Full Title Name:  Rock The Boat: The Plight of the Southern Bluefin Tuna

I. Introduction

For thousands of years, fishing has played a key role in developing state economies worldwide.   However, over-fishing has led to devastation of certain species, specifically the Southern Bluefin Tuna.   Today, the Southern Bluefin Tuna is listed as a critically endangered species [1] that, despite threats of its total collapse, remains a prized commodity on the worldwide market.   Despite international law, treaties, and conservation efforts addressing threats to its survival, the Bluefin Tuna still faces extinction.

This paper will examine what makes a Bluefin Tuna unique both scientifically and as an economic commodity.   Further, the paper will analyze the current international laws and actions taken to address Southern Bluefin Tuna’s seemingly imminent extinction.   And, although these efforts encouraged conservation, greater government enforcement and leadership is needed to ensure the survival of Southern Bluefin Tuna.

A. What is a Southern Bluefin Tuna?

Southern Bluefin Tuna ( Thunnus maccoyii) are mainly caught for their fatty meat, color, size and unique texture. [2] A Southern Bluefin tuna can weigh up to 200 kilograms and may live for up to 40 years.   It can measure up to 2 meters, can swim between 2-3 kilometers/hour and can dive to up to 500 meters;however, the average size of a Southern Bluefin Tuna caught today weighs only approximately 7 kilograms, and has an average lifespan of 12 years. [3]

The Southern Bluefin Tuna are somewhat slow-growing, with a three year old fish only growing 1.5cm per month. Southern Bluefin Tuna are pelagic, living in the open water, and thrive in waters between 30 and 50 degrees Celsius. During the winter months, the Southern Bluefin Tuna prefer more temperate and deeper water.   The Southern Bluefin Tuna can survive in cold water temperatures because they have a unique circulatory system, which is able to keep their body temperature warmer than the surrounding water.  

Southern Bluefin Tuna are further unique, as they are a highly migrative species.   The fish breeds in the southern Indian Ocean, near Java, between September and April.   Once born, the young migrate down the Western coast of Australia and remain near the coast until approximately 5 years of age, when they travel and remain in the open ocean.

B. Fishing for Southern Bluefin Tuna

Southern Bluefin Tuna may be found globally.   The highest catching waters include the Indian Ocean, at 65%, the Southern Pacific Ocean, at 25%, and the Atlantic Ocean, at 10%.  The main fishing method used by Japan, New Zealand, China, Province of Taiwan, Korea, Indonesia and the United States is longline fishing off of vessels. [4]   Longline fishing uses a long fishing line with many hooks.  Australian fishermen primarily catch Southern Bluefin Tuna using the purse seine technique.   This technique differs as, instead of using a fishing line and immediately pulling the fish onto the boat, the fish are towed (alive) using nets, and then transferred to grow cages.   The Tuna remain in grow cages to be fed and fattened for approximately six months before being exported, primarily to Japan.  The purse seine fishing season runs from January to March, and the longline season begins in December and runs throughout the winter. [5]     

A minority of fisherman use pole and line and trolling techniques.  For example, between 1982 to 1992 Chinaand the Province of Taiwan utilized drift gillnets, a type of trolling technique.   Although the primary target was Albacore Tuna, often Southern Bluefin Tuna was caught in these large trolling nets.   In 1992 this technique stopped, however, when the United Nations banned large pelagic nets.

C. A Brief History of Fishing for Southern Bluefin Tuna

Fishing for Southern Bluefin Tuna began as early as the 1930s, when the fish was caught for canning.   Fishing for the species, however, began to take off in the 1950s with the discovery of the pole-and-line fishing technique.  In the 1950s, the catch was still primarily used for canning, with a total catch in the decade between 12,000 to 15,000 tons.   During the 1950s, Southern Bluefin Tuna demand rose significantly, as the Japanese began fishing for the sashimi market. 4   Sashimi became the “ultimate delicatessen” in Japan and worldwide, as its raw fillet had a color, a high fat content, and a texture unique from other fishes or tuna species.  With a sashimi market and advancing technology (by the 1950s fishermen installed super-cold freezers on vessels), the catch peaked in the 1960s at 80,000 tons.   Fishermen looked for the valuable Southern Bluefin Tuna catches from the coast of New Zealand to the Southern Indian Ocean to South Atlantic. Even with the introduction of the purse seine method in the 1970s, the catch subsequently began to decline to a low 40,000 tones by the 1980s. [6]

Today, Southern Bluefin Tuna’s sashimi meat makes this species the most demanded, rare, and expensive tuna species.  Presently, about 90% of the Southern Bluefin Tuna catch is consumed by Japan.   “The industry will continue to grow, but due to slow growth…and high costs involved, it can not fulfil the demand for Bluefin in any way.”  An adult Southern Bluefin Tuna is worth up to approximately $50,000USD. The open ocean harvest in Australia alone is a $150 million AUD industry.

