International negotiations paralyzed by domestic politics: two-level game theory and the problem of the Pacific Salmon Commission.
During the summer of 1994 the fleets were deployed.(1) The press on both sides printed inflammatory stories.(2) Politicians called for armed intervention.(3) The situation continued to deteriorate in 1995.(4) To an outside observer it might appear as if the two parties involved were preparing for war. The parties are not historical antagonists, however, but rather friendly neighbors who share the longest undefended border in the world. The United States and Canada, long-time allies and trading partners, are involved in a war of words, and the dispute was caused by nothing more than fish.
The current struggles are a continuation of long-standing unresolved issues between the United States and Canada primarily concerned with the allocation of the catch from the economically and socially important salmon fisheries of the Pacific Ocean. The importance of effectively managing these resources stems in large measure from the monetary value of the fisheries. In 1986,. the fishers of both countries landed approximately 177 million Pacific salmon weighing about 900 million pounds, worth an estimated $682.5 million (U.S. dollars) to the commercial fishers.(5) A calculation of the fisheries' net value to the economies of the two regions yields a value between $1.37 and $2.05 billion (U.S. dollars).(6) In addition to the commercial value of salmon, there are significant recreational and cultural values attached to the fisheries.(7) With the economic health of an entire region involved, it is easy to understand why such passion attends to the management of this resource.
What is a bit surprising are the difficulties that these two neighbors continue to endure in managing this resource. From early in the twentieth century, both countries realized that the joint management of these resources was critical to the fisheries' continued health. It is a frustrating fact of life for those charged with the management of Pacific salmon that the fisheries of the United States and Canada are inexorably intertwined. Salmon do not respect international boundaries.(8) Besides the obvious annoyance this can cause politicians, it poses a serious threat to the ability of a coastal state to manage its salmon stocks. Over-fishing by foreign fleets may create an incentive for local fishers to over-utilize the resource and reduce the incentive to undertake efforts designed to protect and enhance the resource. Over-fishing can result in serious, if not fatal, injury to the fishery.(9) The international community has recognized this problem and attempted to deal with it by allowing coastal states to expand their jurisdictions over fish stocks. The creation of the Exclusive Economic Zone (EEZ), a two-hundred-mile buffer between the coastal states and the high seas, transformed most ocean fisheries from open-access common pool resources to stocks under the jurisdiction of coastal states.(10) Attributing property rights through the EEZ did not, however, resolve all fishery problems. In the case of anadromous stocks that migrate across EEZ boundaries, the issue of interception of intermingled stocks, the capture of salmon of one country by the fishing fleets of another, has remained problematic.(11)
In the case of the Pacific salmon fisheries of the United States and Canada, it is impossible for the two countries to exploit their salmon resources without affecting the stocks of the other. Pacific salmon generally migrate northward upon entering the ocean and return by a southerly route to their rivers of origin to spawn. As a result of this migratory pattern, salmon runs from the northwestern continental United States, including the endangered runs from the Columbia and Snake Rivers, are intercepted in the fisheries off the coast of British Columbia. Salmon from British Columbian rivers are also taken in the fisheries of southeastern Alaska. As a result of this pattern, Alaska enjoys a significant advantage while Washington and Oregon are at a geographic disadvantage.(12)
The problem created by the interception of salmon stocks originating in one country by the fisheries of another has plagued the relationship between the United States and Canada for several decades. The current struggles are merely a continuation of long-fought battles over the allocation of a valuable resource. While attempts have been made to resolve the international issue, the differential health of the salmon stocks within the United States, one of the root causes of the international debate, has received little attention. This lack of attention has paralyzed international efforts to allocate the salmon.(13) This paper examines the historical development of the Pacific Salmon Treaty(14) in Part II and analyzes the effects of domestic constraints on international negotiations in Part III. Part III also applies the lessons gleaned from this inquiry to a critique of several potential resolutions to the current domestic impasse. After highlighting the weaknesses of several of these proposed solutions, Part IV advances a proposal to ameliorate the domestic conflict, opening the international negotiations to solutions acceptable to all interested domestic parties.(15)
II. HISTORICAL BACKROUND OF THE PACIFIC SALMON TREATY
Before turning to the current difficulties between the United States and Canada, it is important to look at the history of the joint management efforts of these countries. The roots of the current struggles, both domestic and international, are tied up in the history of these management efforts.
