This article was originally published in Maclean's Magazine on March 27, 1995
Spanish Trawler Released
The Spanish, in fairness, were there first. It may have been an English expedition, led by John Cabot in 1497, that first dipped baskets into the teeming waters of the Grand Banks and hauled them in filled with cod. But within a decade it was daring sailors from the Basque region of northern Spain who first began making the dangerous voyage across the uncharted ocean in a commercial search for fish. In small wooden ships, they set out each spring for Newfoundland to spend the short northern summer catching, drying and salting codfish, leaving for home only when the storms of autumn descended on the remote island's rocky shores. Those long-ago voyages bolster modern-day Spaniards in the belief that they have as much claim to whatever fish remain on the Grand Banks as anyone - certainly as much as any Johnny-come-lately Canadians. As one Spanish editorial writer put it earlier this month: "For centuries before Canada existed, ships sailed by people of the [Spanish] coast have fished for cod. History supports our right to continue fishing."
But times have changed, and with them the notion of who has rights to what. With its seizure of the Spanish trawler Estai in international waters on March 9, Canada served notice that it considers its own rights to the contested Grand Banks fishery to be paramount. The seizure provoked outrage on the far side of the Atlantic, where European Union Fisheries Commissioner Emma Bonino accused Canada of launching a "wave of terror". At the same time, evidence that the Estai had netted immature turbot far smaller than any regulation permits prompted Newfoundland Premier Clyde Wells to brand the vessel's crew as "environmental criminals."
The bellicose rhetoric finally cooled somewhat last week when Canadian officials, after charging the Estai with a variety of offences and accepting a $500,000 bond from its owners, released the ship. But the Estai's departure from the St. John's, Nfld., harbor last Thursday did nothing to resolve the underlying conflict. Indeed, a United Nations-sponsored gathering of maritime nations, which is scheduled to resume on March 27, is likely only to amplify debate over the question at the heart of the matter: who owns the oceans anyway?
The answer, in brief, is no one. And therein lies much of the problem. Nearly four centuries after Dutch scholar Hugo Grotius defined the limits of a country's claim to its adjoining seas by how far a cannon could hurl a cannonball - about three miles at the time - much of the world's oceans remain beyond any national jurisdiction. A patchwork of treaties and a four-month-old international convention give the impression of having brought the rule of law to the high seas, but the reality is less substantial. "No nation," Fisheries Minister Brian Tobin told Maclean's last week, "has authority to set the rules, and more importantly, no nation has authority to enforce the rules. Therefore there are no rules, and it's a free-for-all." Added the Newfoundland-born-and-bred politician: "It is the tragedy of the commons."
Tobin was referring to an earlier free-for-all with devastating consequences. When, in pre-Industrial Revolution Britain, villagers were allowed to graze their livestock freely on so-called "common land," they did so with ever larger herds until the common pastures were destroyed. Scientists say the same pattern of overexploitation of an unpoliced commons, albeit a watery one, is to blame for dramatic declines in 10 of the world's 14 major food fisheries. And as ever more powerful boats have pursued the same diminishing schools of fish, confrontations over those that remain have multiplied. In addition to Canada's row with Spain over turbot:
1) China and Vietnam have exchanged gunshots over fishing rights surrounding the Spratly Islands in the South China Sea.
2) Italy and Greece have squabbled over the former's use of drift nets in the Mediterranean.
3) The U.S. Coast Guard has arrested Canadian fishing boats in waters that both countries claim off the British Columbia coast north of the Queen Charlotte Islands.
4) France and Spain, allies in the confrontation with Canada over turbot, have themselves traded machine-gun fire in a dispute over fishing in the Bay of Biscay.