II. Early Conservation Action

With the sharp decline of the Southern Bluefin Tuna by the 1980s and the observations that formerly lucrative catching areas were beginning to disappear (especially on Australia’s coast), countries that depended on the economic viability of the species, namely Australia, New Zealand, and Japan, began conservation efforts by introducing a quota system.  Annual meetings of research scientists, from all three countries, studying the Southern Bluefin Tuna began in 1982.   By 1984 these scientists agreed that between 1967 and 1975, the spawning tuna were reduced to 210,000 tons, 25% of its original species.   The catch of young tuna reduced the number of tuna mature enough to spawn, which in turn reflected the decrease in mid-size and mid-aged fish in both Japan and New Zealand’s catches.

In response to this scientific data, the three countries trilaterally agreed in 1985 to set Southern Bluefin Tuna’s first quota at 38,650 tons.   By 1989 the quota was reduced to 11,750 tons with Japan receiving 6065 tons, Australia receiving 5265 tons and New Zealand receiving 420 tons.   Each country was responsible for recording and enforcing its quotas. 6   Despite this trilateral agreement, the lack of management and enforcement, as well as the lack of constraints or enforcement mechanisms in international waters, the Southern Bluefin Tuna stock continued its decline. [7]

A. United Nations Convention on the Law of the Sea

In 1982, the United Nations completed the United Nations Convention on the Law of the Sea (UNCOLS). The UNCOLS established a global framework that aimed to address ocean conservation and protection.   It contains 320 articles and nine annexes that address and regulate ocean space and its resources. 1    As of October 23, 2006, 152 countries have ratified the UNCLOS. [8]   As of October 2006, the United States has not ratified the UNCLOS. 8   The United States is the only industrialized country in the world not to sign the UNCLOS, and despite a recent push from Senators, Naval Generals, and even celebrities, the United States has still not ratified the UNCLOS.

The UNCOLS covers a broad spectrum of marine issues: from dividing the sea into territories; to access to the sea regulations; to navigation rights; to providing international research; and to protection and preservation of the environment.  The UNCLOS’ major accomplishments include “its treatment of jurisdictional authority, the establishment of obligations to protect and preserve the marine environment, and comprehensive coverage of specific environmental threats posed by pollution and overfishing.”  It is considered internationally as the “‘constitution for ocean governance.’” [9]

The UNCLOS divides the ocean into three categories—territorial sea, an exclusive economic zone (EEZ), and high sea—which have greatly impacted the highly migratory Southern Bluefin Tuna. [10]   The division of the Ocean into EEZs expanded the territorial sea limit to 200 nautical miles (230 miles) from the shoreline. About 40% of the world’s ocean and 90% of its marine resources are located in EEZs.  In an EEZ, a state enjoys exclusive rights to use, to protect and to manage the sea.   Although states may use the EEZ to its economic advantage, the UNCLOS also places greater responsibility on a state’s duty to protect the marine environment.   The UNCLOS specifically states that participating states “shall” carry the burden of protecting and preserving the marine environment in their EEZ. [11]   The incorporation of “shall” instead of another word like “may”, leaves the states no option but to comply with this provision if they choose to ratify the treaty.  Thus, the UNCLOS places a heavy responsibility on participating states to protect and to preserve the marine environment.  

Despite the UNCLOS’ mandate for increased environmental responsibility within EEZs, the question remains whether state actions for preservation and conservation in these zones is effective.   For example, rather than have scientific recommendations direct catch quotas in the EEZs, often state policy decisions are guided more by their economic needs.   “Many governments are unwilling to take measures that would drive fisherman into bankruptcy and unemployment lines.”  Thus, despite the UNCLOS provision, in reality many nations are unwilling to compromise their state’s economic well-being for more protection of the marine environment.

In addition, UNCLOS categorizes a large portion of the ocean as high sea, an area in which all states have the right to use the sea.   High sea remains a global common area, in which a “tragedy of the commons” takes a toll on Southern Bluefin Tuna.  A “tragedy of the commons” refers, in this respect, to a fishery that exists in open-access waters and is shared internationally.   In these areas, there is an unrestricted and unlimited right to use marine resources and fish.   The law of the sea is “built upon a number of basic principles.   The most important of these is the ‘freedom of the seas’—the ocean’s status as a global common upon which nations’ freedom to travel and extract sources is unimpeded.” [12]   This open-access has led to a historical pattern of discovery, expansion, overexploitation, and collapse. [13]    This pattern is clearly demonstrated by the historical plight of the Southern Bluefin Tuna, even in EEZs.   However, in an attempt to curb the exploitation of marine resources and avoid a classic “tragedy of the commons” problem, UNCLOS attempts to limit state sovereignty in the high sea zones.   UNCLOS emphasizes that countries are “subject to the state’s treaty obligations and the rights, duties, and interests of coastal states…”  Thus, through UNCLOS’ provisions, the obligations of international cooperation supercede state sovereignty to deplete resources in the high seas.  

