enforcement actions would not have been possible without the approval-either tacit or explicit-f international society, and especially the community of NAFO members. The sense that Spain’s noncompliance was counter to accepted norms of conduct redefined what other member-states considered to be an inappropriate violation of sovereignty, which Canada’s foray into international waters represented, thus allowing Canada to challenge Spain outside its own EEZ.

But the role of other NAFO members was by no means limited to support of Canada. The forceful sanctioning on the part of the Canadian government was accompanied by a high degree of social pressure from the

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international community, especially from EU and NAFO nations. “Had we been facing a strong, absolutely united Europe,” commented one Canadian official, “it would have been a lot, lot tougher” (quoted in Wallace, 1995). Aware of Spain’s history of fishing rule violation, other EU governments were reluctant to go to bat for Spain during the Canada dispute. “Spain looked to its European partners for support,” notes one commentator (Wallace 1995), “and found little more than irritation and pressure to compromise.” Although the European Commission officially condemned Canada’s actions outside of its jurisdiction, the EU never imposed retaliatory sanctions on Canada, as Spain requested, and could not even agree to sign a note of censure against Canada (Palmer & Bates, 1995). In the end, the Commission effectively pressured Spain into accepting a deal that did not even approximate initial Spanish demands.

In addition to the normative advantages of defending NAFO rules, Canadian officials used the diplomatic forum offered by NAFO to state its case against Spain-a case it won using NAFO evidence. Canada’s aggressive actions against foreign fishing would not have been possible without NAFO’s comprehensive surveillance and information mechanisms. The credibility of the information, combined with its availability to all states involved, made it a powerful factor in shaping the positions of other NAFO members vis-h-vis policy toward Greenland halibut from the start. For instance, in the Scientific Council’s 1995 assessment of the state of the stock, it concluded that “the fishery has been, in recent years, exploiting this stock well above levels which may be considered sustainable ....[ A111 available stock indicators (survey results and catch rates in commercial fisheries) suggested a significant decline in stock size since the late- 1980s up to 1994” (NAFO, 1996a, p. 139). With this information in hand, staks were inclined to vote in favor of a low TAC for 1995, as they had done the year before.* By the time of the 1995 clash, the foundation had already been laid to justify some sort of sanctioning in the event of further European ovefishing.

Member-states were aware not only of the general fragility of the stock, but also that the decline in Greenland halibut coincided with Spain’s vigorous pursuit of it. As Spain began to fish more and more Greenland halibut, stocks dwindled and TACs were violated, with the turning point occurring in about 1991. These trends were made clear in NAFO’s annual Statistical Bulletin. Consider the following statement by the Canadian representative at a Fisheries Commission meeting just prior to the Canada-Spain clash: “While Canada and some other Parties, in response to scientific advice, restrained their fisheries, as we all know, the EU’s Greenland halibut fishery has increased substantially since 1990” (NAFO, 1996b, p. 38; emphasis added). Later, after Canada and Spain clashed and were negotiating a deal, why did NAFO members, especially those in the EU, not line up diplomatically behind Spain and oppose Canada’s apparent violation of international law? The statistics and Scientific Council assessments made the situation stark Spain-and Portugal to a lesser extent-was free-riding at the expense of Canada, Russia, Japan, and other NAFO member^.^ Not only were Spanish fishers benefiting at the expense of other countries, they were undermining the future viability of an important commercial stock. Thus, institutional functions that provide for gathering and disseminating information offer “a basis for wider critique” by other states in the case of noncompliance (Chayes & Chayes, 1991, p. 123). As we have seen in the case at hand, this disapproval can be replaced by explicit censure and acts of enforcement if violations are deemed serious enough.

23 1


Conclusion Canadian foreign fisheries policy has demonstrated a shift since the mid-

1990s toward more proactive and, indeed, more effective measures.1° This new orientation, which can be seen as an implementation of lessons learned from the collapse of cod, has manifested itself in aggressive unilateral actions, as exhibited in the turbot case as well as in the seizure of two U.S.-registered fishing vessels in the “tail” of the Grand Banks in July 1994. At the same time, Canada has also pursued a number of initiatives on a multilateral basis, through the UN FA0 and most notably with its spearheading of the UN Convention on Straddling and Highly Migratory Fish Stocks (signed in 1995 and currently awaiting sufficient ratifications to go into effect), which recognizes and confirms the pre-eminence of coastal states’ interests and codifies the precautionary principle for international fisheries conservation (Colburn, 1997; Fauteux, 1993).