Against that backdrop, the conciliatory mood that overtook the latest dispute last week struck a rare positive note. Indeed, as the week began, the crisis had appeared to deepen, with announcements from Ottawa that thousands of pounds of what Tobin termed "baby" turbot had been discovered in the Estai's hold, and from Madrid that the Spanish government had dispatched a frigate to protect its fleet on the contested fishing grounds just outside Canada's 200-nautical-mile exclusionary zone. The first to blink were the Spanish. Last Wednesday, the owners of the Estai agreed to post a bond to secure the vessel's release. In turn, Tobin instructed Canadian officials in Brussels to open formal talks on the issue with their EU counterparts.
Those negotiations may prove difficult. For their part, the Europeans gave no indication that they were prepared to accept Tobin's accusations that the Estai had improperly caught immature turbot. Bonino, for one, called the vessel's release "the first step by which the Canadians are trying to be reasonable again." And Spanish government spokesman Manuel Cacho added: "We consider this an illicit act and we are not going to back down." As for Tobin, he made it plain that if European vessels return to the so-called nose and tail on the Grand Banks - areas of continental shelf that extend beyond the 200-mile limit - he was prepared to make more arrests. Said the minister: "If they are fishing in the nose and tail, there won't be negotiations and we will take enforcement action."
The one option not on the table: a return to the open high-seas fishery that once permitted anyone with a boat to participate. For most of history, maritime nations have jealously guarded the freedom of the seas, resisting any attempts by coastal nations to extend their jurisdiction over, or under, the waves. In that traditional view, vessels operating beyond Grotius's three-mile line could do pretty much whatever they liked, so long as they did not endanger other shipping. As for fish or any other riches to be dragged up out of the sea, they belonged to whomever got to them first.
That premise remains, despite a patchwork of treaties and conventions that purport to bring a legal framework to the world's oceans. The most important of those is the United Nations Convention on the Law of the Sea, a document negotiated in the 1970s which came into force only on Nov. 16, 1994, after Guyana became the 60th state to ratify it. (Canada has yet to do so.) The convention gives coastal states expanded jurisdiction up to 12 nautical miles from their shores and exclusive economic rights out to 200 miles. Beyond that arbitrary limit, the convention leaves nations to sort out their competing interests in regional arrangements like the Northwest Atlantic Fisheries Organization (NAFO), the agency that allocates fishing quotas on the disputed portions of the Grand Banks.
The result is a law as leaky as a fishnet. In the case of NAFO regulations, member states are free to reject the quotas that the organization allocates and set their own, invariably far higher limits. There is no penalty. Even when ships do acknowledge NAFO's rules, enforcement of its regulations is halfhearted at best. In the case of the Estai, Canadian inspectors discovered that the mesh of the Spanish vessel's fishing net was 15 mm smaller than the smallest size permitted by NAFO rules. More shocking still: the boat's crew had placed an even smaller-mesh net inside the first, ensuring that virtually no fish escaped its nylon grasp. Those disclosures appalled environmental critics. "The European Union," said Arthur Hanson, president of the Winnipeg-based International Institute for Sustainable Development, "is defending the indefensible."
But inadequate rules are only part of the reason for the rising number of clashes among fishing nations. The other is a dramatic increase in the efficiency of fishers. When most fishing was done by hand from small boats with no better means of preserving their catch than salting it, there was little risk of depleting such rich stocks as those on the Grand Banks. Modern diesel-powered vessels, however, can deploy vast trawler nets, some large enough to swallow a dozen 747s in a single gulp. The electronic gear on the boats' bridges, meanwhile, often rivals that of the jumbo jets. Side-scan sonar reveals the presence of fish so accurately that in some instances operators can even identify the species. Global positioning satellites allow navigators to return to the most productive fishing grounds with a margin of error of less than 100 metres. At the same time, factory vessels that process fish at sea have allowed many nations to send their fleets thousands of kilometres from home in search of catches; among the vessels that regularly fish on the Grand Banks are several from distant Korea and Taiwan.