Although the UNCLOS encouraged international cooperation in the high seas, it did not establish any explicit international instructions.   Therefore, despite the UNCLOS’ declaration that international obligations should ideally trump state sovereignty, fishing in the high seas zones is largely unregulated.   “Few states have implemented legislation governing the rights and obligations of their vessels on the high seas.” [14] This lack of effective regulation in the high seas inspired nongovernmental, regional organizations, like Northwest Atlantic Fisheries Organization, South Pacific Forum Fisheries, the International Commission for Conservation of Atlantic Tunas, and later, the Commission for the Conservation of Southern Bluefin Tuna to form.   Such regional organizations sought to regulate high sea fisheries.   However, for many organizations, the lack of central leadership and guidelines from the UNCLOS has failed to affect state action in complying with the regional organization rules and penalities.

B. Commission for the Conservation of Southern Bluefin Tuna

In response to both UNCLOS’s establishment of the high seas and EEZs as well as the problems of enforcing and setting quotas between Japan, Australia, and New Zealand, these three countries established the Commission for the Conservation of Southern Bluefin Tuna (CCSBT).   In May 1993, Japan, Australia and New Zealand voluntarily signed an agreement establishing the CCSBT and agreed to allow the CCSBT to set total allowable catch quotas.   In October 2001, Republic of Korea, and in August 2002 Taiwan, joined the commission, and currently South Africa is discussing membership.

The CCSBT’s goal is to “ensure, through appropriate management, the conservation and optimum utilization of the global SBT fishery.    The Commission also provides an internationally recognized forum for other countries/entities to actively participate in SBT issues.”  The CCSBT not only sets total allowable catch quotas for Southern Bluefin Tuna, but also conducts an extensive scientific research program.   The CCSBT also provides an international and open forum for discussion on any Southern Bluefin Tuna issues, works with other worldwide, regional tuna organizations, as well as encourages conservation from member and non-member countries. [15]

The CCSBT’s scientific research program consists of five parts:   focusing on the characterization of the Southern Bluefin Tuna catch, the improvement of data interpretation and analysis, development of a scientific observer program, a tagging program, and ageing studies.  The CCSBT scientific studies have become particularly important; for example, the tagging program reveals valuable information about their slow growth rates.   The CSIRO Marine Institute has further assisted with the tagging program by using data-storage tags to track the location of the fish, its body temperature, the water temperature and time of day or night.   CSIRO is also working on new technology in “pop-up” tags, which when they surface, transmit the data collected on each fish directly to satellite. [16]  

C. The United Nations Conference and the Fish Stock Treaty

Due to the difficulties faced by regional organization enforcement of high sea regulations, the United Nations held a conference to address the issues relating to the management and preservation of highly migratory fish.   The Chairperson of the Conference on Straddling Stocks and Highly Migratory Fish Stocks (the Conference), Satya Nandan, stated that preservation needed “global solutions” as it “concerned the international community as a whole.” [17]   The Conference sought to address the problems and shortfalls of UNCLOS regarding fishing for straddling stocks and highly migratory marine species.  

On August 4, 1994, the countries of UNCLOS approved the Articles of the Convention by consensus and established, for the first time, limits to access and fishing on the high seas. [18]   The Conference provided that all states with an interest in fishing migratory fishes or fishing in a high seas region must comply with standards set by regional organizations.   Such organizations identify the fish stocks, regulate the fish stocks, and collaborate with other organizations to set parameters high sea zones.   States are specifically required to fulfill this obligation by conducting scientific research of migratory fish stocks, by monitoring the fish stocks in the regulated areas, and by setting catch allocations.   Any non-governmental organizations that wish to participate with the regional organizations are permitted to observe and submit any scientific information to organizational meetings.

The Conference further discussed enforcement of the treaty as well as the policing of the new, regional organizations.   The Conference adopted strict measures that any state found violating any of the provisions would be sanctioned.   Such violations could eventually lead to a ban on the state’s fishing rights on the high seas.   Flag state have the responsibility to issue licenses or permits in order to ensure their boats’ cooperation with the guidelines set by the regional organizations.   The flag states must establish a national registry of the boats, and release the registry on the request of another member state.

Furthermore, any state has the right to board and inspect another state’s boat at any time.   Such inspectors are allowed to search the boat, view its licenses and records, and verify compliance with the Articles.   If any violations by an inspector are found, the boat’s flag state must be immediately notified.   The flag state must order the boat to undergo a formal investigation and suspend fishing.

