THE BERING SEA OPPOSITION OF RUSSIA AND THE USA: CONTINUED TENSITY OR COLLABORATION?

 

 

Previously, deputies of the Soviet Union and then deputies of the RSFSR failed to arrive to a common opinion, so Agreement of 1990 was not ratified.

Attempts of the former president of Russia B. Yeltsin to prepare Federal Council for ratification of Agreement of 1990 failed as well. Moreover, the analysis of opinions different fractions shared concerning the agreement indicate that there are no chances for its ratification with a new president V. Putin as well.

Meantime, the USA ratified already Agreement on the 16th of September, 1991, and US Senate approved it with the following vote ratio: 86 pros, 6 cons. The Washington Post wrote then (17.09.91): "To support the agreement, State Department declared that 70 % of the Bering sea area would be in the US jurisdiction and, thus, provide 13 200 square sea miles of space more than if the line was drawn at equal distance from each shore".

Previous membership of State Duma and Federation Council of Russia upon consideration of the possibility to extend temporary application of Agreement of 1990 till June 30, 1997 provided recommendations to president of Russia B.Yeltsin to offer to ratify the agreement. Scared by likely failure of ratification of Agreement, B. Yeltsin did not submit it to the Parliament of Russia.

Moreover, discussions of Agreement of 1990 held in both Upper and Lower Chambers of the Russian Parliament have shown that even if the newly elected President V. Putin submits it for ratification, it will unlikely happen. The evident reason for that are Russia's fishing interests aggrieved for over a decade as a result of signing and temporary application of Agreement.

In this connection, the former president of Russia B. Yeltsin based on the new Federal Law on International Treaties of the Russian Federation was forced to submit proposals to Duma in early 1996 and in May, 1997 on temporary prolongation of operation of Agreement for the period of 6 months in order to try to settle fisheries-related problems negotiating with the US. Indeed, such negotiations with the USA have been held for several years already and they have some, however, weak preconditions to settle down the fisheries conflict. However, as debates in Lower and Upper Chambers of the Russian Parliament indicate fishery issues are just the tip of the iceberg of contradictions. Its unseen part is the loss of certain continental shelf areas by Russia and the handover (although under provisions of compensation in other regions) of 200-mile Exclusive Economic Zone of Russia in the Bering sea to the US jurisdiction. As a result of the latter, the economic zone of Russia in that area at one place got less than 200 miles, whereas the economic zone of the USA became wider than 200 miles. The latter contradicts UN Convention on Maritime Law, in accordance to which the width of an economic zone must not exceed 200 miles.

In general, the discussion, regarding Agreement of 1990, in Russia has become an arena where opinions of different political parties, fractions, movements of the Parliament clash. From one hearing to another these opinions consolidate, seeking to fight in case the agreement is re-submitted for ratification by the president's team.

Since fishermen were the basic opponents on this agreement both during its development and its temporary application, it is crucial to consider practical use of Agreement of 1990 (not ratified by Russia) from "fishermen's perspective" and to analyze its other provisions as well as the very course of negotiations. The main thing is to try and find out if there really are possibilities to resolve "fishermen's problems", given the situation we have now. What are these possibilities if any? And what is their chance to be accepted by Russian and American parties?

 

 

Till 1867, the Bering sea was an "internal" Russian sea, because it was surrounded from all sides by Russian coasts: in the west by Chukotka and Kamchatka, in the east and in the south by Alaska and the Aleutian Islands which belonged to Russia at the moment (Picture 1).

Picture 1. Till the 3rd May, 1867, Alaska and the Aleutian Islands belonged to Russia.

