Tending the achilles' heel of NAFO: Canada acts to protect the nose and tail of the Grand Banks

I~ U T T E R W O R T H E I N E M A N N

0308-597X(95)00020-8

Marine Policy, Vol. 19, No. 4, pp. 257-270, 1995 Copyright (~ 1995 Elsevier Science Ltd

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Tending the Achilles' heel of NAFO:

Canada acts to protect the Nose and Tail of the Grand Banks

Douglas Day

A number of important commercial fish stocks in the waters of eastern Canada straddle the boundary between Cana- da's exclusive fishing zone and the high seas. Management of these stocks by Canada and the Northwest Atlantic Fisheries Organisation (NAFO) has failed to prevent stock depletion. It is argued that NAFO has faced a major problem in developing a successful management regime for these straddling stocks: lack of an effective enforcement capability to make members comply with its total allowable catches (TACs), quota allocations, and technical measures and to prevent non- member fishing within its Regulatory Area. Long-standing Canadian concern about NAFO's ability to enforce proper management of straddling stocks in the high seas area of the Grand Banks, prompted passage of an amended Coastal Fisheries Protection Act in May 1994 which allowed Canada to arrest and fine foreign vessels fishing beyond Canada's exclusive fishing zone (El=Z) in contravention of NAFO's conserva- t ion and management regime. It appears that use of this Act in 1994 eliminated fishing by non-members on the Nose and Tall of the Bank, while action against Spanish and Portuguse vessels in March 1995 may provide the help that NAFO needs in terms of non- compliance with its management regime by member states.

Douglas Day is Professor of Geography and Chair of the Geography Department at

continued on page 258

UNCLOS III pays scant attention to the management of fish stocks that straddle the boundary between a coastal state's exclusive zone and adjacent high seas.1 Its coastal state provisions reduced the accessibility of distant water fleets to most of the world's fish resources, and forced them to find alternative fishing locations or cease operations. The fish resources of extended continental shelves located in the Bering Sea, Sea of Okhotsk, Barents Sea, off eastern Canada and elsewhere have provided attractive alternative locations for distant water vessels. Not surprisingly their aggregation in these areas has exposed UNCLOS III's failure to address in any meaningful way the effective management of these straddling stocks and has prompted affected coastal states to focus attention on the transboundary management issues raised by these fleets. 2 At the global level, their concern has been expressed in the recommendations of the U N C E D Conference, the deliberations of the United Nations' Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 3 and the proposed FAO Compliance Agree- ment. Control of these fleets has been a continuing source of difficulty to regional and subregional fisheries management organisations as coastal states have advocated stronger control over international fishing beyond their exclusive zones.

Figure 1 shows that the outer limit of Canada's 200-mile E F Z leaves the Nose and Tail of the Grand Banks within the 'Regulatory Area ' of NAFO. Fish stocks exploited on the Nose and Tail also support important fisheries inside Canada's EFZ. N A F O has failed to prevent a dramatic and continuing decline in the size of these straddling stocks partly because of overfishing and poor management within Canada's E F Z but also because of poorly controlled and often uncontrolled fishing in the Regulatory Area by N A F O members, vessels registered in non-member states, and stateless vessels. As the size of the straddling stocks has dwindled, Canada has questioned NAFO's ability to manage these stocks on a sustainable basis and to enforce its management

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Tending the Achilles' heel of NAFO: D Day

F i g u r e 1. The Nose and Tai l of the Grand Banks.

continued from page 257 Saint Mary's University, Robie St. Halifax, NS B3H 3C3, Canada.

~ln Article 63 (2), it states that "where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek either directly or through appropriate subregional or regional organisations to agree upon the measures necessary for the conservation of these stocks in the adjacent area'. Apart from this, there is a brief reference under Article 61 in which the coastal state is charged with the responsibility of ensuring that the exclusive economic zones' fish resources are not endangered by over- exploitation and the coastal state and international organisations are required to cooperate to achieve that end. 2See, for example, A G O Elferink, 'Fisher- ies in the Sea of Okhotsk High Seas En- clave: Towards a Special Legal Regime?' in G H Blake, W J Hildesley, M A Pratt, R J Ridley, and C H Schofield (editors) The Peaceful Management of Transboundary Resources, Graham and Trotman, Lon- don, 1995, pp 461-474. 3See Hayashi, M 'The Role of the United

continued on page 259

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regime. Faced with a massive dislocation of its east coast economy following the closure of important groundfish fisheries in 1992 and 1993; observing the uncontrolled destruction of juvenile parts of the straddling stocks on the Nose and Tail; and frustrated with the protracted and often unproductive discussions within NAFO on the control of overfishing and ways to improve international enforcement, Canada initiated unilateral action to protect parts of the straddling stocks beyond its E F Z in the spring of 1994. Its Depar tment of Fisheries and Oceans (DFO) arrested a Portuguese-owned, Panamanian-registered trawler (the Kristina Logos ) for fishing cod on the Tail in spite of a NAFO cod moratorium in that area. Canada also amended its Coastal Fisheries Protection Act, thereby assuming the power to arrest foreign vessels exploiting straddling stocks in contravention of NAFO's conservation and management decisions. The broad powers assumed under this Act became more visible in March 1995 with the arrest of the Spanish trawler Estai and subsequent attempts to arrest other Spanish vessels fishing Greenland halibut (turbot) on the Nose and Tail. This paper examines the circumstances that prompted these actions, analyses the short- and long-term objectives of the amended Act, and discusses whether the Act and its use is addressing Canada's concerns about management on the high seas beyond its exclusive zone.