D. The Effect of the Fish Stock Treaty on Southern Bluefin Tuna

The Conference had the enormous task of solving the problem of the world’s over-fishing in the high seas area.   “Overall, the Fish Stock Treaty provides for better enforcement…It gives member states more authority to monitor and conduct investigations.”  Despite the Conference and the Treaty’s valiant effort to solve this problem, the continual depletion of migratory fish stocks is demonstrated by the Southern Bluefin Tuna.   Even after the Treaty was ratified in 1994, the depletion of the Southern Bluefin Tuna in high seas zones, and overall, has continued to decline.   Current scientific data shows that the “spawning biomass is at a low fraction of its original biomass and well below the 1980 level. The stock is estimated to be well below the level that could produce maximum sustainable yield. Recruitments in the last decade are estimated to be well below the levels in the period 1950-1980.”  Such data demonstrate that the new, stricter enforcements the Conference ratified in the Fish Stock Treaty are not achieving protection or preservation goals.   Thus, despite international marine regulations like UNCLOS and the Treaty on Fish Stocks, the Southern Bluefin Tuna stock continues to decline.  

As the Southern Bluefin Tuna stock continues to decline, a key question arises as to why the Fish Stock Treaty has failed to help the plight of the Southern Bluefin Tuna.   Although the Treaty addresses over fishing and poses a possible solution, the Treaty’s enforcement mechanism presupposes an extraordinary high level of international cooperation that, today, does not exist.   For the Treaty to succeed, “flag states, port states, and coastal states all need to be involved in the enforcement throughout the prosecution and sanction process.”  States not only have the duty to cooperate in the enforcement of the treaty, but the treaty, through Article 7, also imposes the duty to sovereign states to work together in good faith to set reasonable conservation measures.  This level of international cooperation is simply an unrealistic expectation.   For example, as the Southern Bluefin Tuna (and fishing industry as whole) provide a significant source of income for many states, affecting their citizens at a local level, states are not inclined to cooperate to enforce preservation measures.  

Furthermore, such cooperation between states is not only needed between states on a national level, but also between states and regional organizations in order for the Treaty’s enforcement mechanisms to succeed. [19]   Although the Treaty delegates regional organizations the primary power to impose conservation measures and to set quotas, states may choose their level of participation in the regional organization.  For example, Article 8 provides that as an alternative to becoming a member of the local regional organization, nations may choose to simply apply the regional organization’s measures.   This article dilutes the potential power of regional organization over a state by giving the state an option to choose which measures to utilize.  By allowing states to choose their level of participation in regional organizations, Article 8 provides a loop-hole for states to continue to leaving fishing unregulated.  

In addition to requiring extraordinary amounts of cooperation between both states and regional organizations, the Treaty requires participating states to expend significant resources in establishing management and enforcement mechanisms. “Countries may simply not have the sufficient means to ensure that vessels flying their flags operate according to the rules.” [20]   Establishing management systems to register and flag boats as well as creating enforcement departments to inspect boats all requires a state to expend resources.   Some states simply do not have enough resources to expend to fully implement the Treaty’s measures or to make the Treaty’s requirements effective.  Thus, due to the high level of international cooperation the Treaty requires, as well as the resources needed to effectively implement the Treaty, illegal fishermen are able to continue to deplete migratory fish stocks such as the Southern Bluefin Tuna specifically in high sea areas.  

E. International Tribunal for the Law of the Sea

Another major accomplishment of UNCLOS was its establishment of the International Tribunal for the Law of the Sea (ITLOS) as an enforcement mechanism.   The ITLOS is a formal international tribunal that settles disputes and punishes violators relating to any article in the UNCLOS.  ITLOS, located in Hamburg, Germany, was officially inaugurated in October 1996, 14 years after the initial ratification of UNCLOS.   ITLOS contains 21 judges who are elected by the states who have ratified UNCLOS.   “It was designed to adjudicate international disputes arises between States or other international entities, as opposed to private maritime matters.”  Since 1996, the ITLOS has heard twelve cases, including the Southern Bluefin Tuna Cases discussed in detail below.   Its decisions are binding on the states, and the ITLOS considers itself the “judicial guardian of the marine environment.”

III. Case Study: The Southern Bluefin Tuna Cases

As previously described, the Southern Bluefin Tuna has a high scientific and economic value for countries worldwide.   In response to problems of over fishing in the UNCLOS zones and non-compliance with the Fish Stock Treaty, Japan, Australia and New Zealand agreed that the CCSBT set the total allowable catch quotas for the Southern Bluefin Tuna.   However, in 1998, Japan unilaterally increased its catch of the Southern Bluefin Tuna by 2,000 tons.  Japan claimed that the increased quota was necessary to perform research on the status of the Southern Bluefin Tuna stock.  Japan claimed that the catch increase stemmed from its “commitment to maintain the remaining long-range fishing sector in good health.” [21] Australia and New Zealand officials claimed that Japan breached its agreement for purely economic purposes in order to exploit the Southern Bluefin Tuna market for their sole benefit.  

As Japan, Australia and New Zealand could not come to an agreement, Australia and New Zealand submitted the dispute to arbitration, ITLOS, pursuant to the UNCLOS.    Australia and New Zealand argued that not only would Japan’s research yield minimal results, but also that the research would cause irreversible damage to the remaining Southern Bluefin Tuna stock.  Furthermore, Australia and New Zealand argued that the unilateral action taken by Japan violated the UNCLOS, specifically Articles 64, 116-119 and 300. [22]    These Articles address the preservation of highly migratory marine species, as well as the “conservation and management of the living resources of the high seas.”  For example, Article 119 states:

States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas.   States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned.   They shall, as appropriate, cooperate to establish sub-regional or regional fisheries organizations to this end.