A. The Development of the Fraser River Convention
As is often the case in the management of joint resources, it was a near disaster that first brought the United States and Canada together and signaled the interdependence of the fishing industries of the two countries. The Fraser River runs through British Columbia and drains into Puget Sound. The River has remained a very productive system, particularly for salmon,(16) and its productivity is at least partially attributable to the management efforts that followed a series of accidents resulting from poor planning in the early 1900s. In 1913, and then again in 1914, the Fraser was almost completely blocked off by the collapse of sheer canyon walls due to blasting to create a railroad right-of-way.(17) The harvest of salmon for both the United States and Canada dropped dramatically as a result of the blockage.(18) These events, and the resulting economic hardships, prompted a series of negotiations that resulted in the adoption of the 1930 United States-Canada Convention for the Protection, Preservation, and Extension of the Sockeye Salmon Fishery in the Fraser River System (Fraser River Convention).(19) While the Convention was narrowly drafted, it signalled the beginning of joint management of salmon fisheries.(20) These events, however, also laid the groundwork for one of the most difficult issues facing the fisheries today, the question of how to reduce interceptions of the other country's salmon stocks.(21)
The narrowness of the Fraser River Convention led to one of the first salmon skirmishes between the United States and Canada in the 1950s. This particular battle was waged because of increasing U.S. interceptions of another Fraser River salmon stock.(22) In addition to sockeye salmon covered in the Fraser River Convention, the Fraser River system produces a valuable run of pink salmon.(23) In 1955 and 1956, Canadian fishers complained bitterly to the Canadian Minister of Fisheries that the United States fishers were catching large quantities of Fraser River pink salmon. In response, the Minister suggested that the Canadians "wipe their noses, pull up their socks and catch a comparable number of Puget Sound [U.S.] pink salmon."(24) The Fraser River Convention was quickly amended in 1957 to include pink salmon.(25)
B. Early Multilateral Salmon Treaties
In addition to the bilateral negotiations between the United States and Canada, the international situation developed further in 1952, when the three primary salmon fishing nations of the Pacific, the United States, Canada, and Japan, entered into a treaty to regulate all high seas fishing in the North Pacific.(26) In relevant part, this treaty required Japan to stop all high seas salmon fishing in the eastern half of the Pacific, while requiring the United States and Canada to manage and regulate their respective salmon fisheries cooperatively.(27) This international agreement was one of the first reached between the fishing powers of the high seas and was a precursor to the first United Nations attempts to regulate and conserve the resources of the high sea.(28) The treaty was an aggressive and relatively successful attempt by the United States and Canada to exclude Japan from the rich salmon fisheries of North America.
There was a problem, however, which pushed the United States and Canada toward a comprehensive agreement on Pacific salmon. In effect, the United States and Canada "painted themselves into a corner" by arguing against interceptions.(29) Under the Fraser River Convention, however, the United States intercepted Canadian salmon and vise-versa. In the agreement with Japan, therefore, the United States and Canada were arguing for a principle that they did not apply to themselves.(30) While post-war Japan was hardly in a position to question this hypocrisy, other fishing nations could and, in all likelihood, would have done so.(31) The further growth of United States-Canadian cooperation on salmon fishery management was "based on a common fear that if they did not cooperate, the way would be laid open for distant-water countries to enter the North American salmon fisheries."(32) The interception problem continued to lurk in the background throughout the next several decades as both countries expanded their fishery jurisdictions.(33)
C. The Negotiation of the Pacific Salmon Treaty
The current chapter in salmon management began in the early 1970s when the United States and Canada entered into negotiations for a more comprehensive treaty covering the Pacific salmon fisheries. On April 24, 1970, the two countries agreed to a bilateral, reciprocal fishing agreement that expanded negotiations to a variety of East and West coast fisheries.(34) This agreement called for consultations within one year "regarding all matters of mutual concern related to the fisheries for Pacific salmon."(35) The resulting negotiations consumed more than a decade.
