The Pacific Salmon Controversy: Law, Diplomacy, Equity, and Fish

Abstract

On 18 July 1997, the Canadian government formally accused the United States of violating the 1985 Salmon Treaty and requested that the United States submit the issue to binding arbitration. The next day, angry Canadian fishers began a three-day blockade of the U.S. ferry Malaspina when it entered port in Prince Rupert, British Columbia. The U.S. State Department (1997e) condemned the action, while the U.S. Congress (1997) called upon the president to use all necessary and appropriate means to prevent further such actions. The latest round of the Pacific salmon war was underway. Both the tone of the diplomatic exchange and the blockade were unusual occurrences in the bilateral relationship. International is rarely invoked in their dealings and third-party dispute settlement seldom employed. Low-level diplomacy is generally favored over confrontational assertions of legal and complex boundary problems, particularly involving environmental and resource interests, are more often handled by joint technical bodies than adjudicative institutions. Bilder (1975, 176-179) is among those who argue that this reflects a healthy situation. The clear suggestion of many observers is the fewer formalities and the less law the better. Yet international does have a place in this relationship, and it is one that deserves serious analysis. This article examines the Canada-U.S. salmon dispute with a particular focus on some of the ways issues of international have intersected with the political processes at work. Beginning with a brief overview of the eastern salmon fishery and the drafting of the 1985 Salmon Treaty, it then describes what has happened since the treaty was ratified and looks at some of the many diplomatic attempts to answer questions the agreement left unresolved. The third section outlines the major legal questions raised by the dispute and the positions each side has adopted, largely through the public statements of government officials. Finally, the article analyzes how international has affected the dispute itself. No attempt is made to decide which side is right nor even to measure the impact of law. Any such assessment must await the outcome of a dispute that is still very much in progress. What does seems clear now, however, is that even in the case of the special relationship enjoyed by Canada and the United States, international does matter, even if its impact is not always constructive. But equally it is clear that to resort to legal claims is more a sign of the breakdown of relations than a process likely to improve them. The Context Salmon are a resource of tremendous importance to both nations. Roughly a $600 million per year fishery, it is one deeply embedded in the culture of the Northwest. An anadromous species, salmon spawn in fresh water and travel downstream to the ocean where they spend most of their lives, often migrating great distances until returning to spawn and die in the rivers in which they were born. This migratory pattern normally takes the salmon beyond the limits of the jurisdiction of their state, where they are vulnerable to interception, either in the high seas or in the waters of another nation. This presents serious problems for management. If substantial numbers are caught outside the home state it reduces both the number returning to spawn and the stocks available for home-state harvest. Protection of salmon can require substantial efforts to protect inland spawning areas and to make rivers navigable for returning fish; aggressive external fisheries undercut the incentive to accept these costs. Moreover, because salmon stocks commingle in the open ocean, it is difficult to target specific stocks for special protection. In the eastern Pacific, a number of factors add to the complexity of the management challenge (Wood 1997). First, five different salmon stocks have been the object of regulation, ranging from the highly prized chinook (or king) salmon, to the coho, pink, chum, and sockeye salmon. …