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Document Type

Article

Abstract

Nearly ten years ago, the International Court of Justice made its landmark decision delimiting the United States (U.S.)-Canadian maritime boundary in the Gulf of Maine. That decision was expected to open a new chapter in U.S.-Canadian maritime relations by forcing cooperative management of transboundary fishing stocks for one of the world's richest fishing grounds-Georges Bank. The shared management of this region was not considered problematic by the World Court due to the positive history of U.S.-Canadian relations. Until recently, however, there has been very little shared management in the Georges Bank region. Fish stocks in Georges Bank have been steadily declining, and are currently at an all time low. This decline has occurred despite restrictions on open fishing areas and landing limits that have been imposed on the fisheries in that area since the passage of the Magnuson Fishery Conservation and Management Act. A recent, stark example of the effects of this decline is the joint closure of the New England haddock fishery by Canada and the U.S. due to severe depletion of stocks caused by overfishing. The current condition of the Georges Bank fishery indicates that the United States and Canada have not effectively managed the fishery resources within their own exclusive economic zones (EEZ). It further demonstrates the consequences of their failure to successfully manage the shared resources of Georges Bank. In the past few years there have been limited efforts in cooperative fisheries management between the two countries. The recently approved Canada-United States Agreement of Fisheries Enforcement now requires that each country prohibit its fishermen from operating contrary to fisheries laws of the other country, while in that country's waters. Fishermen who violate the laws can no longer escape enforcement action by retreating to their own waters. This agreement made a positive step toward reducing tensions in the boundary areas between the countries and toward improving U.S.-Canadian coastal conservation efforts. Additionally, in recognition that cooperative fishery management plans between the two countries are more urgently needed than ever before, -the U.S. Congress has renewed its efforts to pass the necessary enabling legislation to allow the U.S. to become a participating member of the Northwest Atlantic Fisheries Organization (NAFO). Although U.S. boats do not now regularly fish outside the EEZ, membership in NAFO would give the U.S. the opportunity to exchange scientific data about the fish stocks in the region, and would give the government leverage to negotiate a fishing quota for U.S. fishermen Most critically for the Georges Bank region, the legislation authorizes negotiations between the U.S. and Canada to seek a mutually beneficial management agreement for transboundary stocks, particularly cod and haddock. At a time when the United States is urging other countries to join fisheries management agreements, and advancing the general argument that fishing countries have a responsibility to participate in regional fishery conservation and management organizations, it should have a moral obligation, if not a legal one, to approve the NAFO legislation. This Article will present a look at the international legal standard for fisheries management contained in Article 63 of the Convention of the Third United Nations Conference on the Law of the Sea (UNCLOS I). Specifically, it will consider whether Article 63(1), which imposes a limited duty on States to seek agreement on transboundary stock management issues, reflects a generally accepted legal standard and, if so, how this standard should affect fisheries management in the Gulf of Maine. The "legislative" history of both sections of Article 63 will be reviewed, although the analysis will focus on Article 63(1). The "straddling stocks" provisions of Article 63(2) and the broader extent of UNCLOS III negotiations are beyond the scope of this article. In order to trace the international legal standard for transboundary stock management, one must first understand the legal process by which such a standard is developed. One scholar has defined modem international law as "that body of [legal] rules and principles which States ... recognize as necessary for the maintenance of peace and good order among themselves, and habitually obey in order to maintain and preserve that good order.” It is a law based upon the consent of States, where a breach of such consent subjects a State to those remedies available in international law. It follows from this that customary international law cannot be grounded upon mere convenience or courtesy, but must be evidenced by a consistent practice by the States in question based upon their recognition of the appropriate legal rules and regulations. Thus, the development of customary international law requires an agreement between two or more States on some norm which is based upon a perceived legal obligation to follow the norm in question. To determine whether an internatinational norm of cooperative management of transboundary or shared fish stocks exists, this Article reviews state practice in the years preceding the First United Nations Conference on the Law of the Sea (UNCLOS I) in 1958, including a general review of fisheries agreements for the North Atlantic and North Pacific, and agreements among European and Asian countries. A brief review of the cooperative management provisions of the 1958 Geneva Convention on Fishing and Conservation of the High Seas will follow. The next section will trace the legislative history of Article 63 at UNCLOS III, followed by a determination of whether Article 63(1) represents a codification of the customary law of the sea for cooperative fisheries management of transboundary stocks. This Article will then look at recent practices of cooperative management to determine if such practices are representative of an international standard. The conclusion will attempt to draw implications for the management of transboundary fish stocks on Georges Bank.

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