Ocean Management, 2 (1975) 285--314 285 © Elsevier Scientific Publishing Company, Amsterdam -- Printed in The Netherlands

A Review of Fisheries Proposals Made at the

Caracas Session of LOS III

Barbara Johnson

ABSTRACT

The paper reviews fisheries proposals made during the Caracas session of LOS III. Of the 83 proposals made in Committee II (which is to determine the nature and limits of national jurisdiction), twelve related solely or in part to fisheries. The position taken in these proposals on issues of fisheries management and allocation is shown in Table I.

While a 200-mile economic zone has been almost universally conceded, positions on exclusive versus preferential rights are far apart. With respect to fishing rights, exclusive rights imply no mandatory sharing, little mention or description of the role of regional fishery organizations, and little reference to allocation priorities. Because the states favouring exclusive rights are more numerous than those favouring preferential rights, a Convention tending to an exclusive rights formula seems most likely.

High-seas fisheries will probably get little attention in a Convention. This could change if Committee I (dealing with the seabed) and Committee II are combined as a result of an initiative to get living and non-living resources under the umbrella of an international authority. However, the interest of a number of key states in keeping anadramous and migratory species out of a general "international sea" agreement make this unlikely. Salmon will probably not get the special provisions the United States and Canada want -- not enough states have a general interest in salmon to want to make a special exception for it.

The next session of the Conference will have to deal more thoroughly with fisheries. There are no "winning" proposals at the present time. The concept of regions, and of disadvantaged states in such regions may be particularly troublesome.

INTRODUCTION

T h i s is a r ev iew o f t h e f i sher ies p r o p o s a l s m a d e d u r i n g t h e Caracas sess ion

of t he T h i r d L a w o f t h e Sea C o n f e r e n c e . Al l t he f o r m a l ac t i v i t y r e l a t e d to

f i sher ies t o o k p a r t i n C o m m i t t e e II , w h i c h is c h a r g e d w i t h d e t e r m i n i n g t he

n a t u r e a n d l imi t s o f n a t i o n a l j u r i s d i c t i o n . T h e t o p i c o f t h e e c o n o m i c z o n e

d o m i n a t e d t he C o m m i t t e e , a n d f i sher ies t h e m s e l v e s were n o t spec i f i ca l ly

d i scussed as a s epa ra t e i t em, Of t he 83 p r o p o s a l s m a d e in t h e C o m m i t t e e ,

o n l y twe lve r e l a t ed so le ly or in g o o d p a r t t o f isher ies , a n d i t is t he se w h i c h

are o u t l i n e d here .

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What goes on in Committee II is very largely a result of caucusing outside the Committee. This is true for fisheries as it is for all aspects o:f taw ~.)f r~il~ sea politics. The alignments that the cosponsoring of proposals reveal are '~b_~:~ final outcome of such caucusing. Because the eventual resolution of any proposal depends on caucusing to build a majority position, the position o.~ ~ groups rather than individual countries has been stressed in this summary.

From a political standpoint, ocean fisheries involve questions of adminis~ tration (how a fishery is to be run) and allocation (how it is to be divided up), In the course of the Third Law of the Sea Conference, separate systems ~:~f fisheries government seem to be emerging in the area of the economic zone and outside that area. The position taken in the twelve proposals on issues of allocation and management is shown in Table I.

The point of this review has been not to worry about the legal terminology of proposals, but to examine some of the existing political difficulties within each issue-area. Only proposals made during the Caracas session have been looked at. While this has the advantage of being up-to-date, it has been an incomplete approach in that the Caracas session appeared to be more a con- t inuation of the Seabed Committee than a radically new institution.

FISHERIES: ISSUES WITHIN THE ECONOMIC ZONE

The politically sensitive fisheries issues in the zone of extended coastal state control concern questions of management, allocation and conflict resolution.

Barbara Johnson is a post-doctoral fellow at the Institute of International Relations, University of British Columbia, Vancouver, Canada. She completed her doctorate from the Department of Political Science at the University of Washington in 1973, her thesis being on regional fishery commissions. She at tended the Caracas session as an observer, and is now involved in projecting the impact of the Third Law of the Sea Conference on the structure of national and international fisheries. This project is one of a number supported by the Donner Canadian Foundat ion grant to the Institute of International Relations for its project on "Canada and the Inter- national Management of the Oceans".

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Giving the coastal state management author i ty means having to decide whether there should be a legally agreed management goal, how the manage- ment regime is to be enforced, what regional organizations can contr ibute to management, and who can belong to them. These issues are discussed here in terms of the most likely ou tcome of the Third Law of the Sea Con- ference -- a 200-mile economic zone. In that zone, a system of exclusive rather than preferential rights seems probable.

Mangement in the economic zone: the goal

Issue

The traditional norm associated with ocean fisheries has been that the op t imum or maximum sustainable yield should be maintained*. It has

been acceptable, because it is a lowest-common denominator type of solution but has been criticized for the same reason. In addition, it is difficult to operationalize, particularly where the question of in terdependent species arises, as in the North Pacific.

The proposals and speeches made during the Caracas session referred to a variety of general biological goals. At issue is: (1) whether or not any management goal should be ment ioned in the Convention; (2) what variant of the traditional biological definit ion should be included if a management

goal is stated in the Convention.

Support

Generally, the proposals either did no t ment ion a management goal at all (e.g., the Nigerian proposal) or they made the point very specifically (e.g., the Soviet bloc, American and EEC proposals). The trend is for developing states and coastal states to oppose restrictions on their management freedom, it being

seen as one aspect of their general author i ty in the economic zone. Delegates' comments on defining a properly managed fishery regime

revealed a preference for a variety of general and vague references. For example, Australia referred to "full op t imum yield", Burma to "op t imum uti l ization", Ivory Coast to " o p t i m u m exploi ta t ion" , and Canada and South Korea to the " max i mum utilization of resources".

* "Optimum sustainable yield" is given in the 1958 Convention. Art. 2, Convention on Fishing and Conservation of the Living Resources of the High Seas. UN Doc. A/CONF. 13/L. 54.