In effect, Australia and New Zealand claimed that Japan breached its UNCLOS agreement by failing to restore the Southern Bluefin Tuna to its sustainable catch, and its commitment to work together in good faith.

As Australian and New Zealand scientists testified that the Southern Bluefin Tuna was on the edge of economic extinction and, therefore, the marine resource must be conserved, these countries also had clear economic motivations for opposing Japan’s increase in catch.   Australia and New Zealand sought to protect their economic interests, namely in exporting the fish.   The Australian tuna farming market had exploded into a $150 million per year (AUD) export industry (mainly exporting the Tuna to Japan), that brought economic stabilization and improvement to many local economies.   Australia and New Zealand compared the status of the Southern Bluefin Tuna to the collapse of the Atlantic Cod in 1991, a formerly valuable local fishing industry.   The collapse of the Cod cost the Canadian government over $3 billion dollars.  Provided that the Southern Bluefin Tuna was kept at sustainable levels, Australia and New Zealand sought to profit from their own preservation policies.  Thus, due to preservation and economic concerns, Australia and New Zealand urged the ITLOS to issue an order immediately stopping any scientific research by Japan, as well as an order for all parties to fish in accordance with quotas set by applying the precautionary principle.

In response to Australia and New Zealand’s arguments and evidence, Japan compiled an optimistic scientific view of the state of the Southern Bluefin Tuna.   Japanese scientists claimed that lower catch rates would yield the species recovery at a high rate, while high catch rates would yield the species recovery at a slow rate.   Their projected catch rate would not significantly slow the Southern Bluefin Tuna’s high rate recovery.   Japan’s scientific assessments were based almost entirely from Japanese fishing records and not independent sources.

On August 27, 1999, the ITLOS issued an interim order that concluded that Japan had, in fact, breached their UNCLOS agreement.   The order states that Japan “has breached its obligations under Articles 64, 116-119 of UNCLOS [by] failing to adopt necessary conservation measures…carrying out unilateral experimental fishing…taking unilateral action contrary to the rights and interests…failing in good faith to co-operate…otherwise failing in its obligation under UNCLOS…” [23]   Thus, the Tribunal agreed with Australia that the scientific uncertainties proven by the available data demonstrated that action must be taken to conserve the Tuna stock.  

The order also stated five provisional solutions and sanctions: that the parties prevent any further aggravation or extension of the dispute, the parties keep catch levels to those last agreed and as set by the CCSBT for 1999, the parties cease any experimental fishing programs, the parties resume negotiations, and finally that the parties form agreements with any other states fishing for Southern Bluefin Tuna. [24] nbsp; The interim order, and all of its provisional solutions and sanctions, became effective immediately in accordance with Article 290 of UNCLOS.

A key question in evaluating the ITLOS’ interim order is why the ITLOS did not order all three countries to cease Southern Bluefin Tuna fishing for a specific period of time? Besides the immediate, negative economic consequences of a moratorium on all Southern Bluefin Tuna fishing, in this case the ITLOS would not have the jurisdiction to order a moratorium on fishing.   The UNCLOS Article 230(3), which specifically addresses ITLOS’ jurisdiction, limits the Tribunal’s powers to those measures requested by the parties.  As no party requested a moratorium on Southern Bluefin Tuna fishing, the ITLOS would not have the power to create their own solution.   The ITLOS must choose from the solutions argued by the parties.

However, as this order became effective only four days before Japan’s experimental fishing program was scheduled to end, the ITLOS also issued a final resolution that required Japan, Australia and New Zealand to submit to further arbitration.  The final resolution required that the countries submit their arguments to a five member tribunal specifically appointed to hear the Southern Bluefin Tuna dispute.   Australia, New Zealand and Japan could nominate members to the Tribunal.  

Despite Japan’s objections that the Tribunal did not have jurisdiction under UNCLOS, the Tribunal issued its decision on August 4, 2000, concluding the immediate dispute.   The Tribunal affirmed its jurisdiction over the proceedings, ordered a revocation of the ban on Japan’s experimental fishing program and ordered the parties to cease from action that would aggravate relations between the states.   Japan also agreed to submit to further mediation under the rules of the CCSBT.

A. The ITLOS and the Precautionary Principle

In issuing the interim order of 1999, the ITLOS applied the precautionary principle - customary international law in the marine environment context. 19   The precautionary principle states that in the event of scientific uncertainty one should conserve a resource to prevent any further environmental damage. 1 The precautionary principle is clearly stated in the Rio Declaration 1992, Principle 15, which provides that:

Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degredation.

Thus, in applying the precautionary principle, a state regulates any activities that may, even in the absence of concrete scientific evidence, hurt or would likely hurt the environment.  An argument for the implementation of the precautionary principle places the burden of proof on the party that claims a continued activity does not cause environmental harm.  