In 1867, during the reign of Alexander II, the areas of Alaska and Aleutian Islands as well as other areas of our North-American colonies were conceded by Russia to the USA forever for a ridiculous sum — US $7,2 million. Virtually, Alexander II sold the areas. That arrangement was formulated by respective Convention of March 18(30), 1867 that was ratified in May, 1867 by Russia and the USA. Convention stated only the concession of North-American colonies by Russia. In this connection, where necessary precise coordinates of the line (to the east of which areas had been conceded) were indicated. Thus, it was exactly shown that that was the point in the Bering Strait at 65 degrees 30 minutes North in its crossing with meridian, then the line followed that meridian, "running straight towards north till it is completely lost in the Arctic Ocean". This corresponds to a little more than 168 degrees West and subsequently, in 1926, the coordinates were determined as the border of Arctic areas of the USSR in eastern Arctic. Meanwhile, no precise coordinates were indicated in the Bering sea except for areas in the strait between the mainland and islands or conceded islands. And even in that case the line between Chukotsky cape and St.Laurence Island, Copper Island and Attu Island was defined as "running at equal distances from both". Unlike the Arctic Ocean, the central part of the Bering sea was only given a general basic direction: "south-westward" without coordinates indicated. (Picture 2).

Picture 2. Till the 3rdAfter the 3rd of May, 1867, Russia conceded Russian North-American colonies for US $7,2 million including Alaska and the Aleutian Islands.

It is necessary to emphasize that under Convention of 1867 Russia conceded to the USA lands and only lands, and at the moment no marine areas were mentioned. The text of Convention on Concession of Alaska proves this as all its clauses speak about lands only. Plus, international law at the time did not have a notion of "200-mile exclusive economic zone". Undoubtedly, Convention of 1867 was one of most serious strategic blunders made by Russian politics of the past. But what's done is done, as they say.

It seemed that Russian modern politics would have made proper conclusions out of that and would not let Alaska syndrome influence, and new mistakes to happen. But they ended up "as always"… Moreover, the chain of mistakes grew longer and longer. In 1976–1977, coastal nations all over the world started to introduce 200-mile fishing zones and then 200-mile exclusive economic zones. The trend reached Far-Eastern northern seas, the Bering sea and the Chukchi sea, where the Soviet Union and the USA set 200-mile zones on the 1st of March, 1977. As a result, the need to conduct delimitation of 200-mile zones between the Soviet Union and the USA appeared for areas of the seas where zones "juxtaposed, overlapped", i.e. where the distance from shores was in general less than 400 miles. As it turned out, such areas were fairly long — approximately 1500 sea miles, therefore, forming one of the most extended fishing borders between two neighbor countries in the world.

The USA offered to apply Convention of 1867 (Convention of 1867 did not exist in the Bering sea but in the Chukchi sea and the Arctic Ocean) as basis to settle issues of delimitating 200-mile fishing zones (at the time (in 1977) only such zones were declared) in the areas where they were juxtaposing and forwarded this proposal to the Soviet Union (Picture 3). Upon lengthy consideration of the proposal by different agencies, national Government headed by L. Brezhnev made a political decision — to agree to it in general. So, in February, 1977 it sent this response to the USA. Plus, on the 24th of February, 1977 at the suit of fishermen the following important announcement was made:

Picture 3. In 1977, the USA proposed to the USSR to use as a basis of delimitation of fishing zones “the line of 1867”, considering it as following a great-circle track. The Soviet Union gave its consent, however, being sure that the line of 1867 was supposed to follow a rhumb-line.

"In connection with coming into force on March 1st this year of American Law on Conservation of Stocks and Fisheries Management and putting into action of Decree of Presidium of Supreme Soviet of the USSR on Temporary Measures for Conservation of Living Resources and Fisheries Regulation in Marine Regions Adjacent to Coasts of the USSR as a result of delimitation of marine areas, conducted under Russian-American Convention of 1867, a marine area within the central area of the Bering sea, bearing the following coordinates, will be included into American fishing zone: 58 degrees 51 minutes North, 178 degrees 50 minutes West, 61 degrees 45 minutes North, 176 degrees 30 minutes West and 60 degrees 00 minutes North 179 degrees 40 minutes West.

