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U.S. Department of State

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Frank E. Loy
Under Secretary for Global Affairs
U.S. Department of State
Doherty Lecture, University of Virginia Center for Oceans Law and Policy
Washington, DC, May 11, 1999

Blue Bar rule

INTRODUCTION

Good afternoon. I want to thank the University of Virginia's Center for Oceans Law and Policy for inviting me to give the 22nd Doherty Lecture. I accepted the invitation enthusiastically, because I knew this would be an excellent forum in which to talk about two related matters that are of great importance to me -- the current state of the oceans and our diplomatic efforts at improving it.

I know a lot of you here are veterans of the Law of the Sea wars. I want to thank you and commend you for your years of hard work on that vitally important treaty.

What I'd like to do is:

It's been about 30 years since the American environmental movement got started in earnest.

And since that first Earth Day in 1970, we've taken action against all manner of environmental problems -- air pollution water pollution, wildlife loss, hazardous waste and many others. Until fairly recently, though, it seemed that no one was paying the kind of attention to the oceans that they deserved. It seemed unthinkable that the depredations of humanity could have an appreciable effect on something so vast. The oceans seemed infinite.

In 1956, a marine biologist wrote: "It may be rash to put any limit on the mischief of which man is capable, but it would seem that those hundred and more million cubic miles of water . . . is the great matrix that man can hardly sully and cannot appreciably despoil."

As the 20th Century draws to a close, there is a growing awareness that such thinking is naive, and that the oceans are not impervious to our assaults. There has, in fact, been a marked and salutary change in the way interested people think about the oceans. Where we once were concerned about how best to exploit them, we now concentrate more on how best to conserve and protect them. Last year's designation as the "Year of the Ocean" is probably the best-known manifestation of this.

STATUS OF THE OCEANS

Nonetheless, there remain serious problems in the marine environment. Overfishing, marine pollution, destruction of wetlands, coral reefs and other marine ecosystems are still occurring to alarming degrees.

Overfishing: According to the UN Food and Agriculture Organization, about two-thirds of the world's fisheries have been fished to or beyond their ability to sustain themselves. Interestingly, the total global catch has remained relatively stable in terms of volume; but we're catching different species now -- fishing down the food chain, you might say. As stocks of commercially valuable fish such as cod, pollock and bluefin tuna become depleted, fishers start looking for species that they used to call trash fish -- dogfish, skate, monkfish and others.

On the high seas, there are simply too many boats chasing too few fish. And many of them have had the benefit of government subsidies that help them fish even more unsustainably, such as by using sophisticated equipment that maximizes their catch.

Swordfish and tuna fishers, for example, use long-lines -- high-strength fishing lines that string out 20 miles or more behind the boat and carry as many as 3,000 baited hooks. Long-lines don't just maximize the catch of the targeted species, they maximize the "by-catch" of myriad other species. According to the National Marine Fisheries Service, about half the marine life that's caught with long-lines is "by-catch" -- stuff the fisher doesn't want -- and is thrown back into the water. And most of what's thrown back is dead.

And that's all legal. There is, in addition, a growing scourge of illegal fishing and illegal trade in seafood and other marine products. Asian crime syndicates -- primarily Chinese -- are heavily involved in poaching abalone, for example. South African officials last year confiscated 13,000 abalone that had been illegally taken.

Marine pollution: As the world's population continues to migrate toward the coasts -- about a third of the world's people now live within 60 miles of a coastline -- the toll of land-based pollution gets worse. Almost half of marine pollution flows into the sea from rivers and estuaries. Another third of marine pollution turns out to be airborne -- carried by the wind and deposited far out to sea.

Unfortunately, cleaning up the immediately adjacent land areas -- an absolutely necessary step -- is not a sufficient clean-up action.

A relatively new addition to the marine environment is the scourge of persistent organic pollutants, such as DDT and PCBs. POPs migrate by air and fall onto into the water in the colder regions. POPs are also highly persistent; they don't degrade easily. A recent survey of Baffin Island-based Inuit people, who eat a lot of fish, walrus and seal meat, found dramatically elevated blood levels of two agricultural insecticides that are not used in that region and were banned in the United States in the 1980s.

Coral reefs: Another sign of things gone awry is the condition of coral reefs around the world.

In March, the State Department released a really quite alarming report on coral reef bleaching. Put together by two scientists on our staff, the report illuminates a severe bleaching and mortality event that occurred on many reefs around the world -- in fact the most severe event of its kind in the modern record. For example, it killed 80 percent of the coral in the reefs around the Seychelles in the Indian Ocean. The report explains that an increase in ocean temperatures brought on by climate change appears to have been the leading culprit.

Coral reefs are among the world's richest, most productive ecosystems. They are also thought to be among the most susceptible to the effects of climate change in that corals are especially sensitive to increased sea surface temperatures.

Thus, it seems that last year's event was not to an isolated anomaly, but rather a likely harbinger of things to come: as global temperatures continue to rise, driving sea surface temperatures upward, these bleaching and mortality events are likely to become more frequent and more severe.

