Experimental catches and the precautionary approach: the Southern Bluefin Tuna dispute

Southern Bluefin Tuna (SBT) is a depleted stock with a rebuilding target and timeframe defined by the responsible management body (CCSBT). All recent stock assessments have found that the stock is depleted but large differences exist in estimates of recovery probabilities under current catches. In 1996, CCSBT adopted a set of principles and a process for considering experimental fishing, which are fundamentally consistent with an actively adaptive management policy. Substantial efforts to develop a program in line with these principles did not succeed, partially due to the lack of a decision-making framework. In 1998 and 1999, Japan conducted unilateral experimental fishing arguing that the additional substantial catches could reduce uncertainty in stock assessments and thus were justified. This led to international legal proceedings under UNCLOS, in which preliminary measures were issued preventing further unilateral experimental fishing (these were later rescinded when an UNCLOS arbitral tribunal found that it lacked jurisdiction in the dispute). This decision has been cited as a possible manifestation of industryʹs “worst fear with the implementation of the precautionary approach”. This paper examines the SBT dispute in relationship to adaptive management and the precautionary approach, Results of recent stock assessments indicate that the Japanese experimental fishing, even if successful, was unlikely to resolve the disparity in estimates of the recovery probabilities or provide an improved basis for management decision making. In this context, it is the absence of a management framework, rather than a fundamental problem with adaptive management, that challenges the compatibility of these experimental fishing catches and the precautionary approach. The real issue in the SBT situation is the standards and burden of proof required if experimental fishing is to be considered.