Four norms of environmentally responsible conduct seem particularly relevant to U.S. fisheries management. They emphasize sustainability, biodiversity, externality internalization, and a precautionary approach to resource use. They are highlighted in this review of global, multilateral, and bilateral fisheries agreements which the United States has signed or ratified, or which bind the United States as customary international law. Their influence on the drafting and implementation of the 1996 U.S. Sustainable Fisheries Act (SFA) is noted. When requested to review specific fisheries management decisions, the federal courts sometimes have supported rigorous implementation of the act's mandates to avoid overfishing, to rebuild overfished stocks, to reduce bycatch, and to designate essential fish habitat.

        The paper concludes with possible statutory changes meriting further discussion, including (1) express authorization of the use of marine reserves and "no take zones"; (2) repeal of the moratorium on individual fisheries quotas; (3) authorization of the collection of economic rent; (4) addition of a citizen suit provision; (5) extension of regional fishery management councils' jurisdiction landward to include the entire U.S. territorial sea as well as exclusive economic zone (EEZ), coupled with increased federal regulation of recreational fishing; (6) moving the landward limit (currently three miles offshore) on foreign commercial fishing in the U.S. EEZ seaward to twelve miles offshore; and (7) revision of the U.S. claim to U.S.-origin anadromous fish to make it compatible with international law.

        A. Global Framework. President Clinton presented the 1982 UN Convention on the Law of the Sea (UNCLOS) to the U.S. Senate for accession in October 1994, but the Senate has yet to act. Pending U.S. Senate action, most if not all of the UNCLOS fisheries provisions are binding on the United States as customary international law and thus are part of U.S. domestic law enforceable in U.S. courts (United States 1997). However, UNCLOS's extensive dispute resolution provisions, including the International Tribunal for the Law of the Sea that recently has rendered important decisions in some international fisheries management disputes (Kwiatkowska 2000; Oxman and Bantz 2000), are not customary international law and thus are not available to the United States. The United States has ratified the 1995 UN straddling and highly migratory fish stocks agreement, which mandates a precautionary approach that protects biodiversity and minimizes bycatch based on the best scientific information available. The United States also has adopted the FAO Code of Conduct for Responsible Fisheries and ratified the 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, which has not yet gone into force, but which the United States has implemented through the Fisheries Act of 1995. The FAO also has adopted a voluntary Plan of Action for the Management of Fishing Capacity, which calls on countries to develop national plans to manage and, as necessary, reduce fishing capacity by 2005 and to develop indicators of sustainable fisheries development (Garcia et al. 2000; Potts and Haward 2001).

        As defined in Article 2 of the 1992 UN Convention on Biological Diversity (signed but not yet ratified by the United States), which entered into force for ratifying nations in December 1993, "'[s]ustainable use' means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations." Pending ratification, the United States is obligated not to undercut the convention by Article 18 of the 1969 Vienna Convention on the Law of Treaties, which entered into force in 1988 without U.S. ratification, but which is binding on the United States as customary international law (Weymuller 2001, 845 n. 286).

        A few fish species threatened with biological extinction, most not of commercial significance, are listed under the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, to which the United States is a party. International trade in listed species generally is prohibited by the convention.

        B. U.S. Multilateral Fisheries Agreements. The United States is party to several important regional fisheries management agreements, many of them implemented domestically through legislation enacted by Congress (National Oceanic and Atmospheric Administration 1998, C-37 to C-47, J-9 to J-16). Examples include a new convention for the management of western and central Pacific tuna and other highly migratory fish stocks, signed in September 2000 by the United States, Australia, and twelve Pacific Island nations (Campbell 2000; Ward et al. 2000). The convention incorporates many of the management principles contained in the UN straddling stocks agreement discussed above. Ratification and coming into force of the agreement are expected to take several years.