The precautionary principle is predominantly applied to provide guidance in making management and environmental decisions.   It can be found underlying international environmental policy decisions and treaties, including the Fish Stock Treaty.   “The precautionary principle has become of tremendous importance because, in many cases, the establishment of proof of cause and effect by scientists is a difficult task, sometimes almost a fruitless search for an indefinite series of events.”  Because scientists may not be able to predict future environmental causes and effects with clear certainty, the precautionary principle allows for the argument of conservation in absence of concrete scientific evidence.  

The precautionary principle has arguably become a customary norm of international law in the marine environment.  A customary norm reflects the general acceptance of the practice in the international arena.  Such an acceptance of a norm is practiced under the belief that it is actually required by law and generally seen as a rule governing conduct.  Because the precautionary principle has been applied in numerous treaties regulating the marine environment, such as the Law of the Sea, the Fish Stock Treaty, and national fisheries legislation, there is a strong consensus that the precautionary principle in the marine context has become customary law.

The ITLOS interim order applied the precautionary principle in the Southern Bluefin Tuna cases.  Although the order does not explicitly refer to the precautionary principle, the principle is reflected in the order’s language.   Paragraph 80 states:

Considering that, although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock.

Paragraph 80, further supported by paragraphs 77 and 79, refers to the scientific uncertainty regarding the stock of Southern Bluefin Tuna, and due to this uncertainty, conservation measures must be taken to prevent serious harm to the stock.   In making its decision, the Tribunal noted that all parties agreed that the stock was at its lowest levels historically and that, therefore, Japan, Australia and New Zealand must implement conservation measures.   In effect, the scientific evidence, even if “uncertain” triggered the ITLOS’ application of the precautionary principle.  Thus, in making its decision to stop Japan’s actions, the ITLOS applied the precautionary principle.  

It is also important to note that the ITLOS did not radically apply the precautionary principle.   Even if the ITLOS could have banned Southern Bluefin Tuna fishing, transcripts of the ITLOS decisions demonstrate that the ITLOS did not consider a moratorium.   The ITLOS did not view the scientific data presented to be so dismal as to justify a ban on fishing.  The ITLOS looked at the scientific “trigger”, the stock evidence, and limited their solution to a precautionary conservation level.  The ITLOS application of the precautionary principle in the Southern Bluefin Tuna case solidifies and further evidences that the precautionary principle has become customary law in the international marine environment.

B. So, Are the Current Precautions and International Laws Working?

The international laws, precautions, and even the establishment of the CCSBT, actions are not effectively working to protect the Southern Bluefin Tuna.   In 1998, Australian scientists predicated that by 2020 there is more than a 50% likelihood that the Southern Bluefin Tuna’s spawning stocks will be at 0.   An increase of the quota by 3,000 tons would cause this likelihood to rise to approximately 75%. [25]

Data also suggest that as of 2005, the Southern Bluefin Tuna is still globally over-fished.  The 2005 data demonstrates that the spawning is below the 1980 levels, and is at a fraction of its original production.   “Given all the evidence, it seems highly likely that current levels of catch will result in further declines in spawning stock and exploitable biomass…”  The Southern Bluefin remains the most over-exploited tuna species.   

Due to the lack of improvement of the spawning stock and quarrels over quota setting, CCSBT has been highly criticized as ineffective.   The CCSBT has been condemned by Australian officials as failing to “fulfill its role of conserving the southern bluefin tuna.”  As the CCSBT works by consensus, when one country refuses to cooperate the CCSBT becomes useless.   Such ineffectiveness is demonstrated in the conflict between Japan, Australian and New Zealand in the Southern Bluefin Tuna case, when Japan refused to cooperate with CCSBT quotas.   “The CCSBT itself is all but dead as a means of regulating the Southern Bluefin Tuna fishery.”  Thus, the CCSBT, one of the most important international bodies protecting the Southern Bluefin Tuna faces worldwide criticism.   

Furthermore, even though the Tribunal’s ordered Japan to submit to mediation from the CCSBT, Japan has proved uncooperative in international efforts to protect or preserve Southern Bluefin Tuna.   In 1998 the CCSBT had immense trouble setting the 1998 quota, as Japan demanded a 3000 ton increase in the quota plus approval for another experimental fishing program.  In October 2006 Japan was caught in a “Southern Bluefin Tuna Scandal” as it had been illegally taking Southern Bluefin Tuna for the last 20 years for a profit of between $6-$8 billion dollars.   “The scandal was uncovered when Australian investigators found that the amount of highly prized sashimi fish being sold at Japanese markets was more than double the officially reported catch.” [26]   As a result of the scandal Japan was forced to make its official catch to 3000 tons, reducing the worldwide quota from 14,810 to 11,810 tons.   Japan also agreed to submit to control such as CCSBT representatives on boats and paper trails documenting boat-to-market sales and catches.  