C a n a d a ' s c o n c e r n s

Since the mid-1980s, Canada has voiced four major concerns about

258

continued from page 258 Nations in Managing the World's Fisher- ies' in G H Blake et al., op cit, Ref 2, pp 373-394. 4Report of the Meeting of the Fisheries Commission, September 1993, Annex 4 Statement by B Rawson, Representative of Canada, in NAFO Meeting Proceedings of the General Council and Fisheries Com- mission for 1993, Dartmouth, Canada, 1994, p 109. SM C Gomes, R L Haedrich, and J C Rice, 'Biogeography of Groundfish Assemb- lages on the Grand Bank', Journal of the Northwest Atlantic Fishery Science, Vol 14, pp 13-27


resource management in the Regulatory Area: stock depletion, use of the objection procedure, non-member fishing, and ineffective enforcement. These concerns are interrelated, in that use of the objection procedure by members to circumvent NAFO's TACs and quotas and non-members fishing outside NAFO's management regime have ac- centuated stock depletion, while NAFO's inability to enforce its management decisions has allowed this overfishing. The Coastal Fisheries Protection Act addresses these four issues as they relate to the straddling stocks of the Nose (in N A F O Division 3L) and Tail (in Divisions 3NO), and one straddling stock (turbot) in Division 3M.

Stock depletion

Regulations accompanying the Act identify 28 straddling "stocks" in these areas. Only some are commercially important and, therefore, subject to NA F O management controls: cod, American plaice, yellowtail flounder, witch flounder, redfish, turbot, capelin, and squid. NAFO stock management includes setting annual TACs, allocating quotas to members using a distribution key based on historic fishing patterns, setting minimum mesh sizes and acceptable levels of by-catch.

The catch of six of these straddling stocks declined sharply from a peak in the mid-1980s (Figure 2). In mid-1992 Canada announced a two-year moratorium on commercial fishing of Northern cod inside its EFZ, thereby removing the economic foundation of most Newfound- land fishing outports. Part of this resource inhabits the Nose. Canadian pressure convinced NAFO to declare a moratorium on cod fishing there beginning in 1992, but the European Union (EU) disregarded this and set its own T A C in 1992 and 1993. By late 1993, the stock's spawning stock biomass (SSB) was still declining, prompting the DFO to prohibit even subsistence fishing in the EFZ, whereupon the EU finally agreed to support NAFO's cod moratorium as well as a ban on other directed fisheries on the Nose that could involve significant cod by-catches.

Cod on the Tail belong to the southern Grand Banks stock. Known catches from Divisions 3NO exceeded NAFO-set TACs in the late 1980s (Figure 2b) leading to a sharp decline in the stock's SSB followed by falling catches in the early 1990s. In 1993 NAFO's Scientific Council advised that "all necessary steps should be taken to eliminate the catch of small fish from this stock . . . . The spawning stock biomass may never improve beyond current estimates if fisheries on immature cod continue at current high levels". In early 1994, this cod's SSB was at the lowest level ever observed, 4 Canadian scientists revealed that 90% of individual cod in the stock were juveniles, and N A F O was convinced to declare a complete moratorium on cod fishing at the Tail, including the suspension of fisheries for any regulated stocks involving cod by- catches.

Several commercially important flatfish stocks range across the outer boundary of Canada's EFZ, with the Tail providing an important nursery area for them. 5 Yellowtail flounder is a shallow water species whose juveniles inhabit the southern Grand Banks (including the Tail) before joining adults in waters further north and west. Commercial fishing is concentrated in Division 3N. American .plaice are more widespread, and mostly inhabit waters 55-180 m deep. Witch flounder are found on the continental slope in the southwestern part of the Grand Bank and are, therefore, fished mainly on the Tail. These flatfish

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a. Northern Cod

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6Report of the Meeting of the Fisheries Commission, September 1993, Annex 3 Press Release in NAFO Meeting Proceed- ings of the General Council and Fisheries Commission for 1993, Dartmouth, Cana- da, 1994, p 106 7Hayashi, Mop cit, Ref 2, p 375. 8As a result of excessive exploitation and the need to limit cod by-catch, NAFO lo- wered the redfish TAC. NAFO also banned shrimp trawling at the Nose and Tail to reduce cod by-catches.

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fisheries have suffered similar fates (Figures 2c, d and e). American plaice catches normally exceeded N A F O ' s T A C in the late eighties, the stock's SSB shrank, and both T A C and catch continued to fall in the nineties. A predicted SSB of 13 500 tonnes in 1995 is less than one-tenth of the 1985 size. To stem further resource depletion, N A F O imposed a full mora tor ium on the 3LNO American plaice industry in 1994. The SSBs for both Yellowtail and witch flounder in 3LNO declined by two-thirds between 1985 and 1993, as reported catches exceeded N A F O ' s TACs. Following a Canadian morator ium on these fisheries inside its zone, N A F O banned any direct fisheries in adjacent waters in 1994.

