March 15, 2019

The Frontier of Fisheries Regulation

Frederick H. Turner

Over a century ago, explorers traversed the ice and waters of the Antarctic and Arctic, pushing the boundaries of the polar frontier. As these explorers raced to the South and North Poles, they endured challenging conditions and encountered new climates and wildlife. Today, the Antarctic and Arctic represent a different kind of frontier––these regions are the site of experiments in international fisheries regulations. Two recent agreements illustrate this new frontier. First, a group of commercial fishing companies entered into a voluntary agreement in July 2018 to restrain from fishing krill near the Antarctic Peninsula in the Southern Ocean. Second, nine countries and the European Union (EU) agreed in October 2018 to prohibit commercial fishing in the Central Arctic Ocean.

These two agreements were driven in part by the relative lack of scientific data about polar fisheries and their relationship with their marine ecosystems. Contrary to notions of the tragedy of the commons, the relevant companies and nations recognize that in the absence of complete knowledge, a precautionary approach to fisheries offers the best chance of ensuring their long-term sustainability. These agreements are crucial steps forward because they help to conserve Antarctic and Arctic species and can have spillover effect in exclusive economic zones (EEZs), which extend up to 200 nautical miles from a nation’s coastlines. See Crow White & Christopher Costello, Close the High Seas to Fishing? PLOS Biology, Mar. 25, 2014. Moreover, although the high seas beyond EEZs produce only a small percentage of the global food supply, the resources are central to the overall ecosystems and are subject to extensive illegal, unreported, and unregulated fishing.

The two agreements share several similarities. Both agreements represent innovative approaches to fisheries management in remote regions. In fact, the negotiations may have been aided by the lack of conflict that often arises as nations strive to balance competition among their own fishers for limited resources within EEZs; these polar fisheries are primarily in international waters. Further, the agreements recognize that marine resources serve as linchpins to the marine ecosystems.

The agreements also have noteworthy differences. The Antarctic agreement involves a voluntary approach by businesses that builds upon decades of regulation by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), whereas the Arctic agreement establishes a multinational framework for a fishery in an area not yet fished. The Antarctic agreement also focuses only on krill, whereas the Arctic agreement applies to all commercial fishing.

The keystone species krill (Euphausia superba) is at the center of the July 2018 agreement among krill harvesters. Krill is a shrimp-like crustacean that has long served, and continues to serve, as a staple for larger predators. Indeed, one historical account from an early twentieth century newspaper published during Robert Falcon Scott’s Antarctic expeditions poetically described the role of krill in the protoplasmic cycle:

Big [ice] floes have little floes all about ’em, And all the yellow [plants] couldn’t do without ’em. Forty million shrimplets feed upon the latter, And they make the penguin and the seals and whales Much fatter.

Griffith Taylor, South Polar Times (quoted in Apsley Cherry-Garrard, The Worst Journey in the World 69 (1922)). Krill are usually found near the surface during the night and hundreds of meters deep during the day. CCAMLR, “Krill––Biology, Ecology and Fishing,” www.ccamlr.org/en/fisheries/krill-%E2%80%93-biology-ecology-and-fishing. Scientists estimate that currently there are 389 million tons of krill in the Southern Ocean, half of which are consumed by predators, which include not only penguins, seals, and whales, but also finfish, squid, and albatrosses. Id. People also harvest krill. Harvesting typically is done using midwater trawls, and people use krill to feed aquarium fish or farm-raised salmon, or the oil is incorporated into pharmaceuticals. Id.; Craig Welch, Antarctic Penguins Find an Unlikely Ally: Fishermen, Nat’l Geographic, July 10, 2018.

As krill harvesting intensified around Antarctica during the late 1960s and early 1970s, the countries that had signed the 1959 Antarctic Treaty became concerned about the impact to the krill and the species that rely on it. These nations decided to establish a conservation framework for marine species in the high seas of the Antarctic, and in 1980, they adopted a regional fishery management organization (RFMO), the Convention for the Conservation of Antarctic Marine Living Resources (Convention). The Convention created CCAMLR, and laid out three main principles: (1) the prevention of decrease in the size of any harvested population to levels below those that ensure the greatest annual recruitment; (2) maintenance of ecological relationships among living resources and the restoration of depleted resources; and (3) prevention or minimization of changes to the ecosystems that cannot be reversed in two or three decades. Art. II (3).

To meet the overall objective of conservation, which expressly included rational use, Article IX of the Convention authorized CCAMLR to enact several conservation measures such as quotas, regions for harvesting, and open and closed seasons. Art. IX (2). CCAMLR has established quotas for krill as well as Patagonian toothfish, Antarctic toothfish, and mackerel icefish. For krill, CCAMLR determined that an annual catch of 5.6 million tons would be sustainable but set the current catch limit at 620,000 tons per year (1 percent of the unexploited biomass of krill). CCAMLR Conservation Measures 51-01, 51-07. And between 2010 and 2014, the annual catch of krill ranged from 161,805 to 294,145 tons, with the majority harvested by vessels from Norway, South Korea, and China. CCAMLR, “Krill––Biology, Ecology and Fishing.”

