1 The FCMA was adopted in 1976 as Pub. L No. 94–265 and amended in 1978 by Pub. L. No. 95–354 and again in 1980 by Pub. L. No. 96–561. It is classified in 16 U.S.C. §§1801–1857 and in certain other sections of Title 16 and in 22 U.S.C. §§1972–1973.

The LOS treaty could of course be “adopted” by the LOS Conference but never come into force for the United States. Mere adoption by the LOS Conference would have no effect on U.S. management under the FCMA. It is generally accepted (and is the administration’s position) that if the United States signs such a treaty, this would oblige the United States, prior to its ratification of the treaty, to act in such a way as not to defeat the object and purposes of the treaty. Letter of Dec. 21, 1979, from Elliot L. Richardson to Senator Warren G. Magnuson. It is not clear that this obligation would signify any need for a particular change in management and this discussion does not seek to identify such changes. As noted in the text, U.S. law seeks to provide for changes in implementing regulations after U.S. ratification of the treaty, but before it comes into force.

2 Food and Agriculture Organization (FAO), Report of The ACMRR Working Party on the Scientific Basis of Determining Management Measures 24 (FAO Fisheries Report No. 236, 1980).

3 As the ACMRR Report notes, there are many possible objectives for management. The conservation and allocation objectives are selected here because they seem particularly significant in an examination of an international agreement. There is a widespread common interest in assuring that living resources are maintained in reasonable abundance and that these resources are shared among those interested. Most of the other objectives noted are important for their impact on these two and for exclusively national policy.

4 Questions about the original objectives of the FCMA are examined in Christy, , The Fishery Conservation and Management Act of 1976: Management Objectives and the Distribution of Benefits and Costs, 52 Wash. L. Rev. 657 (1977)Google Scholar; and Young, The Political Economy of Fish: The Fishery Conservation and Management Act of 1976, at 13–18 (unpub., Dec. 1980).

5 Section 301(a)(1). This is the initial part of national Standard 1; the remaining words are “while achieving, on a continuing basis, the optimum yield from each fishery.”

6 FCMA §301 (a)(2), (3), (4), (5), and (6) are all findings that deal with overfishing. Of the seven separate standards in §301, only two ((1) and (7)) do not feature reference to overfishing. Section 3(2)(B)(ii) defines conservation and management measures to include those designed to assure that “irreversible or long–term adverse effects on fishery resources and the marine environment are avoided.”

7 FAO, ACMRR Report, supra note 2, at 24. Nearly all international fishery agreements prior to the advent of 200–mile fishing zones set out to maintain abundance of a fishery at a level that would provide the MSY. The Oct. 1, 1969 Protocol to ICNAF amended that Convention to authorize regulatory measures to achieve “optimum utilization.” Protocol to the International Convention for the Northwest Atlantic Fisheries Relating to Panel Membership and to Regulatory Measures, 23 UST 1504, TIAS No. 7432.

8 Quoted in Bevan, The Function of Optimum Yield Under the Fishery Conservation and Management Act of 1976 (unpub., dated April 18, 1980).

9 FCMA §3(18).

10 National Standard 3 provides: “To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.” FCMA §301 (a)(3).

11 National Standard 6 provides: “Conservation and management measures shall take into account and allow for variations among, and contingencies in fisheries, fishery resources, and catches.” FCMA §301 (a)(6).

12 FCMA §3(9).

13 Decisions under the FCMA must comply also with the Endangered Species Act, 87 Stat. 884 (1973). See note 15 infra.

14 16 U.S.C. §§1361–1407 (1972).

15 Section 303(a)(1).

16 While the concept of the optimum sustainable population is the key element of the MMPA, there are a number of other potential requirements in the Act which may constrain management decisions under the FCMA. For discussion of these, see Child, & Haley, , The Marine Mammal Protection Act and the Fishery Conservation and Management Act: The Need for Balance, 56 Wash. L. Rev. 365 (1981)Google Scholar; see also Hammond, Fisheries Management under the Fishery Conservation and Management Act, the Marine Mammal Protection Act, and the Endangered Species Act (Final Report to the U.S. Marine Mammal Commission, May 1980) (NTIS No. PB80–180 599).