In 1993, N A F O ' s Scientific Council concluded that the stock sizes for all groundfish stocks in the Regulatory Area were shrinking. 6 Stock depletion had reached critical proport ions on most of the commercially important straddling stocks by 1994 so that, as Hayashi notes, the groundfish stocks are generally in the worst condition in history. 7 N A F O placed morator ia or severe restrictions 8 on all the important straddling stock fisheries for 1994, both to conserve the resources of the Regulatory Area and to support Canada 's actions inside its EFZ.

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Tending the Achilles" heel of NAFO: D Day

Part of the stock depletion stemmed from an overly optimistic expansion of Canada's fishing capacity in the late 1970s and early 1980s, from overestimation of stock biomasses, 9 and from Canadian fishery managers increasing the TACs recommended by its scientists. However, in the late 1980s, Canadian groundfish management plans reduced TACs as the SSB of each major straddling stock declined. Overfishing by NAFO members and non-members outside Canada's EFZ also contributed to the rapid stock depletion. In June 1991, NAFO's Scientific Commission concluded that unreported and misreported catches were so prevalent that it could no longer conduct proper scientific assessment of NAFO-managed stocks and that this situation was contributing to a further depletion of fish stocks in the Regulatory Area. As Canada reduced its fishing effort and attempted to rebuild stocks inside its EFZ, the lack of control of fishing effort on the straddling stocks outside the zone assumed ever-increasing importance for its coastal communities.

9See K M Sullivan, 'Conflict in the management of a Northwest Atlantic transboundary fish stock' Marine Policy, April 1989, pp 118-136 and L Harris, Indepen- dent Review of the State of the Northern Cod Stock, DFO, Ottawa, May 1989. 1°See Oceans Institute of Canada Manag- ing Fishery Resources Beyond 200 miles: Canada's Options to protect Northwest Atlantic Straddling Stocks. Prepared for the Fisheries Council of Canada. Ottawa, January 1990, and NAFO Meetings and Decisions, 1979-1992, Dartmouth, Cana- da

Overfishing by contracting parties

Canadian officials have identified three sources of overfishing by Contracting Parties that have undermined NAFO's ability to conserve straddling stocks: use of the objection clause to set autonomous quotas, unreported and misreported catches resulting from members failing to control their own fleets, and non-compliance with technical measures (e.g., minimum mesh sizes) which allows excessive catches of young fish.

The EEC/EU (and Spain and Portugal before they entered the EEC/EU) has frequently used the objection procedure under Article XII of the NAFO Convention to exempt its members from NAFO's TACs, and allocations for groundfish stocks in Divisions 3LNO, from the cod moratorium in 3L, and from restrictions on fishing other stocks in the Regulatory Area.l° In 1988, NAFO's General Council requested members not to make excessive or inappropriate use of Article XII, as its repeated use against the TACs, allocations, and species/area moratoria set by its Fisheries Commission would damage the living resources in the Regulatory Area and in coastal zones.

In spite of this resolution and another in 1989, the EEC/EU has continued to use the objection procedure in the 1990s when it has not agreed with a management decision of the majority of NAFO members. For example, the 1992 NAFO-determined redfish and witch flounder quotas for the EEC on the Nose and Tail were set at 476 and zero tonnes respectively: the EEC objected and set autonomous quotas at 6 000 tonnes and 1 000 tonnes respectively. Its action made the effective TAC for each species substantially higher than the approved NAFO TAC. Clearly such use of the objection procedure undermines NAFO's conservation and management regime in much the same way as fishing by non-members but, because it is done in accordance with the NAFO Convention, the objection procedure allows overfishing to assume the mantle of legality. It is perhaps not surprising that Canada has attempted to have Article XII amended.

Overfishing by non-members

From detailed air and sea surveillance of its extended continental

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11Annex 4: Non-Contracting Parties Fishing Activity in the NAFO Regulatory Area by the Canadian Delegation in Report of the First Meeting of the Standing Com- mittee on Fishing Activities of Non- Contracting Parties in the Regulatory Area (STACFAC), January 1991. In NAFO Meeting Proceedings of the General Coun- cil and the Fisheries Commission for 1991, Dartmouth, Canada, 1992, pp 43-53. 12Annex 5: Non-Contracting Parties Fishing Activity in the NAFO Regulatory Area by the EEC Delegation in The Report of the First Meeting of the Standing Com- mittee on Fishing Activities of Non- Contracting Parties in the Regulatory Area (STACFAC), January 1991. In NAFO Meeting Proceedings of the General Coun- cil and the Fisheries Commission for 1991, Dartmouth, Canada, 1991, pp 54--58.

margin, Canada estimated that there was a quadrupling of fishing effort by non-member vessels in the Regulatory Area between 1984 and 1990 and that this was accompanied by a catch increase to an estimated 46 800 tonnes by 1990 (i.e., approximately 17% of the average annual groundfish catch between 1984 and 1990 by all countries fishing in the NAFO area). Canada estimated that 95.5% of this catch comprised cod, flounder, and redfish taken on the Tail. 11 As the size of the demersal stocks supporting these fisheries had decreased significantly by 1990, the increased scale of this non-member activity became a serious threat to NAFO's conservation and management measures. Canada, concerned about the impact on resources inside its EFZ, has advocated strong action to control this illegal fishing.