'FABLE I

Fisher ies provis ions ( C o m m i t t e e If, Los I l l )

Pro- Sponso r Subjec t posal

E c o n o m i c zone

M a n a g e m e n t

goal role of inter- e n f o r c e m e n t na t iona l f ishery o rgan iza t ions ( IFO's )

L 21 Nigeria e c o n o m i c no t s t a ted provide recom- (Rev. 1) zone m e n d a t i o n s t h a t

coastal s ta te is to take in to a c c o u n t

L 38 Soviet e c o n o m i c m a x i m u m set in te rna t io - bloc (6) zone a l lowable ca tch , nally agreed

to increase food rules for maxi- p r o d u c t i o n m u m al lowable

ca tch

no t s t a ted

no t s t a t ed

L 39 l and locked e c o n o m i c no t s ta ted and geogra- zone phical ly disad- van taged bloc (21)

L 47 Un i t ed e c o n o m i c Sta tes zone and

c o n t i n e n t a l shelf

L 82 Afr ican e c o n o m i c s ta tes zone (17)

L 40 EEC draf t (9) art icles

on fishe- ries

m a x i m u m sus ta inab le yield -- conside- ring d e p e n d e n t or associa ted species, re levant env. and econ. fac tors and global or reg. rain. s t andards

no t s t a ted

max. yield; food for h u m a n c o n s u m p t i o n

a rb i t r a t e on no t s t a ted l icence fees " t o faci l i ta te order ly d e v e l o p m e n t . . . of living resources"

may set manage- c o m b i n a t i o n m e n t and allo- of coas ta l and ca t ion guide- flag s ta te lines

may be estab- no t s t a t ed l ished to develop living resources ; also d ispute s e t t l e m e n t

data coordina- coastal s tate , t ion, enforce- unless flag men t , work ing s ta te is capa- wi th coastal ble; IFO ' s s ta te on ca tch also have role figures

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Econom ic zone

Management

m e m b e r s h i p in in ternat ional f ishery organizat ions

Al locat ion

sharing man- priori t ies among rights of da tory if max. non-nat ionals landlocked and yield no t geographically dis- taken advantaged states

Dispute s e t t l emen t

n o

res t r ic t ions yes no t s ta ted yes (added

in Rev. 1) no t s ta ted

regional s tates and those fish- ing in region

coastal s tates and o the r LL and GD states of region

no t s ta ted

yes 1. ne ighbour ing developing LL and developing states GD states can fish

2. t radi t ional users in economic zone 3. developing states of ne ighbour ing 4. LL & GD states coastal s tates 5. All o thers

no t s ta ted only specif ied for LL and GD states LL and GD states of a region have

equal rights with nat ionals

yes

not s ta ted

compulso ry se t t l emen t as provided for in conven t ion

1. t radi t ional LL states can fish compulsory fishing states in waters of an se t t l emen t

2. regional s tates adjoining coastal as provided (part icularly state for in LL and GD's) conven t ion

states of region

coastal s tates of region, plus those conce rned wi th and equ ipped for fishing

no t s ta ted

yes

developing LL and o the r GD states can e x p l o i t . . . " w i t h obl iga t ions"

1. trad. fishing states

2. developing states of regions

3. s ta tes wi th f i she ry -dependen t economies

4. regional s tates with l imited f ishery resources

5. l and locked states

yes, but unclear

minimal

s ta tes of region may establish such an or- ganizat ion

yes, specific to fisheries

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Implications

Without a management goal, fishing states fear that the coastal state could be completely arbitrary in setting catch limits. Presumably it would b~ arbitrary either non-deliberately {through lack of scientific information) o~: deliberately. In either case a wastage of resources might occur.

With a specified management goal. coastal states fear they will not be able to establish their author i ty over either third states or regional fishery orgam zations. While the definit ion of the management goal itself is no t intensely controversial, there is some feeling against the use of " m a x i m u m sustainable yie ld" (MSY). This had led some delegations to try to refine the term fur the~ while the coastal countries have preferred to stay with a general non-opera- tional formula. The Soviet bloc, European Communi ty and American propos- als all enlarge on the general biological goal. The Soviet bloc and EEC propos- als both seem to favour food fish over fishmeal product ion, while the Amen- can proposal directs the coastal state to p romote MSY "taking into account relevant environmental and economic factors, and any generally agreed global and regional minimum standards".

Compromise is likely on this issue, and one possibility is that a very general management goal (such as optimizing the yield) for the coastal state in its economic zone will be adopted. The term "MSY" will probably not be used. and no caveats will be added to the basic goal. Such a compromise seems reasonable. In a practical sense, none of the biological definitions are opera- tional, so the choice is not crucial. The utility of having such a clause at all might mostly be a valuable demonstrat ion of good faith on the part of coastal states, and also as a norm for dispute set t lement procedures.

The importance of this issue rests on the expectat ions that various delega- tions have of extended coastal zones. While the debate was often expressed in terms of avoiding waste, few delegates {either f rom developed or develop- ing countries) privately expected declines in overall yield with 200-mile zones. As one African delegate observed, the possibility of granting licences to third states made it more likely that over-utilization would occur rather than under-utilization.

Maintaining a general goal, however vague, is desirable. It seems possible that in limited instances a count ry might set lower quotas than necessary deliberately to establish its sovereignty in the area. A general goal provides a certain pressure against this. [n other cases, a government might be under pressure f rom its own fishermen to exclude all others, and the general goal provides a buffer here against the government 's own consti tuents.

Management: role of international fishery organizations

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Issue

Deciding how fisheries are to be administered in the economic zone is more controversial than arriving at a goal for management. Considering the mixture of national, bilateral and multilateral systems presently operating in ocean fisheries, this is not surprising. In spite of the implied shift to national control resulting from extended coastal zones, there is a wide general recogni- tion that the regional fishery organizations will continue. For instance, all five of the proposals on the economic zone which discussed fisheries at the Caracas session referred to the international fishery organizations. Disputes concern the functions of these organizations in a new system and the relative authori ty of the coastal state versus the regional fishery organization.

The functions suggested for the regional organizations range from coordina- tion of national scientific data to establish catch guidelines, to setting the allow- able catch, dividing it up, and resolving conflicts between the coastal state and third states. The relationship between the coastal states and other members of the regional fishery organization tends to be discussed in over- simplified terms of more authori ty versus less authori ty. The role of each institution in managing and dividing a catch, in theory, different functions, are not separated in the proposals. Proposals of major fishing states require the coastal state to " take into account" the organization's recommendations, or require the organization to "set internationally agreed rules". Other proposals do not refer to the regional organizations, implying that they have at most a consultative role.

Support

While there is a consensus that the fishery organizations are here to stay, there is less agreement over what they should do. Generally, distant-water fishing states (represented in proposals by the EEC group and the Soviet bloc) favour maintaining or expanding the functions now undertaken by the commissions, and state so precisely. The United States proposal, however, is the only one to specifically ment ion allocation as a function of the organiza- tion.

The African proposal (17 states) seems to envisage a regional body having a host of general functions including dispute settlement. The other African proposal -- sponsored by Nigeria -- only says that the regional fishery organi- zation is to provide " recommendat ions" -- nothing is said about what. The proposal made by the landlocked and geographically disadvantaged group is also vague.