17 The Act forbids foreign fishing in the exclusive fishing zone (and outside it for anadromous and continental shelf resources) except by agreement and in accord with the Act. Section 201(a). For discussion of the formula for determining allowable foreign fishing, see infra pp. 37–40.

18 Section 3(18). Section 301 requires that management plans and regulations achieve the OY.

19 Bevan, supra note 8, at 1.

20 United Nations, Third Conference on the Law of the Sea, Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/Rev.3, and Add. 1 and Corrs. 1–6 (1980), reproduced in 19 ILM 1131 (1980).

21 The doctrine of abuse of rights in Article 300 of the treaty makes provision for an attack on unreasonable, arbitrary exercises of lawful authority, although this does not appear to effect any change in the dispute settlement provisions. Article 297(3)(b) provides a compulsory conciliation procedure for specific alleged arbitrary actions and perhaps this procedure could be invoked to give effect to Article 300.

22 The Draft Convention does not expressly incorporate the reasonableness standard, but it is presumed to be as applicable to these choices as any other. As noted in note 21 supra, the Article 300 provision on abuse of rights lays to rest contentions about application of a standard of reasonableness.

23 Species listed as endangered under the ESPA include one marine finfish, the totoaba in the Gulf of California. 50 C.F.R. §17.11 (1980). The reasons for this listing are not known, but it seems unlikely to be related to exploitation.

Although referring to a stock in a specific locale, the following report nonetheless requires mention:

A scientist from the U.K. Directorate of Fisheries Laboratory has reported that the once-abundant skate, a member of the ray family, has practically disappeared from the Irish Sea. It is believed that the mortality due to commercial fishing exceeded the maximum level which the species could withstand without collapsing. Research vessels have failed to find a single specimen of skate for the last 15 years.

NOAA, Office of International Fisheries Affairs, The Latest Developments in World Fisheries, May 1981, pt. I, at 5.

24 See p. 36 infra for comment on the omission of social factors in this formulation.

25 Gulland points out that harvesting beyond the MSY level may be a wise choice for a sole owner of a resource, but he distinguishes this sharply from what happens in practice where “the unreasonable logic of open access drives the effort past the MSY level unless all participants can agree on regulations to control effort.” J. Gulland, Goals and Objectives of Fishery Management 5 n.1 (FAO Fisheries Technical Paper No. 166, 1977, Doc. No. FIRS/T166). The result is the same in either instance.

26 Dawson, Glossary of Terms and Concepts Used in Fishery Management, in ACMRR Report, supra note 2, at 117.

27 Where a stock is naturally small or has been severely reduced by natural or fishing mortality, the effects of by-catch might be to take a larger portion of the stock than that taken by the directed fishery.

28 The question concerns the capacity for ecosystem management. In an earlier report the ACMRR Working Party, whose final report is quoted in the text at footnote 2 supra, stated:

The management implication of the term “ecosystem management” presumes a reasonable understanding of the physical and chemical environment and the biological species which describe an ecosystem plus an understanding of the interactions among and between the species complex and their environment. Effective ecosystem management would also require an understanding of the flow of material energy and nutrients within the ecosystem. At present the totality of interactions is not sufficiently understood in any marine ecosystem to allow for a comprehensive ecosystem management.

FAO, Report of the ACMRR Working Party on the Scientific Basis of Determining Management Measures 20 (FAO Fisheries Circular No. 718, 1979). See ACMRR Report, supra note 2; Dawson, supra note 26, at 121, where it is stated that “[ejcosystems are not sufficiently understood at this time to allow the relationships to be readily separated or the necessary analyses to be made”; note 32 infra.

29 50 C.F.R. §216.3 (1979).