The Japanese scandal, international criticism of the CCSBT, as well as the lack of international cooperation despite the UNCLOS, the Fish Stock Treaty, and ITLOS adjudications, demonstrates that international safeguards are not protecting the Southern Bluefin Tuna.  

IV. What CAN be done to protect the Southern Bluefin Tuna?

Thoughts and Recommendations

A. The Southern Bluefin Tuna should be nominated to CITES.

Although the Southern Bluefin Tuna’s protection falls under the UNCLOS and the Fish Stock Treaty, and is regulated and researched by CCSBT, the Southern Bluefin Tuna has not yet been nominated to the Convention on International Trade in Endangered Species (CITES) despite its role in international trade.   Currently over 5,000 animal species and 28,000 plant species are listed in CITES and 167 countries are members of CITES.  

CITES, effective July 1, 1975, seeks to regulate international trade in species and to establish safeguards for species exposed to extinction and overexploitation. [27]   The main goal of CITES is to promote sustainable use of trade of species based scientific data.   Trade, in the context of CITES, refers to the trans-boundary movement of species.   CITES classifies species into Appendices, I, II or III that refer to the status of the species.   Appendix I species are critically endangered, requiring both import and export permits in order to trade.  Appendix I species are the most protected. [28]   Appendix II species are not presently endangered, but could likely become endangered if they are not regulated.  Appendix III species are also not endangered, but are listed by a nation to prevent exploitation of a species.  

Furthermore, in order to trade a marine species, CITES requires that the species must have obtained an “Introduction from the Sea” certification.   An Introduction from the Sea refers to a certificate that states that the transported species has been taken from a marine environment.   The introduction of a marine species requires confirmation from a scientific authority that trade will not be detrimental to the species.   CITES permits nations to collaborate in conducting research to whether trade in a marine species is harmful to the species.  Therefore, in addition to any trade permits required by the designated appendix, any marine species must also have an Introduction from the Sea certificate in order to trade.

In addition to the Appendices and strict permit requirements, the CITES also contains provisions for the treaty’s enforcement.   In order to comply with CITES, a country must make laws that state trans-boundary movement of certain species without a permit is a punishable crime.   If a country is accused of non-compliance with CITES, the CITES Secretariat evaluates the state’s domestic regulations and permit actions.   If the country is found in non-compliance, it has approximately 18 months to bring its domestic legislation into conformity with the CITES provisions.   If, after one extension, a state has still not complied, the Secretariat may approach CITES standing committee and request a trade embargo against the state.   When in effect, all CITES members must participate in the trade embargo.   All states who join CITES accept the trade embargo as a penalty. Thus, countries who fail to comply with their CITES obligations face a harsh and possibly economically devastating penalty, making CITES enforcement extremely effective.   

B. Nominating the Southern Bluefin Tuna to CITES would provide an effective enforcement mechanism to police illegal fishing.

A nomination of Southern Bluefin Tuna to Appendix II of CITES will assist in the protection and policing of trade in the species.   Japan, Australia, New Zealand, Korea, Indonesia and Taiwan are all CITES members, and therefore, would all be bound to implement protection and policing of the Southern Bluefin Tuna.   CITES would require trade in the Southern Bluefin Tuna to remain at levels that would encourage the regeneration of the species and set trade a sustainable level.  Trade in the fish would require export permits as well as the use of already established scientific and management authorities for research and enforcement.  As a member of CITES, any mismanagement of the species, like the recent Japanese scandal, would face grave consequences due to the Treaty’s enforcement mechanism.

In order for CITES to include the Southern Bluefin Tuna on Appendix II, a member of CITES must nominate the species and the species must be approved by a 2/3 vote at a Conference of the Parties.  Australia has been opposed to nominating the Southern Bluefin Tuna to CITES, as it has taken the position that the CCSBT effectively regulates the species.   However, with the recent criticism of the ineffectiveness of CCSBT and the discovery of the Japan Bluefin Tuna scandal, Australia may have no other avenue than to make a CITES nomination.  

However, a nomination would face fierce opposition by Japan.   Japan and its allies within CITES would likely campaign against the Southern Bluefin Tuna nomination and would vote against the nomination.  Hopefully countries like Australia and New Zealand would rally together, create political pressure on other countries to support the nomination and present scientific research demonstrating the dire situation the Southern Bluefin Tuna faces if left unregulated. Then “Japan would be left in isolation, defending the indefensible—the right to drive a species to the brink of extinction, in order to eat unlimited amounts of tuna sashimi. ”  Incorporation into CITES is arguably most practical, logical, and readily available step in the attempt to curb the decline encourage protection of the Southern Bluefin Tuna.