In this area fishing fleet of the USSR catches over 150 000 tons of fish including pollock — 100, herring — 20–30, cod — 5, halibut — 4–5, flounder — 3 thousand tons.

In consideration of the above, Soviet party expects that when, issuing a general fish quota for Soviet fishing vessels, American party will take into account the catch volume lost by our vessels in that area".

Thus, in 1977, Soviet political leaders on the grounds that were entirely unclear to broad public, without any negotiations began to give marine areas of the Bering sea to the USA, the areas where our Far-Eastern fishing fleet had been traditionally fishing (Picture 4).

Picture 4. On the 26th of February, 1977 before the negotiations on delimitation were completed, the Soviet Union gave the district (A) with the area of 23,7 thousand square kilometers, having confirmed by this its intention to delimit following a rhumb-line.

The above makes me ask a question: what made experienced Soviet authority and diplomatic agency of that time (I should remind that that was the time of Brezhnev–Kosygin–Gromyko) accept the option which clearly was losing for the Soviet Union, at least in the Bering sea? Were there any alternatives?

Concerning the first question, one can be sure to suppose that such decision was made by national authority to strengthen the marine border of Arctic domains in the Chukchi sea and the Arctic Ocean. The latter allegedly seemed an additional argument within analogous negotiations with Norway on delimitation in the Barents sea and a western sector of the Arctic Ocean conducted for several decades already. Currently upon completion of another decade, we may say that that step was not justified, because the framework of Soveiet-Norwegian and then Russian-Norwegian negotiations have been following a specific "route", given historical baggage in relations between our countries.

As for alternative options of Soviet-American proposals on delimitation – they naturally existed. One of them was to delimit following the middle line. This norm is available in international law and is often applied in suchlike cases. Speaking about protection of our economic interests and our fishing interests in particular, it would be more appropriate to offer another option to the USA, namely to preserve the so called Line of Convention of 1867 in the Chukchi sea and in a eastern sector of the Arctic ocean. Moreover, the very Convention of 1867 set its precise coordinates (in and) within these aquatic areas only.

As for the Bering sea, we should seek to make an agreement on setting the middle line to split 200-mile zones. That was the opinion of Far-Eastern fishermen and the authority of former Ministry of Fisheries of USSR at the time.

However, under pressure of authoritative specialists on international law from Ministry of International Affairs of the USSR, the Communist Party discipline and national discipline American proposals on delimitation were used as basis and fishermen could do anything, but try to nevertheless defend their economic interests on conditions of that political step which was unprofitable for them and for the country.

 

 

Thus, our former chiefs did not even bother to sit down to table to negotiate, and in 1977, they gave to Americans the area that was very important for national fisheries.

But, as noted, the compensation was announced in the volume of 150 000 tons of fish to be provided to us annually. For the first years till 1981, the USA issued fish catch quota to our fishermen to fish in their area in the Bering sea. This fact was perceived by our diplomacy and fisheries agency as compensation for the loss of aquatic area given. Then they stopped to issue quotas in connection with sanctions initiated by the US against Soviet Union due to events in Afghanistan. At the same time, within the process of negotiations it turned out that parties had had different understanding of the route of delimitation line they had drawn. Soviet party thought that the line was supposed to follow a rhumb-line whereas American party thought it was supposed to follow a great-line track (Picture 3). As a result of applying different approaches the disputable district, appeared with area of 15 thousand square miles that was important namely for our fisheries from fishing point of view. American fishermen did not fish within it.

In connection with this and on representations of Ministry of Fisheries of the USSR another agreement on joint fishing operations, the so called "gentlemen agreement" with Americans was reached. Such agreement suited our Far-Eastern fishermen.

However, in subsequent times, namely on the 1st of June, 1990 that agreement was broken too, due to unexpected signing and instant temporary carrying into effect of Agreement of 1990. It became the result of Shevardnadze-Bekker agreements of June, 1990, during Gorbachev's mission to Washington. (Picture 5).