        Agreements recently ratified by the United States include the 1998 Agreement on the International Dolphin Conservation Program, designed to limit the incidental take of dolphins in the eastern Pacific tuna fishery (Hedley 2001) and implemented by the International Dolphin Conservation Program Act (Defenders of Wildlife 2000). It went into force in February 1999. The United States has signed the 1996 Inter-American Convention for the Protection and Conservation of Sea Turtles, designed to minimize the incidental take of sea turtles in shrimp fisheries with the use of turtle excluder devices (Naro-Maciel 1998). The turtle convention is especially notable for the specific commitments to protect sea turtle habitat contained in Annex II and to comply with World Trade Organization (WTO) agreements contained in Article XV.

        Both these conventions are multilateral responses to fisheries incidental take issues which the United States had pursued unilaterally through congressionally authorized trade sanctions until the well-known adverse WTO decisions in the tuna dolphin and shrimp-turtle cases (McLaughlin 1999). Those WTO panel and appellate body opinions also raised questions about unilateral U.S. trade sanctions against nations violating other international and U.S. policies intended to promote sustainable fishing, such as driftnet prohibitions (Humane Society 2001). A principal message of the WTO cases is that trade sanctions based on multilateral agreements are more likely to be upheld when challenged before the WTO. The dolphin and sea turtle conventions also could serve as models for the negotiation of international agreements to utilize U.S. standards for reducing the bycatch of non-targeted fish, as authorized by the 1996 SFA (16 U.S.C. § 1822(h)).

        Several of the regional regimes to which the United States is a party are confronting enforcement challenges, especially against non-members (Bederman 2000; Plé 2000). Included in this group is the Convention on the Conservation of Antarctic Marine Living Resources implemented by the Antarctic Marine Living Resources Convention Act, which takes an ecosystem approach to managing Southern Ocean living resources and utilizes a precautionary approach to fisheries management (Parkes 2000). Judicial support for aggressive U.S. regulatory actions to close enforcement gaps with respect to U.S. flag vessels, such as vessel monitoring systems (Carr 1999), has been mixed (Blue Water Fisherman's Ass'n 2000).

        A more controversial regional agreement to which the United States is a party is the South Pacific convention prohibiting driftnet fishing, which is implemented by the U.S. High Seas Driftnet Fisheries Enforcement Act and Driftnet Impact Monitoring, Assessment, and Control Act. Rather than regulating the use of driftnets, the parties proceeded to absolutely prohibit their use based on fragmentary information about their impacts (Burke 2000, 123; Johnston and VanderZwaag 2000, 153).

        C. Bilateral Agreements. The United States is a party to over twenty bilateral fisheries agreements in addition to the regional and global agreements discussed above. However, with the phaseout of foreign fishing in the U.S. EEZ, most of these bilateral agreements, known as governing international fisheries agreements, are not currently of great significance. The remaining bilateral agreements of significance are U.S. agreements with Canada, such as the 1985 Pacific Salmon Treaty, which is implemented by the U.S. Pacific Salmon Treaty Act, and with Russia, such as the 1996 Agreement on the Conservation of Straddling Fish Stocks in the Central Part of the Sea of Okhotsk, implemented by the Central Bering Sea Fisheries Enforcement Act (as amended by the Sea of Okhotsk Fisheries Enforcement Act). Despite some implementation difficulties, especially under the Pacific Salmon Treaty with Canada, several fisheries governed by these agreements appear to be managed more sustainably now than in the past. Preventing overfishing is a principal goal of both the 1985 salmon treaty and the 1999 agreement implementing it; the 1999 agreement includes specific commitments to restore salmon habitat (Weymuller 2001). The other bilateral agreements are not particularly innovative with respect to implementing the international norms of biodiversity protection, externality internalization, and precaution.

        D. Domestic U.S. Law. The 1996 SFA's amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) authorize the use of a precautionary approach to overfishing but do not allow the collection of economic rent. They do contain provisions aimed at reducing bycatch of non-target fish. The SFA also requires the rebuilding of overfished stocks by, e.g., reduction in harvesting effort and capacity, regulation of new fishing gear types, and some protection of fish habitat. Wasteful practices such as shark finning and the stripping of roe from pollock while discarding the carcass are prohibited. However, a congressional moratorium on individual fisheries quotas to limit entry in overfished fisheries has been extended to October 2002 (16 U.S.C. § 1853(d)), despite a National Research Council report endorsing the use of such quotas in appropriate circumstances (National Research Council 1999b).