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The authori ty of the coastal state vis h vis the regional organization ~ intensely controversial, and debate is couched in the language of an exclusive versus a preferential rights system. Of 38 countries who cosponsored propos- als or made speeches related to this issue, 17 favoured increased authority f(:.r regional organizations, while 21 favoured less. Of the 17 in the first group~ only Cuba and Nigeria (two of the major fishing powers among developing countries) were developing states, Similarly, only Norway and Iceland, among developed states, specifically called for coastal-state dominance.

Implications

This issue will probably be resolved in favour of coastal-state control, with some reference to the regional organizations as advisory or consultative bodies. Exactly what the organizations can do will probably remain unspeci- fied.

There are positive aspects to this kind of solution. There is every reason not to be too precise about functions. First, the fishery organizations could be handicapped as they have been in the past by legal restraints. Secondly, if the organizations are going to survive with extended coastal jurisdiction, they will have to change their functions and adapt to a new environment. For instance, surveillance and enforcement are much more logically done by regional bodies in semi-enclosed seas or geographically disadvantaged areas with extended coastal jurisdiction such as West Africa. tf functions are mentioned in a Convention, though, they are much more likely to be the traditional ones related to biological aspects of fisheries management. Finally, the regional variations are so great that an opt imum set of functions would differ from region to region.

If we assume that any Convention will probably give the coastal state precedence over regional fishery bodies, the question arises whether those organizations can continue in a changed political context . It is at least possible, since many international organizations (particularly those which are regionally based) are in fact dominated by one country. While the future of the Inter- national Commission for Northwest Atlantic Fisheries and the Northeast Atlantic Fisheries Commissions is doubtful , remaining members of the family of fishery commissions should survive the Third Law of the Sea Conference.

Management: enforcement

Issue

While 200-mi le coastal zones add e n o r m o u s areas in which the coastal state is responsible for surveil lance and e n f o r c e m e n t o f its regulat ions, the quest ion o f e n f o r c e m e n t was n o t a major issue during the Caracas session. Of

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the economic-zone proposals dealing with fisheries, only the United States proposal refers to enforcement. States supporting the economic zone see enforcement as the logical function of the coastal state, so do not discuss it. In fact, effective enforcement involves not only the monitoring of violations of fishing rights and regulations, but promptly implementing catch limits and quotas in a fully used fishery.

Support

The US proposal allows the coastal state right of inspection and arrest in its coastal zone, but states that the flag state should undertake legal proceed- ings, if it has the capacity (an apparent reference to the tuna boat seizures). The EEC proposal is comparable, stating that the flag state should undertake enforcement when it is capable of it. It also mentions a role for the regional organization here. Surprisingly, the Soviet bloc proposal makes no mention of enforcement. Given the very hostile reception the EEC proposal got generally, it seems unlikely that a combination of coastal and flag-state jurisdiction could emerge.

Implications

While this will be a serious practical problem which many countries will face if 200-mile zones are adopted, it was no more than a marginal issue during the Caracas session. Eventually, the regional organizations might play a useful role here if their functions are not overly restricted by the Conven- tion.

Management: membership in regional fishery organizations

Issue

The question of who can join regional fishery organizations is essential because the right to manage (or help the coastal state manage) involves a right to share in the fishery as well. This is true whether or not the regional organization is directly involved in dividing up the fishery.

Support

There are three positions here: one of no position and, presumably, no restrictions (Nigerian and US proposals); one that states of the region should belong (African states and landlocked and geographically disadvantaged states); and one that states of the region plus outsiders with a vested interest

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may belong (EEC and Soviet bloc proposals). While the 17-state Africa~ proposal refers just to "states of the region", the landlocked (LL) arid disadvantaged (GD) bloc proposal specifies that coastal states "and other landlocked and geographically disadvantaged states of the region" might belong. Of the 47 delegations that sponsored proposals or made comment on this issue, 39 supported the regional principle, and 16 supported regional states plus others. (A number of countries having cross-memberships i~ different groups supported contradictory proposals, so the total is not 47.)

Implications

If successful, the proposals restricting membership to states of the region would transform the commissions into geographically based groups, which they are only partially now. Most of the major commissions would be invalidated (ICNAF, NEAFC, ICSEAF, IATTC, ICCAT, etc,). The implica- tions of such a decision are related to the other provisions on allocation in a Convention, and on the definition of the various regions.

Allocation: sharing mandatory if yield not taken

Issue

In many cases the coastal state will no t itself be able to take all the avail- able catch in its economic zone. Should it be legally obligated to share the surplus with other states?

Support

The issue and positions are straightforward. Two proposals (the African group of 17 and the LL and GD bloc) do not have such a provision; the remaining four do. Global or regional fishing states (seeking a system of preferential rights) are aligned against coastal states {seeking exclusive rights).

Implications

Developing and o t h e r coastal countries opposing the provision fear that they will not be able to show they can take the opt imum yield, so that the old system will be maintained. Fishing states fear that, wi thout the provision, they will be at the mercy of arbitrary decisions by the coastal state. Whilst it can reasonably be argued that no state would turn back the revenue to be obtained from licencing fees, some such incidents might occur as states demonstrate their jurisdiction over the new zone.

Such a legal provision has value as a norm for behaviour and a:guideline

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for dispute settlement; its utili ty as a practical guide is very limited as it depends on the definition of maximum yield• It must be considered alongside other allocation provisions likely to become part of a new Convention•

Allocation: priorities among non-nationals

Issues

The most contentious issue in the sphere of fisheries is the division of surplus stocks in the economic zone among third states. While the regional fishery organizations could increase their involvement in allocation, the debate tends to assume that the coastal state will be able to say who has priority. Debate centres on what categories of states should be given preference• It is difficult to separate this issue from the discussions on membership in regional organizations, and special provisions for disadvantaged states•

Support

All the proposals differ sharply on this, with the exception of the Nigerian proposal, which does not refer to it. There are at least five groups seeking to establish first priority:

(1) The developing fishing states• States such as Nigeria, Thailand and Ghana, which fish in regional rather than offshore waters, lose a great deal with exclusive 200-mile zones. In particular, they expect to be harmed by a licensing system giving fishing rights to the highest bidder. They there- fore seek a system of regional preference. For example, Ghana noted (A/CONF. 62, SR. 32) that " there was considerable merit in the idea of establishing regional fishing zones".

(2) Developed fishing states. These countries, represented by the EEC (minus U.K.), Soviet bloc and Japan, want traditional fishing rights enmeshed in the Convention. That is, the countries who had a history of fishing in a region would have priority among non-nationals. Given the hostile reception that the EEC proposal received it seems unlikely that a Convention would give traditional non-regional fishing states first priority.