Picture 5. In 1990, when final agreement with the USA was formalized A-district (23,7 thousand square kilometers) transferred in 1977. B-district (7,7 thousand square kilometers) of 200-mile zone of the USSR. Economic zone of the USA in that district exceeded the 200 mile limit set by international law C — district (46,3 thousand square kilometers) in central part (enclave) of the Bering sea; D — the Soviet Union received only 4,6 thousand square kilometers in the central part of the Bering sea.

Moreover, according to the final text version of that very Agreement of 1990, one more area was conceded to the USA. That was the part of our 200-mile zone already. As a result, the economic zone of the USA in some places of the area became 50 miles larger than the limit set by international law. Our zone got smaller by the same size. Far-Eastern fishermen lost again. Some individuals who worked as Soviet diplomats and participated in negotiations on these issues affirm that we were given proper compensation in other regions for that, including the Chukchi sea (Pictures 5 and 6).

It is possible that it may be true under diplomatic standards, but there is no fish in those regions and nobody fishes there.

Plus, as for the Chukchi sea, we were given what we already had under Convention of 1867 since, again, — the line had been set there back in 1867, as following the meridian 168 degrees West. We needed just to defend it.

According to Agreement of 1990, American party received also significant advantages on areas of continental shelf within the open (enclave) central part of the Bering sea lying beyond limits of 200-mile zones of Russia and the USA. That total area of those areas is over 46 000 square kilometers, while the district obtained by Russia was approximately 5000 square kilometers only. Again diplomats tell us that this is a deep water area where availability of any resources is doubtful, etc. If this statement was true, we should all the more have divided the area on a fair basis: 50 to 50 for Russia and the USA. Evidently, here we have some hopes for future.

Let me remind that some time ago, Alaska was also considered as "refrigerator with ice". Today, the amount of 7,2 million dollars (Czarist Russia conceded Alaska for) is equal to one day catch of salmon alone in coastal waters of Alaska. So, situation of Russia with respect to continental shelf in central part of the Bering sea does not look equitable and equal to respective areas the USA have received.

Picture 6. Districts of marine spaces received by the USA and the USSR upon delimitation conducted under Agreement.

line of 1990 as compared to use of the middle line; delimitation line under Agreement of 1990 middle line; districts of economic zone the USSR received; districts of economic zone the USA received; district of sea bottom beyond the zones the USA received.

I will forgo further analysis of negotiation process on development of Agreement of 1990 here, and I would like to note that much is unclear in the very text of it, including such notion as "marine spaces". What is this? There is no such term in international law as it had not existed in negotiation practice of the Soviet Union and Russia till Agreement of 1990 was concluded. The UN Convention on Maritime Law of 1982 (by the way, ratified by the Parliament of Russia) defines only the following terms: "internal waters", "territorial waters", "exclusive economic zones", and "continental shelf". There are no any "marine spaces" in the Convention.

The very title of Agreement of 1990 attracts attention, since in Russian and English it has quite significant differences. They are not equal.

For example, Russian text speaks about "delimitation of marine spaces", while English one speaks about "marine border". What's this, inexact translation, or intention, or again some unknown arrangements made solely by heads of delegations which took part in negotiations? Questions, questions! Hearings held in committees of Duma failed to find all answers to them.

Concerning fisheries, the result in figures looks as follows: for the period from 1981 till 2000 Russian fishermen lost fishing of over 20 000 square kilometers where they could harvest annually no less than 150 000 tons of fish. Total result: for 19 years the losses have been approximately 2,8 million tons. This is equal to over 1,4 billion US dollars.

Besides, Russian fishermen have lost a fishing district of their 200-mile zone with the area of over 7000 square kilometers as well as some deep water fishing areas on continental shelf in central area of the Bering sea, where in future stocks of assidenous species of living resources will likely be found (crabs, mollusks etc.). Indeed, the conclusion we have arrived to is that Gorbachev-Shevardnadze having blessed and signed the Agreement and put it into temporary action, probably, decided to contribute to world human values. They contributed our piece of sea full of fish, and they granted it to Americans.