30 P. 28 supra.

31 Child & Haley, supra note 16; Hammond, supra note 16; letter of Jan. 18, 1979 from John Twiss, Executive Director of Marine Mammal Commission to J. H. Branson, Executive Director, North Pacific Fishery Management Council.

32 The Fishery Management Plan for the Bering Sea and Aleutian Islands groundfishery, in discussing fishery–marine mammal interactions, states:

44 Fed. Reg. 66, 367, 66, 421 (1979).

33 Dawson, supra note 26, at 117.

34 Petition of the Environmental Defense Fund for the Amendment of the Guidelines for Development of Fishery Management Plans (50 C.F.R. Part 602) 7 (Oct. 10, 1979).

35 Nonetheless, it needs to be noted that the treaty authorizes what the FCMA specifically prohibits. Presumably, implementing legislation for the LOS treaty should take account of this difference.

36 Article 61(2) also states: “As appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall co–operate to this end.” The requirements of such an obligation appear to be no more than prudent policy would dictate with regard to any policy matter. Whether a particular undertaking or initiative is “appropriate” is for the entities involved to decide, i.e., the coastal state and the organization concerned. It seems highly doubtful if this places any significant legal constraint on the coastal state. Judgment would be based on an assessment of factors pertinent to all the interests at stake, including certainly the exclusive interests of the coastal state.

37 I am obliged to Brian Rothschild for suggesting this way of looking at the OY concept although he did not use the terms “content” and “procedure.”

38 Virtually all previous multilateral fishing agreements, including the 1958 Geneva Convention on Conservation of the Living Resources of the High Seas, enshrined maximum sustainable yield as the management goal in their original charters. (“Optimum sustainable yield” is the exact term used in this treaty, but this is widely understood to refer to MSY.) The draft LOS treaty provision is a deliberate departure from this approach and was intended to reflect the multiple objectives now generally understood as appropriate goals.

Expert observers do not read the draft treaty formula as excluding social factors. The Glossary compiled by Dawson states:

The use of MSY as a measure of “maximum potential productivity” expanded until MSY became the objective of fishery management instead of its foundation. The notion prevailed that what was biologically right for the resource was right for the fishery as a whole.

This notion has been eroded considerably. . . . Although the ICNT continues to adhere to MSY as the biological basis for the management of living marine resources, it also provides that MSY be qualified (i.e., in some instances modified) by relevant social, economic and environmental factors.

Dawson, supra note 26, at 125.

39 The FCMA was amended in late 1980 to provide a different listing of factors. The original list was short, mentioning (1) extent of traditional fishing, (2) extent of cooperation in, and substantial contribution to, fishery research and identification of fishery resources, and (3) cooperation in enforcement and conservation and management measures. Section 201(e) now lists the following, which are applicable to the 1981 harvesting season and thereafter:

(A) whether, and to what extent, such nations impose tariff barriers or nontariff barriers on the importation, or otherwise restrict the market access, of United States fish or fishery products;

(B) whether, and to what extent, such nations are cooperating with the United States in the advancement of existing and new opportunities for fisheries trade, particularly through the purchase of fish or fishery products from United States processors or from United States fishermen;

(C) whether, and to what extent, such nations and the fishing fleets of such nations have cooperated with the United States in the enforcement of United States fishing regulations;

(D) whether, and to what extent, such nations require the fish harvested from the fishery conservation zone for their domestic consumption;

(E) whether, and to what extent, such nations otherwise contribute to, or foster the growth of, a sound and economic United States fishing industry, including minimizing gear conflicts with fishing operations of United States fishermen, and transferring harvesting or processing technology which will benefit the United States fishing industry;

(F) whether, and to what extent, the fishing vessels of such nations have traditionally engaged in fishing in such fishery;

(G) whether, and to what extent, such nations are cooperating with the United States in, and making substantial contributions to fishery research and the identification of fishery resources; and

(H) such other matters as the Secretary of State, in cooperation with the Secretary, deems appropriate.

