The 1953 International North Pacific Fisheries Convention: Half-century Anniversary of a New Departure in Ocean Law

Harry N. Scheiber, Co-Director, Law of the Sea Institute, University of California, Berkeley

In June 1953, just fifty years ago, the International North Pacific Fisheries Convention—one of the most important fishery treaties in modern history—entered into force. Negotiated in Tokyo in November and December 1951, its signatories were Japan, Canada, and the United States. Under its terms, the tripartite North Pacific Fisheries Commission was established, its charge being to oversee and evaluate scientific research on the condition of salmon, halibut and other designated fish stocks in the eastern North Pacific Ocean area. In addition, the Commission was empowered to establish actual allocation levels for the catch in high seas waters.1

This treaty was truly historic in ways that are well worthy of our attention today, as we recall the several dimensions of its context when the three North Pacific nations fashioned its terms.

First, it was noteworthy if for no other reason than it was the first international engagement undertaken by the Government of Japan beyond the Peace Treaty and defense pact that ended the postwar Occupation (1945-52), restoring Japan to full sovereign status in the global community of nations. The timing accurately reflected the exceptionally important place of ocean fishing in the Japanese economy and in Japan’s diplomatic priorities.

A second historic feature of the Convention was that it represented the culmination of the United States government’s postwar policy of promoting the rapid and full restoration of Japanese fishing capacity. The Occupation, under General Douglas MacArthur, had given highest priority to rebuilding Japan’s fishing fleets as a way of stimulating general economic recovery while providing for Japanese nutritional needs. Over the bitter objections of the British Commonwealth, China, and the Philippines, MacArthur’s occupation regime returned Japan in a major way to Antarctic whaling; and it promoted the expansion of distant water fishing, including factory ship expeditions for tuna in the South Pacific. The Occupation also built up the trawling fleet to the point where by 1949 it was depleting stocks in waters off the Chinese and Korean coastlines; and it promoted fish exports even when they meant new competition for the American fishing industry. Hence in this feature of its contemporary context, the North Pacific Convention should be seen as the capstone of an established policy.

To be sure, as will be explained below, the treaty placed a seaward limit in the Northeast Pacific beyond which Japan was committed to refrain from fishing salmon or halibut under specified conditions, and in that sense worked against Japan’s desires. But in the large sense it was only one feature of a larger U.S. policy that had championed Japanese fishing interests and the expansion of Japan’s fishing enterprises in far-flung areas of the globe. Perhaps most important to remember is that this largely benevolent U.S. policy toward Japan was pursued in a way that overrode and ignored the wishes and interests of America’s wartime Allies.2

A third aspect of the Convention that gave it great significance in 1953 was its introduction into ocean law and diplomacy of what was known as the “abstention doctrine” or “abstention rule.” This phrase referred to terms of the Convention by which each power agreed to abstain from fishing of those species that were determined scientifically to be under exploitation at the point of “maximum sustained yield.” In this respect, the treaty represented a major departure from the traditional doctrine of freedom of fishing on the high seas, out beyond the limits of offshore national jurisdiction (that is, beyond the boundaries of the coastal States’ territorial seas, typically three miles offshore). Abstention was by agreement, hence voluntary, so that technically, freedom of the seas as the overriding principle was preserved. Moreover, as became an issue later on, no other nations than the three signatories were in any way legally obliged to abstain from fishing on stocks that the Convention was protecting.

For many Japanese commentators, then and even today, the Convention represented a surrender of the “freedom of the seas” principle, entirely to Japan’s disadvantage, as they claim; and they attribute it to duress, because in effect the U.S. Government had extracted from Japan’s prime minister in 1951, while the Occupation was continuing, a promise to conclude a fisheries agreement as part of Japan’s commitments in return for an early peace-treaty settlement.3

