Processing capacity must be enlarged to handle 

 the induced peaks in production and it remains 

 under-utilized for much of the year. Higher storage 

 costs are incurred and the risks involved in holding 

 inventory over longer periods of time, borne 

 initially by fish processors and marketers, ulti- 

 mately result in lov^^er prices to fishermen. Instead 

 of enjoying a steady flow of fresh hahbut, the 

 consumer receives it in less desirable frozen form 

 for much of the year.^ * 



Finally, in some cases, exemphfied by the 

 earlier attempts to regulate Antarctic whaling, a 

 total catch limit, by itself, may force the partici- 

 pants in the fishery competing for it to fix the 

 limit at a level higher than that called for by sound 

 conservation practice. (A quota somewhat less' 

 than that required by sound conservation practice 

 has been agreed upon recently, but only after 

 severe damage had been inflicted on the whale 

 stocks). 



From an economic point of view, the ideal 

 regulations affecting mortality would include a 

 total catch quota designed to maximize net eco- 

 nomic return and restrictions on entry that would 

 limit the number of operating units, each of 

 maximum efficiency, to the minimum required to 

 take the quota on a full time basis. ^ ' 



b. The Abstention Doctrine The International 

 Convention on the High Seas Fisheries of the 

 North Pacific Ocean is the only fishery convention 

 in which State parties agree to abstain from fishing 

 for specified stocks of fish (salmon, halibut and 

 herring) in specified areas of the high seas.^ * The 

 International North Pacific Fisheries Commission 

 is authorized to recommend, after study, that the 

 abstention principle shall no longer apply to a 



Ibid. See also, Crutchfield and Zellner, note 5, supra; 

 and Dodyk, Report on the International Law of Ocean 

 Fisheries 20 (Prepared for National Council on Marine 

 Resources and Engineering Development, 1967). 



Economic Aspects of Fishery Management, at 8. 



28 



See Appendix B. For general discussion of the 

 abstention doctrine, see Yamamoto, The Abstention 

 Principle and its Relation to the Evolving International 

 Law of the Sea, 43 Wash. L. Rev. 45 (1967); Herrington, 

 Comments on the Principle of Abstention, Papers Pre- 

 sented at the International Technical Conference on 

 Conservation of the Living Resources of the Sea, Rome 

 1955, U.N. Doc. A/Conf. 10/7, at 344-49; Van Cleve, The 

 Economic and Scientific Basis of the Principle of Absten- 

 tion, Law of the Sea, Official Record, U.N. Doc. A/Conf. 

 13/3, at 47-63. 



specified stock of fish in a specified area or that it 

 shall apply to additional stocks of fish in addi- 

 tional areas. 



There is no completely satisfactory answer to 

 the problems raised by the abstention doctrine. It 

 has been strongly advocated by the United States 

 on the ground that the nation through whose 

 efforts and money a high seas fishery has been 

 developed, and through whose regulatory measures 

 (and consequent restraints upon its fishermen) the 

 fishery is being conserved, should have priority in 

 its exploitation. If the stocks are being fuUy 

 utilized, that Nation should even have the right to 

 exclude others who made no similar contribution 

 to the fishery. 



Varied objections were voiced against the 

 abstention doctrine when it was proposed by the 

 United States and rejected during the deliberations 

 that preceded the adoption of the Convention on 

 Fishing and Conservation of the Living Resources 

 of the Sea.^^ It was maintained that the doctrine 

 discriminated against the developing nations and in 

 favor of the developed nations; it conflicted with 

 the principle of freedom of the seas; it was subject 

 to abuse by nations which might claim incorrectly 

 that certain fisheries had been developed to their 

 maximum sustainable yield by their efforts alone; 

 and it was based upon inadequate study of the 

 relevant biological, economic, social and political 

 factors. 



It is most unlikely that the abstention doctrine 

 will prove to be acceptable as a means of excluding 

 new entrants from fisheries already being ex- 

 ploited fuUy. The controversies engendered by the 

 application of the doctrine in the North Pacific 

 Ocean attest to this conclusion. The United States 

 has a strong case here. It has restrained its own 

 fishermen for more than 50 years to rebuild the 

 salmon runs; and it has spent hundreds of millions 

 of dollars for pollution control, fish ladders, fish 

 hatcheries, artificial propagation and research to 

 protect and enhance the salmon population. 



The Japanese do not deny that the United 

 States should have certain special rights with 

 respect to the salmon but argue that these rights 

 should be commensurate with the United States 



See generally, McDougal and Burke, The Public 

 Order of the Oceans 956-60 (1962); Johnston, The 

 International Law of Fisheries 275-82, 289-97 (1965). A 

 good deal of the following discussion is based upon these 

 sources, as well as the sources cited in note 28 supra. 



VIII-50 