Against such sophistication, fish have little chance. In fact, the capacity of the world's fishing fleet has expanded far beyond the capacity of the seas to produce fish. By the late 1980s, according to the Washington-based Worldwatch Institute, the Nova Scotia trawler fleet was four times larger than needed to capture its yearly allowance of groundfish. Even more extreme is the situation in Alaska, where so many boats chase halibut that U.S. regulators allow them to fish for as little as two days each year. Meanwhile, international efforts aimed at conserving remaining fish stocks proceed slowly, when they move forward at all. Observed Hanson: "You debate and debate and debate, and meanwhile you fish and fish and fish, And when the last fish are gone, you go home."
Further straining beleaguered fish stocks is the sheer mass of humanity clustered along the world's coastlines. Over half the world's people live within 100 km of an ocean shoreline. The waste they produce, ranging from human feces to plastic packaging, constitutes fully three-quarters of the pollution entering the oceans. Compounding its toxic impact on global fisheries is the fact that 90 per cent of commercially valuable fish species live in the third of the oceans that is nearest to land.
The consequences for commercially valuable fish, on the Grand Banks and elsewhere, have been little short of catastrophic. At the same time as Canadian officials estimate that cod populations off the country's east coast have plummeted by 99 per cent, catches of South African pilchards and polar cod have fallen by 94 per cent, just as landings of haddock, hake and the quaintly named greater yellow croaker have all declined by at least 80 per cent since their peaks in the mid-1970s.
It was to forestall the same fate befalling the turbot that Tobin claimed to have acted against the Spanish. Explained the minister: "We will not accept that resources we are conserving today inside our 200-mile limit will be plundered outside 200 miles." His stance found support among many environmentalists as well as some experts in international law. Declared Worldwatch research associate Anne Platt: "We say this is a test of national will where international law has failed." And in Halifax, David VanderZwaag, director of the marine environmental law program at Dalhousie University, added: "Canada can't stand by and watch an important resource raped."
But other observers, not all of them European, have challenged both the morality and the legality of Canada's action. Armand de Mestral, a McGill University professor of maritime law who helped to negotiate the Law of the Sea convention, noted that Canada's own record of overfishing in the 90 per cent of the Grand Banks already under its control has undermined Tobin's claim to be acting in the interests of conservation. "It is strange," de Mestral points out, "that the only place there are any fish left off our coasts is beyond the 200-mile limit."
The legal questions at issue are unlikely to be resolved soon. Although Spain's government voiced its intention to take the dispute to the International Court at the Hague, if it does so, it will go there alone. Last spring, at the same time as it gave itself the power under Canadian law to seize vessels suspected of overfishing outside the 200-mile limit, Ottawa also withdrew recognition of the International Court's jurisdiction over the fishery.
Tobin, meanwhile, appears set on asserting Canada's control over its continental shelf. Last week, he made it plain to Maclean's that his government would not ratify the existing Law of the Sea convention until a un forum on so-called straddling fish stocks (those that swim back and forth across the 200-mile limit), which resumes on March 27 in New York, produces a new and binding mechanism to resolve future high-seas disputes. Said Tobin: "We see the successful outcome of the UN conference as being an appropriate time to ratify the Law of the Sea." The minister has also promised to unveil a new Oceans Act later this year that will overhaul the country's entire approach to managing the seas surrounding its coastline, which at 243,792 km is the world's longest.
It was also clear last week that the feisty fisheries minister had Canadian public opinion firmly on his side. In an uncharacteristic display of jingoism, newspaper editorialists and talk-show callers from Vancouver to St. John's strongly approved of Canada's firm stand in defence of its own interests. Particularly bellicose was The Toronto Sun, which declared: "Most Canadians are happy we fired the first shots. In fact, we would have aimed lower after the Estai didn't stop at the first two machine-gun bursts." Half a millennium after Basque fishermen made their first hazardous voyages to Newfoundland, it seems, ownership of the seas still goes to those who are willing to defend their claim with the barrel of a cannon.
Maclean's March 27, 1995