(3) Developing coastal states. The developing states who only fish off their own shores tend to favour a system without established priorities. This leaves them free to adopt an economic approach, selling fishing rights to the highest bidder or the one who offered the best joint-venture package. A general exception to this rule is usually made for the landlocked and disadvantaged group. The position of Western Samoa is typical:

• . . subject to the rights given in a particular region to a landlocked or other geographically disadvantaged state with respect to the resources of the e c o -

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nomic zone, the coastal state should issue licences to other states to explore and exploit the resources of the zone under bilateral agreements that were mutually beneficial .... e.g. a certain percentage of the catch to be sold to ~he, coastal state. (A/CONF. 62/C.2. SR. 24, p . l l )

(4) Landlocked and geographically disadvantaged states. This group is usually treated as a special case as regards access, so it is somewhat confusing to discuss it here. Generally, these states seek to protect their interests by expanding a regional preference system to include the landlocked and dis- advantaged states of the region. According to their proposal (L 39) such states would have equal rights with nationals in the zones of neighbouring coastal states, so they would be counted as part of the coastal state's share rather than as a third party seeking a share of the surplus.

(5} "Neighbouring" states. There is a mixed group of states, developed and developing, whose foreign fishery is mostly in the waters of a neighbour- ing state. They are seeking either first priority or the establishment of reciprocal rights.

Implications

This is a serious issue, particularly as many states will not rapidly expand their fishing capacity to take 100% of the catch in their economic zones. It is difficult to project the outcomes of setting priorities among non-nationals because the form foreign participation will take in economic zones is unclear. While licensing arrangements are of ten referred to (in which case the fee is the economic reward} developing countries generally favour joint-venture arrangements. If they become the dominant arrangement, preference to groups of states could be circumvented.

The position of lea,Ang the priorities open to the coastal state, while it carries certain dangers, might be the easiest position to build a two-thirds majority around. Many developing states now support it; developed coastal states might endorse it and informally recognize certain traditional rights. Developed fishing states would fare far bet ter than developing fishing states under a system in which rights would go to the highest bidder.

However, while a rigid ranking of rights should be avoided, some reference will have to be made to the rights of landlocked and disadvantaged states, and probably to the rights o f traditional fishing states.

Allocation: rights of landlocked and geographiGally d i s a d v a n ~ states

Issue

During the Caracas session it was very widely accepted that the landlocked and geographically disadvantaged states were entitled to special r e c o ~ i f i o n

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in a Convention. In particular, the right of such countries to fish in the eco- nomic zones of neighbouring coastal states was recognized. What was not agreed on was who should be included in the disadvantaged category, where and what kind of rights the group had, and to what extent their rights were to be protected in the Convention as opposed to regional and bilateral arrangements.

Support

There is a group of discernible positions here, although these positions often overlap with a preference for or against regional fisheries arrangements.

(1) The landlocked and geographically disadvantaged bloc. The group that sponsored L39 includes the traditional landlocked and shelflocked states. Seven are developed and fourteen developing. The proposal does not define what a geographically disadvantaged state is, but is otherwise specific. Such states can fish "on an equal and non-discriminatory basis" in the zones of neighbouring coastal states. The latter are not just adjacent states but "states of a region situation within reasonable proximity to a landlocked or other geographically disadvantaged State" (A/CONF. 62/C.2/L.39, Art.2).

(2) Developing coastal states. This group tends to stress the need for re- gional arrangements rather than a universal agreement, and to restrict the disadvantaged group to developing states (e.g., the proposal of 17 African states refers to "developing landlocked and other geographically disadvantaged states" (A/CONF. 62/C.2/L.82).

(3) Developed fishing states. These view the disadvantaged group as a com- petitor for the surplus resources of the zones of coastal states.

The position of three EEC countries who were also disadvantaged states -- Belgium, Luxembourg and the Netherlands -- was confused here, leading them to support contradictory proposals.

Implications

While the move to give landlocked and disadvantaged states fishing rights was politically significant, the issue received at tent ion out of proport ion to its practical importance. It is difficult to imagine any of the landlocked states suddenly becoming major fishing powers. Many of the African coastal states who conceded rights in their zones did so with the full expectation that such states would never exploit them *. The potential of the shelflocked and other disadvantaged states is no t so easy to put aside. Singapore, Kuwait and Belgium are active fishing states now, ye t no proposals suggest that such

* Interviews, delegates f rom coastal s ta tes of West and East Africa.

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states should have global a c c e s s - all proposals limit them to access wit,hil~. their region.

Again, both the definition of the regions and of a disadvantaged state are ye t to be agreed on. Arriving at these definitions will be crucial in determining the role of regions and regional organizations in the future. The definition given in Jamaica's proposals (A/CONF.62/C.2/L.35, Art.5) is important because she belongs to a group of states who are not supporters of L39, but who are nevertheless disadvantaged. Art.5.1 states that "geographically disadvantaged states" means developing states which:

(a) are landlocked; or (b) for geographical, biological or ecological reasons:

(i) derive no substantial economic advantage from establishing an economic zone or patrimonial sea; or

(ii) are adversely affected in their economies by the establishment of economic, zones or patrimonial seas by other states; or

(iii) have short coastlines and cannot uniformly extend their national jurisdiction.

This proposal does not, like L39, call for regional economic zones, and while the definition of disadvantaged states is broad in some senses, it ex- cludes the developed disadvantaged states.

The landlocked and shelflocked group are only the core of a much larger group of states whose fisheries will be harmed or gain little from extension. If this group became cohesive, the entire question of regional economic zones could open up again. Alternatively, the regional issue will be bypassed by a reference to the need for regional or bilateral arrangements, The latter trend is occurring at present. Limited rights for a limited group of disadvan- taged states are being recognized, with the details left open for regional and bilateral negotiation.

Dispute settlement

Issue

From a political standpoint, disputes and their sett lement or non-settle- ment are a continuing process. Only in very special circumstances do disputes proceed to an international legal forum. In the event of a general 200-mile economic zone, fisheries disputes in the zones would relate to:

(1) regulations set by the coastal state {e.g., Icelandic regulations prohibiting West German factory trawlers);

(2) the size of the maximum allowable catch (e.g., Argentine~Polish diffi- culties in 1974 over hake resources of the Patagonian shelf);

(3) division of the catch;

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(4) problems arising from delimitation, surveillance and enforcement . The proposals made on dispute set t lement during the Caracas session were

very general. It was no t clear what aspects of disputes were referred to, but (2) and (3) tend to be stressed.

Support

There are few alignments on this issue, and the posit ion of many countries was no t made clear (dispute set t lement proposals were tabled at the end of the Caracas session). The Soviet and Nigerian proposals do no t ment ion a

dispute se t t lement mechanism. Proposals made by the landlocked and dis- advantaged group, the US and the EEC all refer to a mechanism "as specified in the Convent ion". It is no t clear f rom this if a separate mechanism for fisheries dispute is intended. Only the EEC proposal calls for the inclusion of Art. 8 of the 1958 Convention.