In fact, the U.S. diplomatic archives reveal that the State Department did not force the terms of the treaty upon Japan; to the contrary, the American negotiators were deeply worried that the talks would break down at one point. In addition, the terms of the Convention—typically denounced by Japanese legal and political commentators as harmful to Japanese fishing interests—in fact were highly advantageous to Japan in ways that the Japanese fishing industry and government officials fully understood in 1951-53, as evidenced in recently opened archival records in Tokyo. This was so because “abstention” as defined in the Convention would apply only to fish stocks that were already under a scientific management regime with conservationist purposes, and where proof was forthcoming that the fish were being exploited at maximum sustained yield. There was no other such regime in effect anywhere in the Pacific Rim or Indian Ocean at the time, and so the Japanese negotiators were victorious in establishing the precedent on terms that placed them in a position to resist efforts by other governments (such as Australia’s, which wanted to exclude Japan’s fleets from waters in the entire Southern Hemisphere!) to use the North Pacific Convention as a model for exclusionist policies.4

Indeed, insofar as the Convention provided a model in international fisheries diplomacy and management, it was in its advancement of the international commission concept. In that respect, too, it built upon an ongoing aspect of U.S. policy, already expressed in American support for the International Whaling Commission and the initiative of the U.S. Government in creating commissions for tropical tuna in the Eastern Pacific and for the ocean stocks of the Northwest Atlantic.5 Moreover, despite continuing tensions regarding abstention itself and the allocation policies, the Convention remained in effect for two decades—serving as the mechanism for maintaining the uneasy but steady balance of fishing powers in the Northeast Pacific, and as the protector of maximum sustained yield in the crucially important salmon fishery. In that respect, it bridged the period from the immediate postwar settlement to the advent of the extended 200-mile exclusive zones that rendered necessary a newly designed regime both in the Northeast Pacific and in other ocean fishing areas of the globe.

Even today, it casts a long shadow, as the implementation of the United Nations Straddling Stocks Convention will (if successful) revivify and apply the abstention doctrine in a new context while adapting in this new arena of high-seas fisheries management the international commission model. In one respect there is a major departure, however: the “maximum sustained yield” standard served well in its day, but is now remembered as the precursor of more protective concepts such as the precautionary principle and the conservation of marine ecosystems as central features of modern high seas fishery management.

ENDNOTES
1. 205 United Nations Treaty Series 80. For historical analysis and accounts of the treaty’s operation, see Harry N. Scheiber, Origins of the Abstention Doctrine in Ocean Law: Japanese-U.S. Relations and the Pacific Fisheries, 1937-1958, 16 Ecology Law Quar. 23-99 (1989); and Roy I. Jackson and William F. Royce, Ocean Forum; an Interpretive History of the International North Pacific Fisheries Commission (1986).
2. See, inter alia, Harry N. Scheiber, Inter-allied Conflicts and Ocean Law, 1945-53: the Occupation Command’s Revival of Japan’s Whaling and Marine Fisheries (Tapei: Academia Sinica Press, 2001).
3. The most prominent legal commentator who has advanced this view is Judge Shigeru Oda of the International Court of Justice. See. e.g., Oda, International Control of Sea Resources 90 (1963) (characterizing the abstention doctrine as “very similar to acquisitive prescription . . . [and] completely contrary to the concept of freedom of the sea.” A reiteration of this exact view was voiced by Professor Yasuko Tsuru of Japan, in her presentation on the abstention doctrine to the February 2003 Law of the Sea Institute conference, “Multilateralism and International Ocean Resources Law” at UC Berkeley (to be posted on the LOSI website at http://www.law.berkeley.edu/cenpro/earlwarren/lawofthesea.html )
4. A valuable autobiographical account of the Convention’s negotiation, by the head of the American delegation and principal author of the abstention doctrine, is by William Herrington, In the Realm of Diplomacy and Fish: Some Reflections on the International Convention on High Seas Fisheries in the North Pacific Ocean and the Law of the Sea Negotiations, 16 Ecology Law Quar. 101 (1989). Based on evidence from the U.S., Canadian, Australian, United Kingdom and New Zealand archives, an account of the diplomatic context, with conflicted Allied and U.S. positions vis-à-vis Japan’s long-run interests, is in Scheiber, Inter-allied Conflict, supra, at 175-96.
5. See, inter alia, Albert W. Koers, International Regulation of Marine Fisheries: A Study of Regional Fisheries Organizations (1973); and Harry N. Scheiber, Pacific Ocean Resources, Science, and Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries, 13 Ecology Law Quar. 381 (1986).