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


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:

-- review the state of the oceans as we see it;

-- talk about some historic and existing international tools for
protecting them;

-- elucidate the modern diplomatic challenge of stopping their
deterioration;

-- and finally, talk about some new directions in marine
conservation.

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.


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