Canadian and E E C / E U reports identified two types of fishing activity by non-members: vessels crewed and owned by nationals of non- Contracting Parties (e.g., the US and Korea) and fishing for their own markets; re-flagged vessels crewed and owned by western Europeans (particularly Spanish and Portuguese) but actually landing much of their catch in EU ports for the EU market or, in the case of redfish, for re-export to Japan. 12 Clearly, in addition to using the objection procedure to raise their catches in the NAFO area, Spanish and Portuguese fishing interests were registering their vessels in non-member countries as a second way to circumvent NAFO's management framework. These re-flagged vessels remained a major source of concern to Canadian authorities and the N A F O General Council in early 1994.

Canada has advocated various measures to eliminate this illegal fishing in the Regulatory Area, including closing NAFO-member ports to offending vessels, and requiring a Certificate of Harvest Origin to indicate whether fish or fish products made from NAFO-regulated groundfish species were caught within or outside the Regulatory Area. Although NAF O considers a landing certificate an essential first step towards a long-term limitation of trade in fish taken in contravention of its conservation regime, its members preferred not to act quickly on these measures in 1993 but to await the outcome of the UN Conference on Managing Straddling Fish Stocks and Highly Migratory Fish Stocks and the FAO's Compliance Agreement.

NAFO has repeatedly used diplomatic ddmarches to non-Contracting Parties, and other forms of diplomatic pressure, in an effort to reduce this illegal fishing activity. Their effect has been variable. High level representations by Canada, the EEC/EU, and other members produced a commitment by the Republic of Korea to withdraw all of its vessels by 30 April 1993 and to take the necessary legal steps to become a member of NAFO. Representations to the US produced similar results. No American vessels were fishing in NAFO waters by the beginning of the 1994 season. Of the states accommodating re-flagged vessels, Vene- zuela, Morocco, and Vanuatu have taken positive steps to ensure that no vessels flying their flags fished in the area in 1994.

Elsewhere the effects have not been so positive. Panama, Honduras, and Sierra Leone agreed to de-register some of their west European and Korean-owned vessels by 1994, but Belize actually registered two of the vessels that were de-registered by Panama. Nonetheless, Panama was still the major source of concern to the Canadian government and other NAFO members in 1993-1994 as it played host to most re-flagged vessels. In spite of an agreement with Canada that a commitment not to fish in NAFO waters was to be a condition of registration in Panama,

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that offending vessels would be fined and repeat offenders de- registered, Canada and other NAFO members were not convinced that the level of fines imposed by Panama on offending vessels was appropriate. 13 Consequently, NAFO requested another urgent joint aide mdmoire be sent to Panama to withdraw vessels flying its flag from the area by the beginning of the 1994 fishing season. NAFO members called for new initiatives to deal with the problem of re-flagged vessels and the growing number of stateless vessels (i.e., those not registered in any country) that Canadian surveillance spotted fishing in the region after re-flagged vessels were de-registered by certain countries.

13Normally a vessel was finded US$7 500 if it fished in the NAFO area. 14Annex 5 Notes for an address by B Rawson, Deputy Minister of Fisheries for Canada. Fisheries Commission Meeting, September 1991. In NAFO Meeting Pro- ceedings of the General Council and the Fisheries Commission for 1991, Dad- mouth, Canada, 1992, p 223. 15Eurofish Report, EC shortage of Control and Surveillance Facilities. 31 January 1991.

Ineffective enforcement

Canada has pinpointed lack of effective control over certain fleets in the Regulatory Area as the most important and damaging failing of NAFO. 14 Even though the Scientific Council provided a sound basis for fisheries management and the Fisheries Commission developed a management regime using TACs tied closely to scientific advice, stock depletion was still a major problem. Canada pinpointed the Achilles' heel of NAFO: the third essential component of sound fisheries management - - an effective system of surveillance, control, and enforcement - - had not been developed. In its absence, NAFO TACs were meaningless. The Scientific Council is convinced that unreported and misreported catches are prevalent among Contracting Parties. Canada has pinpointed another problem of enforcement: vessels from non-member countries fish without restraint within NAFO waters. Canada sees the setting of unilateral quotas, inadequately controlled fleets from Contracting Parties, and increasing effort by non-NAFO fleets as aspects of the same problem - - an ineffective enforcement system - - that has facilitated overfishing leading to severe declines in the SSBs of most straddling stocks which, in turn, reduces the resources available to other N A F O members.