THE GOOD NEWS

Lest you mistake me for the grim reaper, let me report that there is some good news in the marine environment.

As I mentioned, there has been a palpable change in our collective understanding of the oceans. And this change is manifest in a number of recent events.

For example, a year ago this month the United States and seven other countries signed an agreement to protect dolphins in the eastern Pacific from being harmed or killed by tuna fishing. This agreement has reduced dolphin mortality in that fishery -- the only one where dolphins and tuna commingle -- by about 98 percent.

The U.S. and other Western Hemisphere governments have also negotiated an agreement to protect endangered sea turtles in the Western Hemisphere from various life-threatening perils, such as drowning in shrimp nets. This has been the leading cause of a precipitous decline in their numbers. As you may not know, most of what comes up in a shrimp net is not shrimp. By-catch, which can include turtles, can outweigh the target catch by as much as five-to-one, and most of the by-catch goes back into the water dead. But the use of turtle excluder devices, or TEDs, has done a great deal to protect sea turtles.

The new Inter-American Sea Turtle Convention is awaiting the Senate's approval, and we strongly hope to win that by the end of this year.

Meanwhile, some Indian Ocean nations have expressed an interest in negotiating a sea turtle agreement for that part of the world, and we are working closely with them on that.

We've also made great progress in ridding the seas of large-scale drift-nets, which, like long-lines, are highly indiscriminate and destructive. A large drift-net can run as long as 40 miles and will ensnare literally anything that comes into contact with it, including birds that get entangled in the tops of the nets at the surface. Thanks to the efforts of this country and others, the UN imposed a moratorium on large-scale drift-nets in 1993. The moratorium has been quite successful, although we are still negotiating with Italy about the conversion of its drift-net fleet and we still need to be vigilant about the use of drift-nets by rogue vessels around the world.

Our new way of thinking about the oceans has significantly changed the tenor of the debate about fish and other marine resources. Where the fisheries community once argued about resource allocation -- who gets how much of what -- we're now focusing more on resource conservation. This has particularly been the case recently in negotiations with Canada over Pacific salmon. A mutual commitment to conservation is now a central feature of those talks. This has not always been the case.

We're also making real progress in marine science. New studies of large marine ecosystems have led to better management of fisheries resources. And research has made us better equipped to identify and discriminate between natural and anthropogenic causes of coastal ecosystem decline, such as in coral reefs.

HISTORIC AND EXISTING INTERNATIONAL TOOLS

Because the oceans don't respect international boundaries, our efforts to protect them necessarily involve international collaboration. And that collaboration, in turn, depends on available diplomatic tools.

As most of you know, the most basic of those is the 1982 Law of the Sea Convention and the accompanying 1994 agreement on the Part XI deep sea-bed mining provisions -- a comprehensive framework for governing and managing the use of the oceans. It reflects a global consensus on the extent to which countries can exercise jurisdiction over their coastal waters. And it spells out the rights and obligations of countries with regard to marine resource conservation (both in coastal waters and on the high seas) and with regard to avoidance of marine pollution from all sources.

The Law of the Sea Convention is widely accepted, some 130 countries having ratified it. That number includes most of the world's wealthier, developed countries, but unfortunately, not this one. Our ratification requires the Senate's approval, which has yet to materialize. Not being a party to it deprives us of a seat at the table when other governments are making the rules that will govern resource exploration and exploitation -- by all companies, including our own -- in deep sea-bed areas beyond national jurisdiction. Our absence also deprives us of a leadership role in protecting the navigational freedoms that are so vital to our economic and national security interests.

At the same time, however, we are part of a system of more specific marine environmental agreements, via the International Maritime Organization. The IMO has responsibility for more than 35 agreements that address marine pollution, safety, liability and shipping. And we are negotiating new arrangements and strengthening old ones.

The U.S. is also an active participant in a number of regional programs that operate under the auspices of the UN Environment Program. They generally deal with more localized marine pollution problems, such as in the Caribbean or the South Pacific. Pending before the Senate, for example, is the agreement establishing the South Pacific Regional Environment Program. This would establish an intergovernmental organization to promote cooperation in the South Pacific region and protect and improve the environment. We'd like to see action on this convention in the near future.

Agenda 21, the global environmental action plan that came out of the 1992 Earth Summit in Rio de Janeiro, set out a plan for protecting marine and coastal environments, through sustainable development of coastal areas and other means. And it called for a new global effort to combat land-based sources of ocean pollution. As a result, the U.S. hosted a conference of the UN Environment Program in Washington in 1995, and that conference produced a Global Plan of Action on Protection of the Marine Environment from Land-Based Sources of Pollution.

The United States also launched the International Coral Reef Initiative, a partnership of governments, NGOs, scientists and private interests with a common concern for protecting, managing and monitoring coral reefs.

And, the U.S. is an active participant in a series of regional fisheries organizations and arrangements that manage fisheries around the world.

These are all useful tools, but needless to say, they're not enough.