What makes the turbot case so interesting, though, is that we see a synergy between unilateral sanctioning of foreign fishing actors and the multilateral institutional setting. Canadian policy was so effective because it used NAFO to its own advantage, employing the information provided by the Organization and justifying its actions as a defense of legitimate international rules. “It all fits together,” commented former Fisheries Minister John Crosbie at the time, “It’s not just Canada being selfish” (quoted in Caragata, 1995). So while Canada’s seizing of Spanish trawlers and cutting of their nets was legally suspect, Canada was seen as the ‘‘good guy” by the majority of the international community. In terms of domestic politics, as we saw above, an aggressive foreign fisheries policy-at least one justified in terms of sustainability and international norms-appears to be a political gold mine.

Canada cannot reverse its failure to manage stocks effectively in the past. It remains to be seen when cod stocks will recover following decades of overfishing by Canadian and foreign fleets. Nevertheless, this analysis suggests a promising path for the future that can be used as a model for situations in which Canada faces international interdependencies in fisheries and other environmental issue-areas. Alongside more effective domestic management, Canada should promote sustainability and its own interests through aggressive foreign policies. To the greatest extent possible, however, Canada should pursue these policies in a manner that is consistent with the international institutional rule structure, thus turning participation in these institutions to its advantage. Such an approach is more effective in terms of conservation and will be more politically successful, at both the domestic and international levels, than more naked aggression. Though Canada has not yet achieved sustainability in many of its international fisheries- indeed, the measures taken in recent years should be seen as ex post “damage control” rather than true conservation policies-the tide seems to be turning in that direction. Canadian policymakers, it seems, now realize that political self- interest, national interest, and long-term sustainability can be compatible.

*** Alexander Thompson is a Ph.D. candidate in the Department of

Political Science at the University of Chicago.

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Notes Globally, fish and other seafood products represent a $70 billion-a-year industry and

account for 16% of animal protein consumed, more than either pork or beef (Laurnti. 1992). Of course, the nutritional reliance on ocean resources is disproportionately great and often indispensable in many coastal and island regions.

* This pessimistic view has been pady contradicted by recent studies on the maintenance of common-pool resources at the local level, which demonstrate that under the right conditions actors can develop effective management schemes in the absence of governmental alternatives. Preeminent among these works is Elinor Ostran's (1990) Governing the Commons. See also Manhews (1993) and Ostran, Gardner, and Walker (1994).

Barbara Kwiatkowska (1993, p. 327) aptly refers to this as "the 'unfinished business' of UNCLOS III." On UNCLOS and the problem of migratory and straddling stocks, see Miles and Burke (1989). Applebaum (1993). and Hayashi (1993). It is interesting to note that Canada, together with seven other coastal state governments, anticipated the straddling stocks problems that would remain with UNCLOS EI and introduced an amendment during its negotiation that would have established a tribunal to determine management measures for such stocks. The proposal was withdrawn when its sponsors realized that it might undermine a successful vote on the overall agreement (Fauteux. 1993. pp. 36-37; Oceans Institute of Canada, 1990, p. 65). Though it has not yet taken effect, the 1995 UN Convention on Straddling and Highly Migratory Fish Stocks is designed to fill in many of these legal lacunae.

It should be noted that declines in catch during this period do not reflect the full extent of stock decline, since there was a substantial increase in fishing effort over the same period. In other words, fewer fish were being harvested with more effort. This problem of overcapacity was described by the Task Force on Incomes and Adjustment in the Atlantic Fishery in 1993 (p. 14): "Too many harvesters use too many boats with too much gear trying to supply too many processing plants by finding and catching too many fish."

While the moratorium on Northem cod fishing has received the most attention and has the most important economic implications, virtually all groundfish fisheries have been subject to some form of closure since the early 1990s. In addition, a 5-year moratorium on commercial Atlantic salmon fishing was declared in 1992.

For several case studies on the plight of Atlantic coastal communities, see Matthews (1993). Ironically, most fishers in the Atlantic Provinces saw the folly of Canadian government policies, and there is some evidence that locally derived management schemes might have been more farsighted and effective. Newfoundland fishers, for example, believed the TAC should have been reduced earlier to allow for higher recruitment (Sullivan, 1989, p. 125). Unfortunately, these communities were not adept at articulating their political wishes or influencing the policymaking process (Apostle, 1993).

These are designated by NAFO's management structure as Atlantic cod 213KL (or Northern cod) and Atlantic cod 3N0.

* From 50,000 tons in the years 1990-93, the TAC dropped to 25,000 in 1994. The 27,OOO-ton TAC for 1995 thus maintained this trend.

Russian and Japanese fishers were also active exploiters of Greenland halibut, although to a lesser extent. For 1995, Russia was allocated 11.85% of the TAC (or 3.200 tons) and Japan 9.63% (or 2.600 tons). All other NAFO members as a group were awarded 5.56% (or 1,500 tons).

lo There is little evidence that this policy shift was normative or ecologically based. The most obvious motives were economic (the collapse of stocks means loss of income and tax base in Atlantic Canada) and political (aggressive foreign fisheries policies are seen by the public as an important defense of national interests. or at least traditions).

Two straddling cod stocks are particularly relevant.

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