The inability of some Contracting Parties to control their own fleets is well illustrated by the EU. There, fisheries surveillance and enforcement is the responsibility of the individual countries: the EU Fisheries Commission has no effective enforcement capability. It has drawn attention to the inadequacy of member states' enforcement ability and has identified Spain and Portugal, the most important European fishers in NAFO waters, as amongst the most deficient in enforcement infrastructure in the communi tyJ 5 Without proper enforcement, even the autonomous TACs and quotas set by the EEC/EU under the objection procedure may be meaningless. N A F O has a critical weakness in the management of straddling stocks: if members states do not have the ability or authority to enforce conservation and management measures on their vessels and if N A F O itself does not have the patrol vessels and aircraft to do so, then who can provide effective enforcement? Of all NAFO members, the only one to put large-scale resources at its disposal for surveillance and monitoring purposes has been Canada.

The Amended Coastal Fisheries Protection Act 1994

In early 1994 most of the important straddling stocks on the Grand Banks were under N A F O moratoria and access to the rest was very

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16Under repeated pressure from the New- foundland Liberal Government, the former federal Conservative Government prom- ised on a number of occasions to halt overfishing in this area, but failed to do so. With a Liberal Government in Ottawa, pub- lic differences between the federal and the Newfoundland governments largely dis- appeared. However, the new federal government was also under considerable pressure from the Newfoundland fishing industry to take more effective action than had been apparent under the Conserva- tives. 17Only the redfish and squid fisheries based upon NAFO-managed stocks in 3LNO remained open to exploitation by directed fisheries after February 1994. Redfish fisheries are pursued in deeper waters along the upper part of the continental slope. Hence, vessels of NAFO members should not have been present on the shallower parts of the Nose and Tail unless they were engaged in squid fishing or directed fisheries based on non- conventional species. With these excep- tions, vessels operating in the Nose and Tail areas were probably contravening NAFO conservation and management measures. 18See Annex II Selective comparative quotas and catches in the Regulatory Area for 1992, in NAFO Meeting Proceedings of the General Council and Fisheries Com- mission for 1993, Dartmouth, Canada, 1994, p 134.

restricted. Yet, Canada and NAFO knew that vessels from non- members and an increasing number of stateless vessels were still fishing these stocks. Given the condition of these stocks and in the absence of any possibility of immediate, effective enforcement measures by NAFO, Canada chose to act unilaterally to stop fishing by re-flagged and stateless vessels. It arrested the Kristina Logos for fishing illegally just beyond its EF Z boundary. This trawler proved a relatively easy target because, although it was flying a Panamanian flag, it had failed to cancel its Canadian registration and so remained subject to Canadian law. The arrest demonstrated the Liberal Government ' s determination to fulfil its election promise to take unilateral action to prevent foreign fishing on the Grand Banks if foreign governments failed to do so. ~6 In May, quickly enacted amendments to the Coastal Fisheries Protection Act confirmed its determination.

To justify its actions internationally, these amendments declare that one of the world's major renewable food resources is threatened with extinction by continued exploitation, and that Canada was assuming the power to prohibit certain classes of foreign vessels from exploiting prescribed straddling stocks in NAFO's Regulatory Area in order to ensure that the agreed conservation and management measures of Canada and NAFO are not undermined. In defining N A F O as the institutional framework for its action, the Act focussed on illegal fishing by non-members of NAFO and showed that Canada is prepared to extend its support to that organisation in terms not just of surveillance and monitoring, but also effective enforcement. Canadian patrols by Aurora aircraft, fisheries and naval vessels form the backbone of NAFO's surveillance and monitoring efforts, but the organisation still lacked an effective international enforcement effort to support its stock management efforts. Canada could now advocate that it was showing NAFO how it could cure its Achilles' heel by enlisting the support of the coastal state's full enforcement capabilities. Canada's most vocal oppo- nent was, not unexpectedly, the EU and at NAFO's September 1994 meeting it pleaded that Canada should have waited for a consensus of NAFO members before taking action.

Canada also sought to minimise the amount of opposition to its move through both its timing and the initial definition of targetted vessels. The timing of the amended Act is significant. With the unanimous adoption of the NAFO moratoria on cod and flatfish stocks, vessels of NAFO members should no longer have been working on most parts of the Nose and Tail after February 1994.17 Similar Canadian action before that date could have involved both EU vessels fishing for redfish and witch flounder on the Nose and Tail under the objection clause and American vessels, a8

The regulations accompanying the amended Act define the specific straddling stocks, fishing areas, prescribed conservation measures, and classes of prohibited foreign fishing vessels. The initial set of new regulations pinpointed two specific classes of foreign fishing vessels that Canada would arrest for contravening NAFO's management regime: those registered in, and flying the flag of six named countries (Panama, Cayman Islands, Belize, St. Vincent and the Grenadines, Honduras, Sierra Leone) and vessels without nationality. The former group represents countries with registered vessels fishing in NAFO waters in May 1994 and who had failed to respond positively when requested to withdraw their vessels from these waters or had registered vessels

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recently de-registered by other non-members. Clearly these six countries included a hard core that assigned a low priority to support of NAFO's objectives. 19 The vessels without nationality include those not registered anywhere, not authorised by the registry state to fish within the NAFO area, with no visible markings to indicate a home port, flying a flag without authorisation, sailing under two or more flags according to convenience, or not flying any flag.