Implications

Considering that Art .8 was never used, it is hard to place much value on a fisheries-dispute set t lement body. Coastal states will be even more anxious now to make a practice of recourse to a third body. It seems more important , then, to emphasize non-legal forms of conflict resolution before it reaches the poin t of requiring a legal forum.

FISHERIES: THE AREA BEYOND THE LIMITS OF NATIONAL JURISDICTION

The proposals for a fisheries regime beyond the economic zone are far less comprehensive than those made for fisheries within the zone. The support behind various initiatives and proposals is politically far more limited and fragmented. There may be several reasons for this difference. First, the much greater interest in the area within national jurisdiction leads to more proposals and more a t tempts to build common positions. Because the stakes are so much less in the area beyond 200-miles, the interest is correspondingly less. At the same time, though, there is much less scope for building common positions on high-seas fisheries, and very strong resistance to developing a general regime for the high seas. Thus the proposals on high-seas living resources made at the Caracas session include four proposals on anadramous species, one on highly migratory species, and only one on a general high-seas fishery regime. While the OAU made specific reference to the need for an integrated high-seas approach, on the whole there seemed to be no movement in this direction during the Caracas session.

The fragmented and limited support for sub-issues of high-seas fishing is

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evident from the nature and number of sponsors. All the anadramous pr,::~ posals are single sponsored, a direct result of the lack of similarity betwee~ the salmon fisheries of the Baltic Sea, the Northwest and Northeast Atlantic~ and the Northwest and Northeast Pacific. While tuna problems are muc~ more similarly globally, there is great difficulty in applying provisions made by the Australian and New Zealand draft articles, and those made b) the Americans in L47 to the other major migratory species, the whale. Finm] the problems of semi-migratory stocks shared by two more coastal states are special problems wherever they exist.

High seas: management goal

Only an American proposal (A/CONF.62/C.2/L.80) defines a thorough goal for high-seas fisheries. Maximum sustainable yield is mentioned but several qualifications are made. This issue is not a controversial one, and seeing that there are no other comprehensive proposals on a regime for high- seas living resources, it may be acceptable.

High seas: management role of international fishery organizations

Again, the Caracas session produced little activity on this issue. The US proposal suggests that high-seas organizations set the allowable catch to maintain MSY, etc. Only four delegations (beyond those making proposals in plenary or Committee II sessions) made precise mention of how fisheries on the high seas should be operated. Generally, the organization was expected to "regulate" the fishery, only South Africa going further and suggesting that enforcement should also be a function.

H i g h - ~ management: enforcement

Enforcement problems on the high seas in the event of a 200-mile economic zone only make sense in terms of specific stocks and problems. As already mentioned, surveillance and enforcement of salmon fishing would have to be done in the economic zones of other states as well as on the high seas to be effective. Tuna pose a quite different problem. Is the IFO or the coastal state to enforce regulations in its economic zone and adjacent to it? Whales already have an international inspection scheme through the IWC. Is this to continue or be replaced by extended coastal state surveillance? Finally, semi- migratory stocks such as halibut now rely on international re~n~lation but national enforcement. Are these patterns to be continued?

With the exception of provisions on migratory species, enforcement issues on the high seas received almost no at tent ion during the Caracas session. Such provisions seem more likely to be worked out in regional arrangements.

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High seas: d ispute settlement

There are no general references to the handling of disputes on the high-seas fisheries in the Plenary or Committee II Summary Records. The EEC proposal and the American proposal both refer to a dispute sett lement mechanism; the EEC proposal apparently carries over the provisions in this regard made in the 1958 Geneva Convention.

High seas: allocation

Although specific references were made to rights of coastal states in allo- cating the highly migratory species, there were few general references to the question of allocation of high-seas fisheries. This is just as well, as it is diffi- cult to think of a common formulation for whale, now taken largely by Japan and the Soviet Union, and tuna. It is even more difficult to assign priorities to the semi-migratory or non-migratory stocks bordering a coastal state's 200-mile zone. Four delegations (Madagascar, India, Mexico and Canada) make reference to a system of preferential rights for the coastal state beyond the area of national jurisdiction. Six other delegations discussing high-seas fishing made no reference to allocation, nor did the spokesman for the OAU.

High seas: membership in IFO's

Only the OAU representative and three delegations referred to an "inter- national au thor i ty" for living resources. Of twenty-three delegations comment- ing on organizing high-seas living resources, six referred to an international authori ty only, thirteen to international or regional, and three to regional bodies only (with one ambiguous).

High seas: highly migratory species

Only two proposals touched on these species: the one of the European Communi ty and that of the Americans. Five delegations made reference to them in their speeches in Plenary or Committee II.

Management goal for highly migratory species

Both the above proposals mention maximum sustainable yield; and imply that this would be calculated on a species basis.

Management role of international fishery organizations

Both proposals give a major role to international or regional organizations for tuna. While management and allocation are both mentioned, the guide-

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lines for dividing the catch are limited to referring to preferential rights ;~: coastal states.

Management: enforcement

The American proposal gives IFO's responsibility for establishing the procedures for attending to violations beyond the economic zone; but coastal states and others are to be the enforcers. The Australian and New Zealand proposal gives the coastal state authori ty within its own economic zone; the flag state enforces beyond this.

Management: membership in the I FO's

This tends to be left open and suggests that existing organizations will continue with regional and non-regional members.

Allocation of highly migratory species

As usual, allocation is potentially the thorniest problem. The Americans and Japanese, as the dominant tuna-fishing powers, are naturally anxious to avoid the subject. The US proposal, however, recognizes the "special interest'" of the coastal state. The other rather large group of states that has primarily a coastal-state interest wants to have the rights of the states increased. They are aware, however, of the difficulties of trying to allocate fish moving as much as tuna.

Any reallocation of whale quotas would be even more disturbing the Japanese and Soviets now informally divide the quotas, and are the only states left with the capacity to whale.

Dispute settlement for highly migratory species

The American proposal has a reference to the general dispute-settlement mechanism which it hopes to see in the Convention. Generally, this issue has received little attention. The existence of the International Whaling Commis- sion and the three commissions dealing with tuna make it probable that these structures would be involved at some level of dispute settlement. There do not seem to be any suggestions that these commissions be dispensed with.

Anadramous species

At issue is whether or not the anadramous fish, which cannot be fenced to 200-mile boundaries, will be granted special status within the Convention. Pacific and Atlantic salmon are overwhelmingly the concern.

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Anadramous species: management goal

The terminology here (e.g., MSY, opt imum yield, etc.) is less an issue than the management procedure. Here the major division is between fishing on the high seas versus fishing close to the mouths of rivers of origin of salmon states. In the absence of a tax or transfer in kind system (as in the Fur Seal Commission) management through inshore fishing transfers allocation to the state of origin or a neighbouring coastal state.