        The 1996 SFA has been supported with extensive National Marine Fisheries Service (NMFS) regulatory guidance and is beginning to have significant impacts on the design of fishery management plans (FMPs) by the regional fishery management councils, the review of FMPs by NMFS, the Commerce Department's review and approval of FMPs, and the federal courts asked to review the validity of regulations implementing FMPs. Judicial support for avoiding overfishing and rebuilding overfished stocks has been particularly impressive since the 1996 changes in overfishing law (Natural Resources Defense Council 2000). One can predict similar judicial support for council, NMFS, and Commerce Department rigorous implementation of the SFA's bycatch reduction (A.M.L. International 2000), essential fish habitat (American Oceans Campaign 2000), and new fishing gear management mandates. Some councils are implementing these mandates by including marine reserves or "no take zones" in FMPs (Greenpeace 2000). These techniques are the foundation for FMPs under which future fishing will be more sustainable with respect to not only the target species but also the habitat and ecosystems of which they are a part, including predator and prey species (Jarman et al. 1994; Macpherson 2001; National Research Council 1999a). Such ecosystem plans could pose special challenges in the judicial review process (In re the Water 2000).

        Reauthorization of the MSFCMA is before the 107th Congress. To support implementation of the 1996 mandates, four amendments are worth considering: (1) explicit legislative authorization for marine reserves or "no take zones" in FMPs; (2) repeal of the moratorium on individual fisheries quotas; (3) authorization of the collection of economic rent; and (4) inclusion of a citizen suit provision like that of the Endangered Species Act and most other major federal environmental statutes. The latter would authorize "any person" with a broadly defined interest in SFA compliance to bring suit in federal court where there has been demonstrated non-compliance with an important SFA mandate.

        In addition, congressional adjustment of current federal-state fisheries management roles should be studied. The states' traditional prominence is reflected in their substantial representation on the regional councils, MSFCMA section 306(a)'s preservation of state fisheries jurisdiction beyond state boundaries, section 306(b)'s limitation on pre-emptive federal management within state boundaries, and the dominant state fisheries role within three miles confirmed by the Submerged Lands Act. Unfortunately, the current arrangements largely ignore the fact that approximately 90 percent of the fisheries resources found off United States coasts are interjurisdictional, i.e., they migrate across state lateral boundaries, other nations' maritime boundaries, or the federal-state boundary. The current MSFCMA regional council scheme reduces but does not eliminate the significance of state lateral boundaries and the federal-state boundary three miles offshore. As suggested by the Australian (Garcia et al. 2000; Hildreth 1991b; Potts and Haward 2001) and Canadian (Hildreth 1991a) experiences (Bergin et al. 1996), more unified management on both sides of the three-mile line seems called for and could be accomplished by extending the MSFCMA regional council system landward, coupled with increased federal regulation of recreational fishing.

        Also, the MSFCMA's landward limit on foreign fishing in the U.S. EEZ could be moved seaward from coastal state boundaries to the seaward edge of the U.S. twelve mile territorial sea in accordance with UNCLOS (Ballweber and Hildreth 1991). Finally, MSFCMA section 101(b)(1)'s claim to U.S.-origin anadromous fish beyond the U.S. EEZ (except when they are in another nation's EEZ or territorial sea) conflicts with UNCLOS Article 66's mandates for cooperation with other nations and thus needs to be amended.

        All changes to U.S. fisheries statutes and implementing regulations must be continuously monitored for their consistency with customary international law and treaties to which the United States is a party, because of the U.S. doctrine that later statutes and regulations which conflict with earlier treaties are effective for purposes of domestic U.S. law (United States 1982).

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