The regulations can be amended by Governor in Council at any time, so that the Act provides flexibility in the face of new threats to different stocks in the same areas and threats by vessels with other registrations than those specified in May 1994. TM Although ostensibly designed to target non-member fishing in the Regulatory Area, the latent potential of the Canada's amended Act could be invoked to eliminate more of Canada's concerns about NAFO. The Act embodied the power to make other members conform with majority thinking within NAFO. NAFO's history has been marked by conflict between Canada and the EEC/EU on management measures for straddling stocks. The EEC/EU (and before 1986, Spain and Portugal also) has often occupied a minority position on TA C and quota decisions and invoked the objection procedure to set its own quotas, thus 'legally' allowing it to overfish the straddling (and high seas) stocks. Although the Act's initial target was control of illegal fishing by non-members (especially ex-patriate Spanish and Portuguese vessels), Canada could quickly amend the Regulations to allow the arrest of any EU-registered vessel contravening approved conservation and management measures on the Nose and Tail and, in the case of turbot, in Division 3M. The latent potential of the amended Coastal Fisheries Protection Act included the ability to nullify use of the objection procedure in regard to N A F O decisions on straddling stocks. Canada has advocated revisions to Article XII of NAFO's Convention because continuing use of this clause has undermined the effectiveness of NAFO's management regime and revealed a lack of control over its members. The amended Act provides Canada with a means of obtaining what it has tried unsuccessfully to achieve through NAFO General Council discussions.

19For example, the EEC informed NAFO in 1991 that the Cayman Islands were willing to remove any vessels fishing in the Reg- ulatory Area from their registry. In 1993- 94, however, vessels from the Cayman Islands were still fishing in the NAFO area. a°lf other stocks are found to be common to the EFZ and the Nose and Tail, then the regulations could be amended to afford them protection. However, threats to straddling stocks in different parts of the Reg- ulatory Area would require Parliament's approval to extend the area covered by the Act. 21Eurofish Report, 14 March 1991, BB2.

The Canada-EU 'fish war'

The arrest of the Kristina Logos and the initial set of regulations drove non-member and stateless vessels off the Nose and Tail. Their exodus focussed at tent ion on members ' vessels exploiting those waters. Breaches of N A F O management decisions by them would be clearly visible. The flashpoint was provided by NAFO's decisions on turbot, a newly-managed straddling stock, and the EU reaction to them.

Until recent years most of this resource was found within Canada's EFZ, but the stock has now shifted to just beyond the 200 mile limit, leading Canada (as the coastal state) to demand quota management of the resource by N A F O and to claim special status in the distribution of quotas. EU vessels caught negligible quantities of turbot before 1990 but, facilitated by a one million ECU grant from the EEC/EU to develop the fishery after their vessels were denied access to Namibian coastal resources in 1990, Spain and Portugal began to exploit this resource intensively. Canada noted that the E E C / E U caught an estimated 32 200 tonnes in 1990 and that this substantial catch increase was followed by a 50% cut in Canada's TACfl I The EU accounted for

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22Their previous bilateral fisheries agreement had expired in 1987 as a result of strained relations over the EEC use of the objection procedure at NAFO and the EEC setting its own autonomous quotas. Given the EEC's acceptance of the Northern cod moratorium in 1992, the agreement was possible as it was anticipated by Canada that more normal relations could ensue.

three-quarters of the 1992-1994 turbot catch. Although Canada had carefully monitored the expanding turbot fishery after 1990, turbot was not subjected to NAFO quota management until January 1995. NAFO's apport ionment of quotas acknowledged Canada's special status as the coastal state by granting it 50% of the 27 000 tonnes TAC plus a certain reserve, while other members received quotas based on historic catches. In essence, NAFO's decision (backed by Japan, Russia, Norway, Iceland, and Cuba) recognised that the coastal state should take precedence in quota allocation, a position disputed by the EU, which received only 12.6% (3 400 tonnes) of the TAC instead of the 75% it requested based on historic catches over the 1992-1994 period. The EU lodged an objection, supposedly not to the overall TAC, but its quota. This objection occurred in spite of an EU commitment under a 1993 EU-Canada agreement to respect all NAFO conservation decisions and to help Canada introduce a NAFO dispute settlement procedure. 22

