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Document Type

Comment

Abstract

The need for management of our planet's oceanic environment on an ecosystem level has been an important and much discussed topic in marine science and policy circles. At least one scholar has argued that customary international law requires states to manage the earth's oceans on an ecosystem level rather than by using an "ad hoc" or species-byspecies system. Ecosystem management provides for a more comprehensive approach toward the utilization and protection of resources in a given geographic area than does species specific management. Not only does ecosystem management consider complex interrelationships among species, but it also takes into account considerations such as habitat, human needs, and air and water quality. Such an analysis does not merely boil down to, for example, jobs versus spotted owls, or the commercial Alaskan pollock harvest versus the Steller sea lion, but requires managers to take a broader view of the consequences of their actions for the benefit of all. Marine ecosystems like the Bering ecosystem are not made up of thousands of separate species of plants and animals each acting autonomously. Rather, they are made up of species which interact with each other and with their environment and are affected directly and indirectly by human activities such as commercial fishing and oil drilling. This web of interrelationships between human activities, natural biological occurrences, marine habitats and the environment is one example of what is meant by the term "ecosystem. "Ecosystem management" requires that a comprehensive planning method be undertaken to regulate the "whole ecologic mosaic in a region." As Professor Belsky notes: "In other words, the premise of the [ecosystem] model is simply a plea by scientists for holistic or comprehensive research and management [of a given geographic area]." The ecosystem model theorizes that if an integral species like the Alaska pollock in the Bering Sea ecosystem is depleted by overfishing, not only may this significantly affect the human economic interests in the region, but it will also affect the habitat and species that are dependent on those species. Thus, the current management system, which sets annual quotas on individual fish species like pollock, may not be the most effective way to preserve other important economic and ecological interests in the ecosystem. A more effective means of ensuring the health of the Bering Sea and other ecosystems may be to consider a commercially significant species like pollock as just one, albeit critical, component of a functioning system, characterized by complex interrelationships, and which must be managed as a whole. Actions taken by the United States with respect to the Bering Sea ecosystem are important because of their global significance both economically and ecologically. The behavior of the United States is important particularly because much of the Bering Sea ecosystem lies within its Exclusive Economic Zone (EEZ). In addition, the United States is seen as the final remaining superpower, and its actions are often looked to by other nations as an indication of the current standards of conduct under international law. The purpose of this Comment is to explore whether actual U.S. government practice supports the emergence of a customary international law norm requiring nations to engage in marine ecosystem management. Part II describes the theory that there exists such an emerging international law norm. As will be explained, this norm is illustrated by recent developments in international law, including provisions of the United Nations Draft Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks and the United Nations Convention on the Law of the Sea (LOS). The domestic legal tools that the United States can employ to manage the marine environment on an ecosystem level are the National Environmental Policy Act (NEPA), the Magnuson Fishery Conservation and Management Act (Magnuson Act),' the Marine Mammal Protection Act (MMPA), and the Endangered Species Act (ESA). These are explored in Part III. In order to ascertain whether the United States is using these domestic tools in accordance with the emerging international duty to manage on an ecosystem level, Part IV analyzes the actions of the U.S. government with respect to a specific marine ecosystem, the Bering Sea, and a specific species, the Walleye pollock (pollock). The Bering Sea is "one of the most biologically productive waters of the world." Unlike many of the United States' erstwhile fishery-rich ecosystems, it supports a fishery which as recently as 1990 was described as “healthy.” The pollock is a key species both commercially and ecologically in the Bering Sea. As such, the pollock illustrates the necessity of management on an ecosystem level and presents an opportunity for the United States to engage in such management. This Comment will demonstrate that the United States is moving away from a species-by-species approach and toward a more comprehensive, ecosystem-oriented approach of management in the Bering Sea. However, this movement is in its embryonic stages and it remains to be seen whether the United States will use its domestic tools and engage in international efforts to successfully support an emerging international norm requiring ecosystem management.

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