The last factor, a catchall phrase, gives the Secretary of State wide discretion to make allocation decisions serve whatever policy goals are deemed appropriate from time to time. This catchall appeared in the original FCMA; hence the Secretary was not originally precluded from using the newly mentioned criteria as a basis for allocation.

40 The draft LOS treaty does not specifically declare that the order of listing is an order of priority, but this was the contemporary understanding.

I have no documented evidence for such understanding, but I do have clear recollection of discussion of this point with the principal U.S. fisheries negotiator prior to the LOS Conference who was also well informed about the negotiations during the conference. Two points supported by documentation can be made about the listing of factors in Article 62. As noted in the text, they reverse the order of listing in the United States proposal which was expressly labeled to be in order of priorities. See note 41 infra. The second point is that the reference to Articles 69 and 70 appears to assure that the developing states dealt with in those articles receive some priority in access to the zones of their region, and this appears to have been the intent of the drafters. See Report of Ambassador Nandan, 10 Third United Nations Conference on The Law of The Sea, Official Records 88 (1978).

41 The U.S. proposal concerning coastal and anadromous living resources called for “maximum utilization” (not optimum) and declared that the coastal state should provide access to resources not fully utilized by its vessels “on the basis of the following priorities,” mentioning first states that have traditionally fished a resource, other states in the region, and, finally, all states. The change in this order resulting from the negotiations was not inadvertent. See Report of the Committee on the Peaceful Uses of the Sea–bed and the Ocean Floor Beyond the Limits of National Jurisdiction, 27 UN GAOR, Supp. (No. 21) 176, UN Doc. A/8721 (1972).

42 FCMA section 201(e)(1)(E) raises a question in relation to Article 62(4)(a), which lists the following among the regulations the coastal state may establish: “Licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry. . . .” The question is whether the United States as a developed country could consistently with the treaty require these forms of compensation, as the FCMA contemplates. An affirmative answer is indicated. Article 64 is not intended to be an exhaustive statement of authorized terms and conditions, as indicated by the phrase “inter alia” in relation to the listing. The only limitation on such conditions is compliance with the Convention, and determining the form of compensation from foreign fishing is certainly not in violation of any provision of the Convention except as the determination may be arbitrary and unreasonable, a limitation applicable to any exercise of lawful authority pursuant to the treaty.

43 The priority for landlocked and geographically disadvantaged states, which is expressed in Articles 62, 69, and 70, is subject to Article 61, which permits the coastal state to exercise complete discretion in establishing the allowable catch. In addition, Articles 69 and 70 make cross–reference to Article 62, which authorizes a wide range of specific regulations.

44 The “American Fisheries Promotion Act,” Title II of Public Law 96–561 (96th Cong., 2d Sess.), in section 230 amends section 201(d) of the FCMA. It also changes the official title of the latter to the Magnuson Fishery Conservation and Management Act.

45 The decision whether to postpone the allocation is clearly that of the Secretary, in consultation with the Secretary of Commerce, on the basis of the Council recommendation.

46 Annex I of the Draft Convention actually lists ten species of tuna, two species each being incorporated under items 7 and 8. Three tuna species are omitted from Annex I: southern bluefin tuna (Thunnus maccoyii), longtail tuna (Thunnus tonggol), and black skipjack (Euthynnus lineatus). The term “tuna” has meanings that vary among concerned government agencies (in the United States, the Food and Drug Administration and the Bureau of Customs have different interpretations) and by nation. Klawe, What is a Tuna?, 39 Marine Fisheries Rev. 1 (No. 11, 1977), offers guidance through this scientific and linguistic quagmire.

47 22 U.S.C. §§1971–1977.

48 Seven are identified in section V of Agreed Summary Record of Canada/United States Discussions on a Comprehensive Agreement on the Management and Development of Pacific Salmon Stocks of Mutual Concern, Lynnwood, Washington, October 20–25, 1980. This document records specific arrangements for certain transboundary rivers and agreement on general principles applicable to others.