The role played by our then vaunted diplomatic service in that truly unprecedented surrender of Russia's sea areas is not clear too.

 

 

What to do? This traditional Russian question is raised, concerning Agreement of 1990 as well. First of all, it is necessary to create independent authoritative Parliament-based commission, consisting of specialists-experts. This commission must conduct additional thorough analysis of all provisions of Agreement of 1990 and answer the main question: does it really suit long-term national economic and political interests of Russia? If it does, then how can one minimize its fisheries losses for Russia?

It is possible to involve well known foreign international specialists on delimitation issues in this work. Besides, to my mind, the commission should not include the specialists which participated in negotiation process before, in order to avoid their influence of objectivity of conclusions. The conclusions provided by the commission must be determinative for a final decision on ratification of Agreement of 1990 to be made by the Parliament of Russia.

So far, there are no fervid advocators of immediate ratification of Agreement of 1990 in the Russian Parliament. Its drawbacks are damaging Russia too obviously. In the first place they concern the domain of national economic interests and primarily fisheries interests in both past and future.

Losses of fisheries (150 000 tons annually) can be compensated to Russian party only in case American party demonstrates understanding, or, as they used to say in ancient times, only if good will is present. The easiest way out is to conclude an agreement with the USA and obtain permission for Russian vessels to fish annually up to 150 000 tons in the area, which was conceded to the US in February, 1977. Naturally, with American fish stocks conservation measures met. Or to agree that in that area joint Russian-American fishing companies will fish. There can be other options, including compensatory ones. I think, that co-management of fish stocks within entire area of the Bering sea is most prospective.

Another issue that claims consideration is the one on full restoration of 200-mile Russian economic zone in the part where it was decreased by Agreement of 1990 with American 200-mile zone immediately increased to the width of over 200 miles.

Regarding the continental shelf in the central part of the Bering sea, it is desired that special new joint Russian-American consultations on this issue were conducted. It is likely that parties could have agreed to conduct co-prospecting, co-development, and co-exploitation of living resources of that area.

Some specialists on international affairs predict that given poor economic and political state of Russia Americans will not make any additional agreements on Agreement of 1990, referring to the fact that leaders of former Soviet Union signed it, moreover, they agreed to begin temporary operation of Agreement of 1990. Russia is the legal heir of agreements concluded by the Soviet Union, therefore — "come on, fulfill obligations you have accepted". I am not of the same opinion. The United States like Russia are no less concerned in justice of agreements on delimitation of territorial sea, economic zone, and continental shelf in the Bering sea, the Chukchi sea, and the Arctic ocean over 1500 miles length. They no less want them to accord with international law and meet national interests of parties. An agreement, under which one party feels unfairly aggrieved, will some time inevitably create a conflict situation like a delayed-action mine. Only joint Russian-American efforts can avoid this.

From the practical point of view, one should first of all settling fishing issues in the Bering sea. In doing this, one should remember the following:

— almost entire Bering sea is covered by 200-mile zones of Russia and the USA, except for a small area in its enclave central part;

— marine living resources of the Bering sea are a unified ecological complex;

— management, conservation, rational use of marine living resources of the Bering sea and fisheries enforcement must be carried out by Russia and the USA with coordinated efforts.

In this connection, it would be expedient to develop and sign special inter-governmental Russian-American Agreement on Fisheries in the Bering sea, which along with principal proposals stated above envisaged mechanisms of its implementation too. It is possible to create a mixed Russian-American Commission on management, conservation of marine living resources of the Bering sea, and fisheries enforcement.

Only coordinated efforts of Russian and the USA can lead Agreement of 1990 out of the blind alley and preserve marine living resources of the Bering sea for present and future generations.