In July 2018, krill fishing companies voluntarily went above and beyond the existing protections for krill. Because CCAMLR had not yet responded to a push to ban krill harvesting near the Antarctic Peninsula, environmental organizations encouraged the krill fishing companies themselves to restrain from harvesting in penguin breeding areas. Welch, Antarctic Penguins. On July 9, 2018, the Association of Responsible Krill harvesting companies, which represents 85 percent of the krill industry, entered into a voluntary agreement to do just that. Id. Specifically, Aker BioMarine, CNFC, Insung, Pescachile, and Rimfrost committed not to fish near penguin breeding grounds in 2019, and starting in 2020, to stay at least 30 kilometers from these areas throughout the year. Id.; Greenpeace International, Krill Fishing Companies Back Call to Protect Antarctic Ocean, July 9, 2018.

These krill fishing companies also agreed to support new marine protected areas (MPAs) in the Antarctic. Three new MPAs were proposed at the annual CCAMLR meeting in October 2018 in Hobart, Australia, but because unanimous agreement could not be reached, they will be reconsidered in 2019. Jamie Morton, Anger Over Failed Bid to Create World’s Biggest Marine Reserve, New Zealand Herald, Nov. 4, 2018. Any future MPAs would follow the creation of the world’s largest marine reserve––the Ross Sea MPA established in 2016. CCAMLR Conservation Measure 91-05. The Ross Sea MPA protects 598,000 square miles of water that is home to krill and minke whales and prohibits fishing in 432,000 square miles at a time when fishing vessels are pushing into the remotest parts of the world’s oceans. Brian Clark Howard, World’s Largest Marine Reserve Created Off Antarctica, Nat’l Geographic, Oct. 27, 2016.

Moving to the northern hemisphere, there is a “doughnut hole” in the Central Arctic Ocean that is the focal point of the October 2018 agreement on commercial fishing. This hole is the area that lies beyond the national jurisdiction of the five countries with Arctic coastline: the United States, Russia, Canada, Denmark (Greenland), and Norway (Arctic Five). Fishing vessels have not yet plied these waters due to their remoteness and the fact that, until recently, they were frozen. But with the decline of sea ice, the possibility for commercial fishing is on the horizon; indeed, during summer, roughly 40 percent of the ice in the Central Arctic Ocean melts.

One likely target of fishing vessels will be the polar cod (Boreogadus saida), a keystone species in the waters above the Arctic Circle. As nature writer Barry Lopez has written, “[t]he life of the polar seas is structured around a spring bloom of [sea ice] phytoplankton” and “various crustaceans, and a small number of fish species, principally polar and arctic cod, extend this food web.” Arctic Dreams: Imagination and Desire in a Northern Landscape 220 (1986). In turn, polar cod serve as a food source for beluga whales, narwhals, ringed seals, and Arctic seabirds. A recent study indicates that there may be as many as nine billion juvenile polar cod living under the ice. Alfred Wegener Institute, Billions of Juvenile Fish under the Arctic Sea Ice, Oct. 12, 2015.

The potential for a new fishery and the global reach of modern fishing fleets led many people to support a precautionary approach to the Central Arctic Ocean. E.g., An Open Letter from International Scientists (Apr. 10, 2012), available at www.pewtrusts.org/-/media/legacy/oceans_north_legacy/page_attachments/international-arctic-scientist-letter-with-sigs-522012.pdf (last visited Dec. 14, 2018). Building from this support, the Arctic Five adopted a Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean on July 16, 2015. This declaration contained four interim measures for the “doughnut hole,” including a commitment to authorize their fishing vessels to conduct commercial fishing in these high seas only pursuant to one or more RFMOs or other arrangement. Yet the declaration also “acknowledge[d] the interest of other States in preventing unregulated high seas fisheries” and indicated that the Arctic Five “look[ed] forward to working with them in a broader process to develop measures.”

The Arctic Five engaged with other countries for nearly two years, and in November 2017, the Arctic Five, as well as China, Iceland, Japan, the Republic of Korea, and the European Union (EU) concluded negotiations on a draft Agreement to Prevent Unregulated High Seas Fishing in the Central Arctic Ocean. U.S. Department of State, Meeting on High Seas Fisheries in the Central Arctic Ocean, 28–30 November 2017: Chairman’s Statement. On October 3, 2018, these nine countries and the EU met in Greenland and signed the agreement. Fiona Harvey, Commercial Fishing Banned across Much of the Arctic, The Guardian, Oct. 3, 2018. Under the terms of this legally binding agreement, an area measuring 1.1 million square miles will be off limits to commercial fishing for 16 years or until a framework for sustainable fishing is established. Ocean Conservancy, Ocean Conservancy Applauds Signing of Landmark Accord to Protect Central Arctic Ocean, Oct. 2, 2018. The agreement is unusual because it marks a point of common ground between the United States and Russia; some diplomats have dubbed this phenomenon “Arctic exceptionalism.” Andrew E. Kramer, Russia, U.S. and Other Nations Restrict Fishing in Thawing Arctic, N.Y. Times, Nov. 30, 2017.

The agreements reached on krill and the Central Arctic Ocean also are exceptional because they are forward-looking approaches to international fisheries management that will likely serve as stepping stones toward future protection for specific species or seas. In fact, discussions about a ban of fishing throughout the high seas are “gaining rapid momentum.” Alastair Bland, Could A Ban on Fishing in International Waters Become a Reality, NPR, Sept. 14, 2018. More than a century after the heyday of polar exploration, the Antarctic and Arctic regions are once again on the frontier.

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Frederick H. Turner

Mr. Turner is an attorney in the Environment and Natural Resources Division of the U.S. Department of Justice and a member of the editorial board of Natural Resources & Environment. He may be reached at fredturner@gmail.com. The views expressed here are his own and do not necessarily represent the views of the U.S. Department of Justice or the United States.