49 Under FCMA section 202(a)(4), the Secretary of State is expressly given authority to negotiate regarding conservation and management of anadromous species and highly migratory species.

50 Article 68 states that part V does not apply to sedentary species, as defined in Article 77, paragraph 4.

51 Article 77 in part VI provides that the coastal state exercises sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources, and the latter are defined in paragraph 4 to include sedentary species. There are no other provisions on such species in this part. Article 76 defines the shelf so that it may extend beyond 200 nautical miles. The FCMA also contemplates the exercise of exclusive fishery management authority over shelf resources beyond 200 nautical miles. FCMA §102.

52 FCMA §202(a)(5).

53 Knight, Effect of a Law of the Sea Treaty on the Fishery Conservation and Management Act of 1976, at 13 (Report to Gulf Regional Fishery Management Council, 1977). Professor Knight adds that “Article 52 [of the Revised Single Negotiating Text] would place the United States under a legal obligation to enter into agreements or arrangements with States through whose exclusive economic zones stocks of fish from the U.S. fishery conservation zone might migrate.” Ibid.

54 There could be instances in which the coastal state may be required to take cooperative action by means solely available to it. Such a situation might arise, for example, because food species for a high seas stock are found wholly within the economic zone during a part of their life history. A variety of interrelationships of stocks might so burden the coastal state. On the other hand, there may be occasions where states fishing beyond 200 nautical miles must accommodate to coastal regulations. The exact relationship of Articles 63(2) and 117 is not wholly clear.

55 The “bypassing” referred to in the text presumably would involve a management plan and regulations contrary to those recommended by a Council for adoption by the Secretary. The Secretary (of Commerce) need not adopt either a recommended plan or the recommended implementing regulations. If, however, the Secretary were to adopt the plan and regulations and an inconsistent international agreement were negotiated by the Secretary of State and put into effect, it might be argued that the agreement superseded the earlier action by the Secretary of Commerce. This sequence of events could raise substantial legal questions including at least two constitutional issues: (1) whether the provision in section 202(a)(5) authorizing negotiations not prohibited by section 202(c) is constitutional, and (2) whether, if the Secretary’s later agreement is an executive agreement, it could override prior federal law. See Note, , Congressional Authorization and Oversight of International Fishery Agreements under the FCMA of 1976, 52 Wash. L. Rev. 495 (1977)Google Scholar.

56 United States v. Capps, 204 F.2d 655 (4th Cir. 1953).

57 43 U.S.C. §1312.

58 Article 3 of the draft LOS treaty provides that states have the right to establish a breadth for the territorial sea up to 12 miles. This formulation contemplates that states may set limits less than 12. Extending the limit to 12 miles is not a cost–free exercise, hence it ought not be assumed that the limit should be extended automatically.

59 There might be disagreement whether state action would “substantially and adversely affect” implementation of a management plan or whether the fishery was predominately within the fishery conservation zone and beyond.

60 Ecosystem management would appear to be an impossibility unless the various management entities closely coordinate their plans and actions. Even if the federal management scheme does not apply to a stock because it is mostly fished within state boundaries, the impact of such fishing might be felt upon other species that are fully subject to an FMP. Yet in the circumstances envisaged, a Regional Council and the Secretary could not regulate the state fishery.

61 Knight, supra note 53, at 11–12.

62 The principal commentary on this set of problems is Jacobson, & Cameron, , Potential Conflicts Between a Future Law of the Sea Treaty and the Fishery Conservation and Management Act of 1976, 52 Wash. L. Rev. 451 (1977)Google Scholar. See also Knight, supra note 53, which discusses the Revised Single Negotiating Text and the FCMA but is still useful and relevant.

63 United States v. Curtiss–Wright Export Corp., 299 U.S. 304 (1936); but cf. Kent v. Dulles, 357 U.S. 116 (1958).