THE MODERN DIPLOMATIC CHALLENGE

Repairing the damage that has been visited upon the oceans is a much greater challenge than, say, cleaning up the Chesapeake Bay -- not just because the oceans are so huge, but because no one has full authority over them. The EPA can issue a regulation requiring Eastern Shore hog farmers to keep their waste out of the watershed and they have to comply. But there is no parallel on the high seas, which cover two-thirds of the world's surface. No one's in charge.

In the 20 years or so since the negotiation of the Law of the Sea Convention, there has been a very fortunate sea-change, if you will, in the focus of the marine discussion. As I said earlier, the old debates over jurisdiction have for the most part been settled. As we have come to realize the extent of our impact on -- and degradation of -- the oceans, we've also come to realize that our emphasis has to shift from allocation to conservation. In other words, it is today better understood and appreciated that ocean ecosystems and marine resources -- just like all other natural resources -- are finite and we need to exploit them in a sustainable fashion.

And since no one's in charge of the high seas, the making of treaties and the use of economic leverage are about the only tools we have for ensuring the civilized and responsible use of ocean resources. Let me list some of the ways in which we must use these tools:

First, we need to become a party to the Law of the Sea Convention. This will, among other things, give us the clout we need to exact responsible behavior from others. This convention is among the administration's highest priorities for Senate approval this year.

Second, we absolutely must reduce the over-capacity that is wiping out so many of the world's fisheries. A part of that effort has to be to persuade the major fishing powers to phase out the government subsidies they provide their fleets.

At our urging, the FAO has recently developed an action plan for reducing over-capacity and dealing with the subsidies issue. But we are only starting on what will be a long and difficult endeavor. Much more needs to be done.

Third, we have to attack the atavistic problem of flag state control and, in particular, the problem of flags of convenience. There are simply too many vessels out there flying the flags of states that are unwilling or unable to ensure that they operate in accordance with internationally agreed-upon rules. As our appreciation for conservation over allocation grows, we also realize that rogue nations and vessels can undermine carefully structured and fragile conservation regimes. This will require the development of some new rules of law and the use of economic tools. We've made some progress here. The old rule of sole state flag control on the high seas is starting to give way to broader enforcement and control by others. For instance, responsible nations that are members of some of the regional fisheries conservation agreements will now, on a collective basis, deny market access to fish caught by vessels that don't fish by the rules.

An example: the International Commission for the Conservation of Atlantic Tunas, or ICCAT, found that fishing vessels from non-member states were damaging its efforts to conserve bluefin tuna and swordfish. So, ICCAT developed a response: it identifies non-member countries whose vessels are fishing at cross purposes to ICCAT's conservation measures and it gives those countries a year to clean up their act. If they don't, ICCAT members can, at their discretion, ban imports of bluefin tuna and swordfish from those countries. Since this regime took effect in 1994, ICCAT has identified Belize, Honduras and Panama as irresponsible users of the Atlantic tuna fishery and has authorized import bans against them. And, more recently, ICCAT has found that those same three countries' vessels fish for swordfish in a way that harms that fishery, so they may soon face swordfish trade sanctions as well.

Fourth, we must work to see the Straddling Fish Stocks Agreement put into effect. The U.S. has ratified this agreement, but it's still 10 short of the 30 ratifications it needs to take effect. It offers critical new legal tools to ensure -- and enforce -- sound management for species that migrate between coastal waters and the high seas, such as tuna.

There are some other initiatives that we can and should take. For example, we should encourage the major fishing nations to ratify, as we have, the 1993 FAO compliance agreement that will establish a new and badly-needed database for monitoring all high seas fishing activity. This agreement is 11 short of the 25 ratifications it needs to take effect.

And we must actively encourage and coordinate scientific efforts to monitor and gather information from the marine environment.

TREATIES

The most important and effective tool we have available to us for bringing about the kinds of changes I've described is the making of treaties. The global commons -- the oceans, the atmosphere, outer space -- belong to all the world's people. So, ruling out war, the only way to govern their use is through international agreements. Yet in our society, there is a good bit of ambivalence to treaties, particularly those negotiated under the auspices of an international body such as the UN. The objections tend to have three different themes: (A) treaties cost money; (B) they occasion the creation of new international bureaucracies; and (C) they deprive us of some measure of our national sovereignty.

Now, there may be some truth to each of these arguments. But, when considering a treaty, the questions we must ask ourselves are: do the costs outweigh the benefits? Does signing a treaty amount to a net loss or a net gain in terms of our national interests? And, how do we convince a skeptical American public and U.S. Congress that treaties sometimes represent the most efficient and cost-effective way of advancing and protecting those interests?

The answer, I think, is that we must do a better job of persuading the interested public to judge each agreement on its merits -- and of drawing attention to existing treaties that have had few or none of these consequences.

CONCLUSION

I've given you today a summary of some of the larger problems we're facing in the marine environment. And I've tried to offer some reasons for optimism that these problems can be solved. And with the right amount of intellectual capital, richly applied, I'm confident they can be. The contributions in research, education and public discussion that the Center for Oceans Law and Policy and similar institutions have been making are absolutely invaluable to all of us who are involved in this effort.

So, thank you for your good work.

[end of document]

Blue Bar rule

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