The Canadian and American proposals both criticize the high-seas fishery; other proposals do not raise the issue.

Anadramous species: management role of international fishery organizations

None of the proposals went into much detail on this, so this has been discussed under the issue of membership in such organizations.

Anadramous species: membership in international fishery organizations

As with proposals for membership in regional organizations in the economic zone, this issue is closely tied to that of allocation. Generally, only the dele- gations making proposals were precise on this issue -- countries making general statements on the anadramous problem did not usually refer to it.

There were three positions on this. First, Canada and the United States made no reference to such organizations, implying that they wanted no multilateral bodies here. The American proposal says only that "o ther con- cerned states shall cooperate to ensure effective control by the State of origin". Secondly, the largest group refers to a need for regional organizations or coastal states. Ireland and Sweden tend to bilateral or regional agreements between the state of origin and other coastal states; South Africa and the sponsors of L38 (Soviet bloc proposal) refer to bilateral arrangements. Finally, at the other extreme, the Danish and Japanese proposals call for broader, though still limited, membership organizations. Denmark refers to "all interested States", Japan to "states participating in the exploitation of such species".

In spite of the divisiveness of salmon problems, the proposals relating to membership are not that far apart. None envisages a general high-seas salmon organization, and none in fact excludes the need for at least bilateral arrange- ments. Because the number of concerned states in each salmon region does vary, it seems likely that the most common positon would be bilateral or regional arrangements among coastal states -- this would satisfy Swedish, Danish, Russian and Canadian interests (though the latter would be better protected on the Pacific coast than on the Atlantic). American Bristol Bay

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stocks would get the least protection, in that the heavy present level of no,~ American effor t on these stocks might continue.

Anadramous species: allocation

Dividing up salmon resources is debated in terms of the rights o f the "state of origin" (spawning state) versus all others. This is the general perspective from which salmon have traditionally been viewed, the difference being that the extension to 200 miles increases the probabil i ty that another coastal state into which salmon migrated could conceivably take all the catch. The second possibility is that the likelihood of new entrants moving into the North Pacific or North Atlantic salmon fishery could be caused as longline or other gear and boats are forced ou t of 200-mile zones. Either way, the 200- mile zone is perceived to put existing political and legal understandings in danger.

All the proposals recognize at least a special interest for the state of origin, though none is very precise and all use different terms. The American and Canadian proposals do not give an allocation formula at all, though both imply preferential to exclusive rights. The remaining formulae all suggest types of preferential rights. Two the Irish and the Japanese -- refer solely to the rights of the state of origin. The remaining two the Danish and Soviet bloc proposals -- suggest priorities among non-sta te , f -or igin states. The Danish proposals give the state-of-origin and "o ther coastal s tates" equal preferential rights; while the Soviet bloc proposal recognizes the rights o f "traditional fishing states and those making payments to the State of origin". The Danish proposal would have West German, Japanese and possibly Baltic states' support.

Of the 20 statements or proposals relevant to anadramous species {totalling 25 delegations} only five imply or suggest that the state of origin has an exclusive right to salmon stocks. {These are the United States, Canada, Iceland, Sri Lanka and South Africa.} The remaining statements and proposals gener- ally indicate a preferential rights position, with varying degrees of intensity.

The preferential rights position on salmon is obviously stronger than one of pure exclusiveness, which possibly only the US still supports. It seems a reasonable solution, it being only in the Baltic that the situation does not tend towards a preferential rights regime in practice now. From the Canadian point of view, the Pacific salmon would appear to get the same protect ion they now get from Japan in the INPEC arrangement, extended to all other third states who might enter the fishery, such as South Korea. Alaska salmon stocks would presumably recewe better protection in that the 175 degree lines would no longer be applicable. The Soviet proposal is extremely inter-

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esting, as it seems to reflect an accommodat ion with the Japanese, and presumably would also get support f rom the Baltic salmon states.

Anadramous species: enforcement

Enforcement of either a preferential or exclusive system for salmon is

potential ly a dangerous problem, concerning as it does no t only enforcement in the national economic zone, but also on the high seas or in the economic zones or territorial seas of coastal states in which the salmon are migrating. It is surprising then tha t so little a t tent ion has been given to this. Only the American proposal refers to enforcement provisions for salmon. This (A/CONF.62/C.2 /L47 , Art .21) states tha t "The coastal state may, in the exercise of its rights under this chapter with respect to the renewable natural resources, take such measures, including inspection and arrest, in the eco- nomic zone, and in the case of anadramous species, seaward of the economic zone of hos t states and other states." The proposal is somewhat confusing, as it is not certain if the coastal state referred to is also the state of origin. Assuming it is, it only suggests enforcement on the high seas. Practically, it is hard to imagine one state getting enforcement author i ty in another 's economic zone. One compromise would be to transfer inspection and enforcement procedures to a regional organization. However unpalatable that might be to the United States and Canada it seems the only way that enforcement in the economic zone could be carried ou t even minimally.

Anadramous species: dispute settlement

As with the enforcement provisions for salmon, dispute set t lement did no t surface as an issue, none of the proposals (except the US) mentioning it. The exclusive proposals remove the need for such a mechanism: the state of origin would resolve all differences. Any preferential rights system though requires some informal or formal mechanism for defining the balance of rights between the host state and others.

CONCLUSION

Fisheries are only one part of the package deal that the Third Law of the Sea Conference is supposed to produce. It is therefore impossible to predict what the fisheries provisions will eventually look like, even assuming a Convention is arrived at which all major states ratify.

While a 200-mile economic zone has been almost universally conceded, positions on exclusive versus preferential rights are far apart. With respect to

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fishing rights, exclusive rights imply no mandatory sharing, little mention or description of the role of regional fishery organizations, and little reference, to allocation priorities. Because the states favouring exclusive rights are mor~: numerous than those favouring preferential rights, a Convention tending m an exclusive rights formula seems most likely.

At the moment , high-seas fisheries seem likely to get little at tention in Convention. This could change if Committee I (dealing with the seabed) and Committee II are combined as a result of an initiative to get living and non- living resources under the umbrella of an international authority. The interest of a number of key states in keeping anadramous and migratory species out of a general "international sea" agreement makes this an unlikely starter. although the African states are committed to it. Salmon will probably not get the special provisions the United States and Canada want. The positions among salmon states are different, but the principal difficulty is that not enough states have a general interest in salmon to want to make a special exception for it. The only way to get this kind of general interest would probably be if the states of origin guaranteed some revenue-sharing with an international agency, which they are not likely to do.

