Behind US-Canada Fishing Flap

CAN Icelandic scallops swim? Or do the shellfish remain anchored to the seabed?

These questions are not academic: The outcome of a testy fishing dispute between Canada and the United States might hinge on the answers. Canada had authority to seize two Massachusetts scallop boats on the high seas last month only if Iceland scallops are ``sedentary'' - immobile - as defined by international law.

On July 26 armed agents of Canada's Department of Fisheries and Oceans boarded the two New Bedford, Mass., boats that were dragging for Icelandic scallops in the Grand Banks off New Foundland. Canadian ships then escorted the scallopers to the port of St. John's, where the fishing boats were detained.

Canada charges that the boats' captains violated its Coastal Fisheries Protection Act by fishing without a Canadian license. Although the Warrior and the Alpha & Omega II were operating in the so-called nose of the Grand Banks, outside Canada's 200-mile maritime boundary, Canada asserts its right to regulate scallop fishing there under an exception for sedentary species.

Last week the boat captains were formally charged in St. John's. If convicted in a trial this fall, they could face stiff fines.

The US State Department, which contends that the scallopers violated no Canadian or international laws, demanded that the boats be released without fines or other penalties, says a spokesman for the department's Bureau of European and Canadian Affairs, who asked not to be named. Massachusetts' two US senators, Democrats Edward Kennedy and John Kerry, have called for a US ban on Canadian fish imports if the charges are not dropped and the vessels released. Thursday Canada lowered the bond that must be posted for the boats to be released. The owners each posted a $100,000 bond Friday and the ships headed for home.

Canada's authority to regulate sedentary marine species on the continental shelf outside its 200-mile zone is based on the United Nations Law of the Sea Convention. Article 77 of the convention defines sedentary species as those which ``at the harvestable stage either are immobile on or under the seabed or are unable to move except in constant contact with the seabed or subsoil.''

The Canadian fisheries protection law ``tracks the wording'' of the international pact, says Richard Hegan, an official with Canada's Department of Fisheries and Oceans. He adds: ``Icelandic scallops fix to the ocean bottom. Some people confuse them with sea scallops, which are more mobile.''

But the State Department spokesman counters that US government ``fisheries officials and scientists have concluded that Icelandic scallops are not sedentary, and even some Canadian scientists agree.'' The issue needs eventual resolution in government-to-government talks, but for now it appears that the mobility question will be answered in a Canadian court. US officials say this is the wrong forum. ``It's always a complicating factor in international relations when disputes get into countries' legal systems,'' says Brian Hallman, an official in the State Department's Bureau of Oceans, Environment, and Science.

But Canada's Mr. Hegan says his government has an obligation to prosecute the case. ``The boat captains broke the law, so the case is properly in court. Canada wants to make sure its policy is clear, so it is enforcing its law.''

Canada's seizure of the scallopers may be part of a broader get-tough policy on fishing rights. Concerned about overfishing of cod, flounder, and other ground fish off its Atlantic coast, Canada recently claimed regulatory authority over some fishing grounds beyond the 200-mile boundary. It closed these areas to its own fishermen and fishing boats from other nations. Members of the Northwest Atlantic Fisheries Organization, including Japan, Russia, and most European nations, are observing the moratorium. The US, which is not a member of the organization, is ignoring the ban, however, angering Canadian officials.

Were the boat seizures a shot across the US's bow?

Hegan insists that Canada's enforcement action against the scallopers is unrelated to the moratorium dispute: ``The matters fall under completely different laws. There is no linkage.''

The State Department's Mr. Hallman observes, however, that ``Canada is being more aggressive in asserting custodial jurisdiction'' over various fishing stocks outside its maritime borders.

Officials of both countries stress that fishing disputes ``won't get out of hand, and won't be detrimental to the overall strong relationship between the US and Canada,'' in Hallman's words.