Professing that it accepted NAFO's turbot TAC of 27 000 tonnes, the EU proceeded to assign itself an 18 000 tonnes quota, which it allocated mostly to Spain and Portugal. This meant that, unless other countries (primarily Canada) were to reduce their quotas, the effective TAC (NAFO's plus the net additional EU autonomous quota) would be 41 600 tonnes rather than the 27 000 tonnes approved by the majority of NAFO members. Unless other countries (especially Canada) reduced their catch allocation, the EU action would precipitate overfishing of the turbot resource, although the EU could rationalise its position by pleading that its actions would not have been necessary if it had received a larger quota. At the beginning of March 1995, Canadian surveillance patrols estimated that the EU had surpassed its NAFO-approved allocation (3 400 tonnes), and the DFO decided to use its Coastal Fisheries Protection Act to stop European overfishing of yet another straddling stocks. On 3 March it altered the Act's Regulations to include two new classes of vessels (those of Spain and Portugal) and proceeded to arrest the Spanish trawler the Estai after it failed to respond to Canadian requests to stop fishing, cut its nets, and fled the Nose. Canadian fisheries patrol vessels gave chase and, after firing across the Estai's bow, successfully arrested the trawler. Its captain was charged with illegal fishing, resisting arrest, and catching illegal-sized fish and the vessel was charged with illegal fishing. After its owners posted a $500 000 bond, the Estai was released but not before Canadian authorities had inspected the vessel and its catch and claimed that the Estai was catching primarily young fish, that a secret hold was filled with 25 tonnes of American plaice (supposely a NAFO-protec ted species), and that two sets of books were being used to record different levels of catch. DFO also claimed to have recovered the net used by the Estai, that its mesh was below the minimum size, and that a net liner was used to prevent the escape of small fish. The EU demanded the release of the Estai before participating in negotiations to address Canada's demand for the effective management of the turbot resource. It refuted Canada's claims about the vessel and its catch, and accused Canada of an organised act of piracy. Spain unsuccessfully pressured the EU for sanctions against Canada, claimed that it was fishing the high seas according to international norms and proceeded to take Canada to the International Court of Justice, an action that Canada had specifically tried to exempt itself from when introducing the 1994 amendments to the Coastal Fisheries Protection Act. As bilateral EU-Canada negotia-

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tions at tempted to resolve the dispute, Spanish vessels returned to the Nose to pursue the turbot fishery under the protection of Spanish naval vessels and the surveillance of five Canadian patrol vessels, one of which used newly-installed net-cutting equipment to stop another Spanish trawler working in the area. Canada also at tempted to arrest another Spanish trawler.

Discussion

It is pertinent to ask how effective the Act and its use has been in addressing the four Canadian concerns previously identified. The arrest of the Kristina Logos and the threat of further arrests under the 1994 amendments appear to have deterred re-flagged and stateless vessels from fishing on the Nose and Tail, and therefore Canada's action can be seen as contributing towards the possible recuperation of overexploited straddling stocks. However , just as the coastal state provisions of UNCLOS III prompted distant water fleets to aggregate on resources beyond exclusive zones, so Canada's actions to protect the Nose and Tail has led to more illegal fishing on the nearby Flemish Cap, which is a home to non-straddling stocks. Many of its resources were already heavily depleted before 1994, but are now under greater pressure and without effective protection from NAFO.

The use of the Act in 1995 addressed a different source of overfishing the straddling stocks, namely that based on the use of the objection clause. Its effectiveness can be measured by the outcome of Canada's actions against the Spanish and Portuguese fleets. The confrontation led to Canada-EU negotiations and a bilateral agreement which reduced the effective turbot TAC from 41 600 tonnes to NAFO's T A C of 27 000 tonnes through a re-allocation of NAFO quotas and elimination of the EU autonomous quota. If a newly agreed scheme for more rigorous international enforcement through satellite monitoring of fishing activity and onboard inspection is accepted by other NAFO members, then Canada's actions in 1995 will have achieved substantial progress towards both the sustainable development of the turbot fishery and the emplacement of an enforcement system that will strengthen NAFO's fisheries management capability. These outcomes should be of long-term benefit to all fishers inside and outside the Canadian EF Z and should provide a sounder framework for the development of international fisheries on other non-conventional species among the 28 straddling stocks named by Canada under its DFO regulations.

Of fundamental importance will be the impact of the 1995 fishing dispute on the EU's future use of the objection procedure. Canada's actions in May 1995 have struck at the heart of a continuing management problem for NAFO, namely the ease with which a member can withdraw from the organisation's management framework for a straddling stock if it is aggrieved by a majority decision of NAFO members. Given the frequency and scope of objections by the E E C / E U since the birth of N A F O in 1979, it must bear much of the blame for overfishing straddling stocks in international waters as it has raised the effective TACs above those adopted by N A F O for many stocks and for many years. Although Canada has publicly accepted its mistake of overfishing the straddling stocks inside its E F Z in the early and mid-1980s, there has been no recognition by the E E C / E U that its repeated use of the objection procedure has contributed to the depletion of straddling

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stocks in the Northwest Atlantic. If this is not recognised, further stock depletion will be inevitable unless other members surrender part of their allocations to the EU whenever it lodges an objection. Given NAFO's ineffective enforcement capability the only alternative, as Canada has indicated by its actions against the EU turbot fishing on the Nose and Tail, is to match the EU's move to unilateral quotas with a move to unilateral enforcement to prevent overfishing.