It appears that the next session of the Conference will have to deal more exhaustively with fisheries. None of the fisheries proposals made received enough support in and outside of Committee II to make them front-runners. The Nigerian proposal was best received, but it was probably an individual effort without the endorsement of the African group. The other African proposal, while cosponsored by 17 states, indicated disagreement among the Group of 77. Finally, a major document produced at the Conference, which sought to give the position of the coastal-states group {which is made up of developed and developing oceanic coastal states) had no specific fisheries provisions. None of the proposals met the question of allocation in relation to the problems of the many disadvantaged states. A thorough definition of regions, disadvantaged states and disadvantaged regions was not undertaken. leaving much to be done at the next session.

Between the Caracas and Geneva sessions, work continued on fishery questions. The coastal-states group produced its fisheries articles towards the end of the Caracas session. The informal work done by this group was super- ceded and included in that of the Evensen group, an informal grouping of key delegates which sought to put together a single draft treaty for the eco- nomic zone. This same grouping, somewhat enlarged, continued into the Geneva session and became vital to progress in Committee II. The early drafts produced by this group, which had no formal political status, indicated that compromises on fishery provisions were being worked out in the general framework of an exclusive economic zone.

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ACKNOWLEDGEMENT

T h e resea rch for t h i s a r t i c le was s u p p o r t e d b y f u n d s f r o m t h e D o n n e r

C a n a d i a n F o u n d a t i o n , g r a n t e d to t h e I n s t i t u t e o f I n t e r n a t i o n a l R e l a t i o n s ,

U n i v e r s i t y of Br i t i sh C o l u m b i a , fo r i ts p r o j e c t o n " C a n a d a a n d t he I n t e r n a t i o n a l

M a n a g e m e n t o f t h e Oceans" .

ADDENDUM: A PRELIMINARY ANALYSIS OF FISHERIES ISSUES AT THE GENEVA SESSION

Thi s is a ve ry p r e l i m i n a r y su rvey of f i shery p r o v i s i o n s m a d e d u r i n g t he

G e n e v a sess ion o f the T h i r d L a w of the Sea C o n f e r e n c e . T h e p r o v i s i o n s o f a

s ingle d o c u m e n t have b e e n d e s c r i b e d here . T h i s is t h e o f f i c ia l d o c u m e n t pro-

d u c e d b y t h e c h a i r m a n o f C o m m i t t e e II o n May 7, 1 9 7 5 , ( A / C O N F . 62 /W.P . 8/

Pa r t II) . Whi le t h e po l i t i c a l s t a t u s of th i s d o c u m e n t is e x t r e m e l y t e n t a t i v e * ,

t he re is n o q u e s t i o n t h a t i t has s o m e s ta tus . I n a f o r m a l sense , i t is a c o n f e r e n c e

d o c u m e n t , a n d in a n i n f o r m a l sense , b r o a d l y r e p r e s e n t s t h e po l i t i c a l v iews of

t he E v e n s e n g r o u p a n d a t leas t s o m e of t he G r o u p o f 77** . B o t h d e v e l o p e d

a n d d e v e l o p i n g s ta tes , a n d b o t h coas ta l a n d m a r i t i m e s ta tes c o n t r i b u t e d t o

t he i n f o r m a l d o c u m e n t s w h i c h f o r m t h e basis o f t h e s ingle t e x t . T h e l and-

l o c k e d a n d g e o g r a p h i c a l l y d i s a d v a n t a g e d s ta tes ( w h i c h i n c l u d e d e v e l o p e d a n d

* The document is titled "Informal Single Negotiating Text. Part II. Text Presented by the Chairman of the Second Committee". The note by the President of the Conference which precedes it reads:

At its 55th plenary meeting on 18 April 1975, the Conference decided to request the Chairman of its three Main Committees each to prepare a single negotiating text covering the subjects entrusted to his Committee. In his concluding statement, before the Confer- ence made this request, the President stressed that the single text should take account of all the formal and informal discussions held so far, would be informal in character and would not prejudice the position of any delegation nor would it represent any negotiated text or accepted compromise. It should, therefore, be quite clear that the single negotiating text will serve as a procedural device and only provide a basis for negotiation. It must not in any way be regarded as affecting either the status of proposals already made by delegations or the rights of delegations to submit amendments or new proposals.

This document was brought out on the last day of the Conference and was not discussed in Committee II, which raises further questions about its general acceptance. ** The Evensen group is an informal group of representatives from about 30 countries which has met since the spring of 1974 in an attempt to start a movement to draft a single text for a law of the sea treaty. It is one of many informal political coalitions that the law of the sea debate has produced. Its significance lies in its members: it includes almost all major coastal and maritime powers.

The chairman of the 77 Contact Group prepared provisions on the exclusive economic zone, and some of these are reflected in the text. The chairman, in drafting these proposals, did not presume to speak for the entire Group of 77.

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TABLE II

Informal single negotiating text: A/CONF.62/W.P.8/Part II Relevant articles are indicated in brackets.

Management

goal role of international fishery organizations

enforcement

Economic zone: general

Economic zone: anadramous species (Art. 54)

Max. sustainable yield, "as qualified by relevant environ- mental and economic needs of coastal fishing communities and the special requirements of devel- oping countries, and taking into account fishing patterns, the interdependence of stocks and any generally recognized subregional, regional or global minimum standards" (Art, 50) "opt imum utilization" (Art: 51)

not stated

Cooperate with coastal state to prevent "over- exploitation"; exchange data "relevant to the con- servation of fish stocks" (Art. 50)

Minor. May imple- ment Art. 54 provi- sions where appro- priate (coastal state, after consultation, sets total allowable catch)

Coastal state control. Measures include "boarding, arrest, inspection and judicial proceedings" (Art. 60)

Coastal state control within the EZ. BeYond 200 miles ~ t w e e n state of origin and other states concerned

Economic zone: migratory species (Art. 53)

"opt imum utiliza- tion -- both within and beyond the EZ"

" . . . to ensure con- servation"; " . . . pro- hibit, regulate and limit the exploita- tion of marine mammals"

Coastal state control within the EZ' NOt stated beyond 200 miles

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Management Allocation

membership in sharing mandatory international if max. yield not fishery organi- taken zations

priorities among non-nationals

rights of landlocked and geog. disad. states

Dispute settle- ment

"All states con- Yes, according to cerned, including the coastal state's those whose determination of nationals are its catching allowed to fish capacity~ economic in the economic and "o ther national zone" interests" (Art. 50) (Art. 51)

No priorities, but preferences to LL and GD, and recog- nizing " the need to minimize economic dislocation in states whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks" (Art. 51)