C. In addition to CITES, technological and human surveillance should monitor each fishing vessel.

Although CITES seems like the next, logical step in order to increase protection of the Southern Bluefin Tuna, CITES enforcement mechanisms still face some classic problems.   For example, while fishing it may be almost impossible to regulate and to issue a permit for each fish arriving off of a fishing boat.   The difficulties in the industry itself provide a loophole for illegal fishermen to evade even CITES requirements.   Therefore, perhaps the best recommendation to help the plight of the Southern Bluefin Tuna, in addition to the CITES permit requirements, is to require surveillance on board each vessel that catches Southern Bluefin Tuna.  

The international organization, TRAFFIC Oceania through the CCSBT, has proposed such vessel monitoring systems be placed on each boat. Such vessel monitoring systems would display the exact location of the boat as well as what exactly the boats are catching.  Such a system would be further enhanced by the presence of a CCSBT representative on each vessel to monitor its location and catch. [29]   Such surveillance systems, using both technology and the human element would increase the probability of catching and deterring illegal fishermen.  

However, placing surveillance technology and personnel on board each fishing vessel would cost states enormous resources.   “Increasing the amount of surveillance could be a costly option but could, in certain circumstances, have the additional benefit of closer monitoring of the fishing activities of legal operators.”  In a world that does not have the resources to establish even the basic management system of the Fish Stock Agreement, it may be unrealistic to expect countries will expend resources on technology and personnel. Yet with the recent Japanese scandal and their acquiescence to have CCSBT representatives on their vessels, such surveillance solutions are already beginning to be implemented.  Combining CITES with surveillance, whether technological, human or both, provides the most effective recommendation for addressing the depletion of the Southern Bluefin Tuna.  

D. Other Recommendations

1. Tuna Farming

Another possible future avenue to curb Southern Bluefin Tuna and to let the species rebuild is the creation of more tuna farms.   In 1991 an experimental tuna farm was established in Port Lincoln, Australia.   The farm received funding from Japan, the Tuna Boat Owners of Australia, and the South Australian Department of Primary Industries.   The tuna are caught using the purse-seine method, and then towed to Port Lincoln, where they are placed in under water cages.   The tuna farmers developed a feeding system, using herring and pilchards, which allow the tuna to grow and increase value.   The tuna are kept in the farm for up to six months before they are harvested and sold for up to $20 per kilogram.  The harvest occurs between January and March of each year.

The tuna farms are not only useful for producing lucrative fish, but are also important for scientific research.   If scientists can create farms that not only enhance the growth of the fish, perhaps the farms can also re-create an environment that promotes spawning.   Although creating this environment is still undergoing research due to the Southern Bluefin Tuna’s migratory nature, the possibility may help the species regenerate back to sustainable levels.  Tuna farming presents a possible and realistic recommendation to regenerate the species back to sustainable levels.   

2. Moratorium and Re-Organization of the CCSBT

A non-governmental organization (the Humane Society International), is urging an international moratorium on Southern Bluefin Tuna fishing.   A temporary ban on fishing would allow the stocks to climb back to a sustainable level.   “The Humane Society International argues the only way Australia can stop illegal fishing is to have southern bluefin tuna listed as an endangered species with the United Nations, which would either severely restrict trade or stop it.” [30]   However, such a solution would have drastic impacts on not only the fishing economy of nations, but also dramatically affect the livelihood of fishermen themselves.   Therefore, an overall ban on fishing, even if only temporary, seems like an unrealistic solution.  

Instead of an overall ban on fishing, TRAFFIC Oceania suggests addressing problems within the CCSBT itself.   For example, CCSBT only requires members to record importation numbers.   A possible solution to monitoring and enforcing the total allowable catch quotas is to also audit member’s domestic catch.   Such requirements would allow more complete data regarding a nation’s quota and compliance.  TRAFFIC Oceania further suggests better monitoring on the fishing vessels themselves, discussed above.   TRAFFIC Oceania’s suggestions to directly address the CCSBT’s problems seem like a realistic solution to the current monitoring problems. However, although TRAFFIC Oceania’s suggestions address the current monitoring problems, the solutions do not provide for any further enforcement mechanisms or penalties for violations.   Therefore, such solutions still must be coupled with strict enforcement and penalties for states that violate quotas and international treaties.   TRAFFIC Oceania’s suggestions to address the problems within the CCSBT serve as initial, practical solutions to assisting the Southern Bluefin Tuna climb back to sustainable levels.   Thus, a reorganization addressing problems within the CCSBT itself is a realistic and plausible recommendation to assist the Southern Bluefin Tuna regenerate back to sustainable levels.  

V. Conclusion

Although international efforts, including UNCLOS, the Fish Stock Treaty, and the CCSBT have implemented regulations and penalties to protect and to preserve the Southern Bluefin Tuna, the continual decline of the species stock and violation of international agreements evidences that such actions are not effective.   The international community must explore new options in order to ensure the Southern Bluefin Tuna will not be fished into extinction.   Such options should include a CITES nomination, technological and human surveillance on fishing vessels, and a restructuring of the CCSBT.   Although such solutions and recommendations may require creativity, cooperation, and leadership, without different protection measures, the world will likely lose an important economic and scientific resource.