At the heart of the problem is whether real cooperation in straddling stock management can be achieved in the Northwest Atlantic in the face of fierce competition for economic resources. Successful cooperative management of the straddling stocks will require that every fishing fleet will have to make some sacrifice for the common good of the fishery. How much the EU can yield is a critical question for the future of NAFO and the straddling stocks. Its underlying problem centres on the size and disposition of Spanish and Portuguese fishing effort. Spain is the EU's largest fishing power. Together with Portugal, it accounted for about 45% of the EU's employment in the fisheries sector in 1992. When these countries joined the E E C / E U in 1986, the fishing industries of existing members feared their impact on the resources of the European common pond and a condition of their admission to the EEC/EU was that only part of their fleets would be allowed to fish in European waters and that the areas of access would be severely restricted. This condition is subject to review in 1996. To offset this restriction, the E E C / E U has given priority in external fishing relations to finding overseas locations where Spain and Portugal could deploy their large fishing capabilities. The waters off Namibia, Morocco, and in NAFO's Regulatory Area have provided some destinations for their distant water fleets.

Since 1986, the European Fisheries Commission has assigned a greater share of its N A F O quotas to Spain and Portugal in order to offset requests by these countries for greater access to fish resources in European waters and to alleviate fears of other European fishers arising from both further pressure on their resources and Spanish/Portuguese fishing practices. Unfortunately, the exclusion of Spanish vessels from Namibian and other waters and declining NAFO quotas together with domestic pressure to continue restrictions on Spanish/Portuguese access to the North Sea and Irish Sea, has encouraged the E E C / E U to accommodate Spanish/Portuguese demands for higher quotas in the Northwest Atlantic by objecting to its NAFO allocations. So long as enforcement on the Nose and Tail was a N A F O responsibility, the EEC/EU's policy of allowing Spanish and Portuguese owned vessels to overfish the straddling stocks in these areas was not in immediate danger. However , just as coastal states in other parts of the world have indicated that they do not want to suffer the effects of the EU exporting its Spanish/Portuguese overcapacity problem to their coasts, Canada has indicated by its actions since May 1994 that it does not want the effects of an EU problem concentrated on the Nose and Tail.

The impact of Canada's use of the Act on NAFO's enforcement capabilities in the long-term remains uncertain. Its actions since May 1994, although supposedly supporting NAFO's work, have essentially side-lined that organisation in terms of surveillance, monitoring, and enforcement on the Nose and Tail. While NAFO sets the management framework for the straddling stocks in terms of scientific research, establishing TACs and quota allocations, it is Canada that decides on

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how effectively these management decisions are enforced. The weak role of NAFO is shown by the EU-Canada dispute, which has been conducted as a bilateral confrontation about the management of straddling stocks in the high seas area. The international regional fisheries organisation that the UNCLOS III Convention envisages as the con- trolling agency for fisheries in these waters has been relegated to the background throughout the EU-Canada negotiations. Given the EU's less than enthusiastic reaction to many NAFO management decisions and Canada's unsuccessful attempts to secure any strong system of enforcement within NAFO, it is hardly surprising that both have been willing to reduce the international organisation to the status of a by-stander. However, the confrontation between Canada and the EU precipitated by NAFO's inept fisheries enforcement has led to a bilateral agreement between the organisation's two strongest members that focusses on the Achilles' heel of NAFO. The outcome of the EU/Canada negotiations about turbot fishing on the Nose and Tail will strengthen the fisheries management capabilities of NAFO. The development and acceptance by NAFO of an enforcement system that will both severely limit the EU's ability to export its Spanish and Portuguese fishing problem to the Northwest Atlantic and give NAFO a far greater enforcement capability than the EU Fisheries Commission can develop in its own waters, could provide a long-term improvement in NAFO's fishery management capability that will eliminate the need to use Canada's Coastal Fisheries Protection Act against other NAFO members.

Conclusions

Successful management of straddling stocks requires not only sound scientific advice and decisions by fishery managers within the limitations of scientific knowledge of the stocks, but also real cooperation between the resource managers on either side of the boundary and strong enforcement of joint management decisions. In the case of stocks that straddle an exclusive zone and the high seas, the situation can be complicated by an international fisheries management organisation whose members may have divergent approaches to the exploitation of the high seas components of straddling stocks and to the development of an international capability to enforce management decisions. An added problem for straddling stock management arises if the international organisation does not include all countries that exploit those resources.

The experience of the NAFO illustrates these problems. Illegal fishing by non-members and non-compliance with stock management decisions by member states have contributed to large-scale stock depletion. NAFO's inability to solve these problems left Canada with the option of facing continuing decimation of straddling resources essential to the long term well-being of its coastal communities or of assuming the powers to enforce NAFO management decisions beyond its exclusive zone. Exercising the latter option has heightened the hostility between this coastal state and nations with distant water fishing fleets, some of which still operate on the basis that the Law of the Sea grants them free and virtually unrestricted access to common property resources of the high seas. With the implementation of its Coastal Fisheries Protection Act, Canada has addressed this problem and that of illegal fishing by non-members. In turn, this has forced the EU to

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address the key weakness of N A F O and its lack of control over E U vessels. Hopeful ly what will emerge from the recent confrontations over straddling stocks on the Nose and Tail, is real cooperat ion between N A F O members and a more effective enforcement capability within that organisation so that the once large straddling stocks may be rebuilt and those that are not yet overfished can be subjected to sustainable development for both the benefit of fishers living in the coastal state and the countries owning the distant water fleets.

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Tending the achilles' heel of NAFO: Canada acts to protect the nose and tail of the Grand Banks

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