Yes, LL may exploit ad- joining CS (Art. 57). Yes, GD may exploit if developing, if in "geo- graphically peculiar" re- gion, o r if have no EZ (Art. 58)

not stated

State of origin and other states fishing these stocks

not stated

Coastal state and not stated other states fish- ing for such stocks

No priorities, but preference to present users. Special consi- deration to those "participating by agreement with the state of origin in measures to renew anadramous stocks, particularly by expenditures for that purpose"

not stated

not stated

not stated

not stated

not stated

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TABLE II (continued)

Managemen~

goal role of international enforcement fishery organizations

High seas: living resources

MSY, "'as qualified by relevant environ- mental and economic factors, including the special requirements of developing coun- tries, and taking into account fishing patterns, the inter- dependence of stocks and generally recom- mended subregional, regional or global minimum standards" (Art. t06)

To exchange "avail- able scientific information, catch and fishing statistics, and other data relevant to the con- servation of fish stocks" (Art. 106)

not stated

deve lop ing s tates) are less r ep re sen ted in this d o c u m e n t , and t h e y a p p e a r to

have each s u b m i t t e d the i r o w n proposa ls . The c o n f e r e n c e d o c u m e n t does , however , r e p r e s e n t t he largest single t r end and for this reason it is useful to

c o m p a r e its fisheries provis ions wi th the var ied g roup o f p roposa l s made

dur ing the Caracas session. F o u r sub jec t areas have been ind ica ted in Tab le I I : e c o n o m i c zone , general ;

e c o n o m i c zone , a n a d r a m o u s ; e c o n o m i c zone , m ig ra to ry ; and high seas, living

resources . Each a rea reveals a t r end to an exclusive f ishing zone as o p p o s e d to the p re fe ren t ia l zone t ha t s o m e of the Caracas p roposa l s cal led for . A t the same t ime, there is a cer ta in a m o u n t of ba lance i n t r o d u c e d b e t w e e n the f ishing r ights o f the coas ta l s ta te and those o f o the r s in this t ex t . These po in t s

can be d e m o n s t r a t e d by re fe r r ing to t he provis ions of t he text .

The use o f " m a x i m u m " versus " o p t i m u m " sus ta inable yie ld as a manage- m e n t goal has been reconc i l ed by re fe rence to b o t h t e rms . T h e res t r ic t ions

on m a x i m u m sus ta inab le yie ld t h a t the coas ta l s ta te m a y app ly are ex tens ive enough t h a t " o p t i m a l " y ie ld would in fac t be the c r i te r ion appl ied.

T h e coas ta l s ta te has a u t h o r i t y to es tabl ish t he a l lowable ca tch , and to set a wide ( b u t def ined) se t o f conse rva t ion regula t ions . The decreased role this impl ies fo r regional o rgan iza t ions is r e f l ec ted in the weak re fe rences to the i r m a n a g e m e n t func t ions . Regional o rgan iza t ions are on ly specif ical ly cal led fo r where the re are shared coas ta l s tocks in ne ighbour ing e c o n o m i c zones or

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Management Allocation

membership in sharing mandatory priorities among rights of international if max. yield not non-nationals landlocked and fishery organi- taken geog. disad. zat ions states

Dispute settle- ment

All states con- not stated not stated not stated not cerned shall stated participate (Art. 106)

where a stock overlaps an economic zone and the high seas. The coastal state is given full enforcement authori ty, again in line with the concept of an exclusive economic zone.

Allocation is placed firmly under the control of the coastal state, but provision for the "manda tory sharing" of a surplus that was part of the preferential economic zone concept has been retained. The problem of allocating this surplus among non-nationals resulted in tor tuous efforts in some of the Caracas proposals to rank preferences among non-nationals. Fortunately, this a t tempt has been dropped, and a general reference made to the needs of landlocked and disadvantaged states, and to those of established users.

While the allocation provisions do give some reasonably non-discriminatory guidelines, they are partly negated by the qualifier that the coastal state may take into account economic and "other national interests" in awarding foreign fishing rights, a phrase so general that it could mean almost anything.

The troublesome problem of fishing rights for landlocked states, and for regional access for "disadvantaged" states has partly been met in these proposals. The general rights of landlocked states to fish in the economic zones of coastal states is recognized, although it is made subject to relevant economic and geographical circumstances, to bilateral, subregional agree- ments, and is restricted to adjoining coastal states. Developed landlocked

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states only get access to neighbouring developed coastal states' zones. The disadvantaged states are restricted to developing coastal states o[ ;:~

subregion or region. These states can claim to be disadvantaged if they are found in a geographically peculiar subregion or have n o exclusive economic zone of their own. This would seem to protect the interests of countries such as Nigeria (which has limited fish resources off its coast), but might no: protect those such as Thailand who have a small zone.

The single provision on anadramous species represents an a t tempt to find a common position in the four proposals put out during the Caracas session. No mention is made of allocation, but the primary role of the state of origin is established in salmon management. There is no ban on the high seas fishery, but a restriction on it to established users. The political compromise that the article represents recognizes the rights of established fishing countries such as Japan as the price for getting a document which generally debars new entrants.

The short general reference to migratory species in the single text reflects again the trend towards an exclusive economic zone. The article indicates a dominant political trend to put migratory species under national control. Nothing is said about the specific problems involved in managing and allocat- ing tuna and whales on a national basis. The provisions for at least regional consultation would have to be established in future articles on migrator).T species for implementation to be meaningful.

The special reference to marine mammals raises questions about the future of the Whaling Commission. The provismn that coastal states and international organizations be allowed to prohibit and otherwise limit exploitation would alter drastically the basis on which the Whaling Commission now operates. The acceptability of such provisions to the Soviets and Japanese is very questionable.

The high-seas provisions for living resources contain much of the language of L80 (the US proposal made at Caracas). Placing anadramous and migratory species under the topic of the economic zone has reduced the interest in these provisions.

There axe no specific articles on fishery dispute settlement. Article 137 does contain room for a general dispute sett lement mechanism to be intro- duced.

CONCLUSION

This text has been analyzed because it suggests the direction in which fishery negotiations moved after the Caracas session. The text which has been analyzed is no t adraf t treaty, noris it the onlyproposal on living resources made during the session. However, it is the official document of the Second

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Committee, and it has drawn on the informal work of powerful coastal and maritime states, both developed and developing.

The future of the entire text on the economic zone and high seas rests in part on the adequacy of its fishing provisions, but more on whether the tentative political foundat ion on which it must rest can be maintained and strengthened. While it probably reflects an acceptable compromise to the Evensen group, many in the Group of 77 will have reservations. In particular, the reaction by landlocked and disadvantaged states, whose interests are separated in the fishery provisions in the text, will be critical. While the fishery provisions make some at tempt to grapple with the problem of regional access which face many small countries, a key question for many landlocked and disadvantaged states may still be access to non-living resources as well. So, fishery provisions will continue to be evaluated, not as a distinct item, but as part of the broad political system being devised for the oceans.