The drive for a new treaty to augment the Fraser River Convention was the result of declining salmon stocks along the entire Pacific shoreline of North America, the desire of both countries to reap the benefits of aggressive hatchery enhancement programs, and the fear that without an agreement foreign fishing fleets could enter the Pacific salmon fisheries.(36) The temporary solution reached through the Agreements on Reciprocal Fishing Privileges set the stage for the more complex and occasionally acrimonious negotiations of the following decade.(37) The negotiations were further complicated in 1977 by the development of fishery management plans under the Magnuson Fishery Conservation and Management Act of 1976 (MFCMA).(38) The MFCMA and the salmon fishery plans promulgated under it launched another salvo in the struggles over salmon. Canada voiced its strong objection to the MFCMA fishery management plan for the harvest of salmon off the coast of Washington, claiming that it would upset the reciprocal nature of the salmon fisheries.(39) Canada acted by closing certain waters off Vancouver Island to U.S. fishers.(40) Predictably, the situation escalated, and by 1979, after a series of increasingly bitter exchanges, both countries completely closed their waters to the salmon fishers of the other.(41)
It was in this hostile and desperate atmosphere that the negotiations for a comprehensive treaty were undertaken. The issues each country faced continued to evolve as the talks proceeded. When negotiations began, the talks had been primarily focused on issues of bilateral allocation of the Pacific salmon resource.(42) At the time, salmon harvests appeared stable and the countries seemed content to reach an agreement that would limit and ultimately reduce interceptions.(43)
In the mid-1970s, the issue of artificial salmon enhancement entered into the negotiations. The issue gained initial prominence due to the salmon enhancement activities of the Washington State Department of Fisheries, undertaken to comply with the now famous "Boldt Decision."(44) This federal court decision guaranteed to the Northwest Treaty Indians(45) up to fifty percent of the salmon available for harvest in the Northwest.(46) At the same time, both Canadian and U.S. salmon managers were preparing aggressive enhancement programs and hatcheries on the Fraser River system and in Washington and Oregon, which promised to sustain and potentially increase the salmon production of those fisheries.(47) These enhancement efforts coincided with the growing national sentiment among Canadian fishers seeking to reduce the U.S. take of Fraser River sockeye and pink salmon.(48) As a result, by the mid-1970s, both countries became increasingly focused on attempts to reduce and, if possible, eliminate interceptions.(49)
The domestic constituents of the two countries were split on the desirability of reducing interceptions, particularly in the United States. The roots of many of the current difficulties can be seen in the divisions that developed within the United States during this period. Under the 1930 Fraser River Convention, the United States was allocated fifty percent of Fraser River sockeye and pink salmon, and U.S. fishers in Puget Sound were unwilling to support any agreement that reduced that amount, particularly because Canadian enhancement efforts promised significant gains.(50) Additionally, Alaskan fishers were heavily dependent on chinook from the Pacific Northwest and British Columbia.(51) The situation in Canada was similar but less pronounced. As a result, the negotiations through the early 1980s were hampered by domestic infighting and the inability of negotiators to develop a comprehensive scheme to resolve the interception issue.(52)
Once again, a crisis broke the stalemate and led to renewed efforts by both the United States and Canada. In the early 1980s, the numbers of chinook salmon returning to their rivers' origin fell alarmingly.(53) It was at this point that the current domestic battle lines within the United States were drawn. In 1979, the Treaty Indian tribes of the Northwest filed suit against the Secretary of Commerce alleging that the regulations implementing the 1979 amendments to the Fishery Management Plan for the Commercial and Recreational Salmon Fishery off the Coasts of Washington, Oregon and California did not provide for the return of enough chinook to fulfill their treaty rights.(54) When the Indian tribes added the State of Alaska to the suit, Alaska responded by protecting Alaska-origin chinook and directing fishing efforts at increasing interceptions of chinook bound for Canada, Washington, and Oregon.(55) The States of Oregon and Washington were thereby forced into an alliance with the Treaty Indians to pressure the North Pacific Fishery Management Council, the body with authority over salmon harvest in federal waters off Alaska,(56) to reduce the chinook harvest.(57)
Under increasing pressure due to declining chinook populations, and with a continued mutual desire to limit interceptions, the negotiators for the United States and Canada "drew progressively closer to agreement."(58) In late 1982, representatives from each country initialed a draft treaty establishing salmon allocation and conservation principles, a bilateral regulatory forum, and immediate limits on Canadian and Alaskan chinook harvests.(59) The draft treaty was strongly supported by Washington and Oregon (except for fishers dependent upon Fraser River stocks) and Canada.(60) Pressure from Alaskan fishers, however, convinced the Alaskan congressional delegation of Senators Ted Stevens (R) and Frank Murkowski (R) and Representative Don Young (R) to bottle up the draft agreement in the State Department. As a result, the draft never made it to U.S. Senate floor for consideration.(61)
The split that developed between the State of Alaska and the States of Oregon and Washington, which were allied with the Treaty Indians, brought the negotiations to a screeching halt. Needless to say, the Canadians were outraged and issued dire predictions of an impending "fish war."(62) The prospects for a Pacific salmon treaty seemed dismal when the talks collapsed in January 1984, as a result of hardline bargaining by the United States.(63)
The impasse finally broke when the Reagan Administration reopened negotiations, sensing the broad-based political support for a treaty in the Pacific Northwest and seeing a potential avenue for reducing tensions with Canada.(64) All that was missing was Alaska's support. The threat of litigation by the Northwest Treaty Indians finally brought the Alaskans on board.(65) On March 18, 1985, the Pacific Salmon Treaty entered into force with the exchange of instruments of ratification between the United States and Canada.(66)
The treaty establishes the Pacific Salmon Commission, which consists of a U.S. and Canadian section and is charged with implementing the provisions of the Treaty.(67) The treaty's substance is based upon two principles: 1) avoid over-fishing while providing for optimum production and 2) ensure that each party receives benefits equal to the production of salmon originating in its waters.68 In achieving these principles, both countries recognized the desirability in most instances of reducing interceptions and avoiding undue disruption of existing fisheries.(69)
The United States and Canada were unable to resolve the issue of ensuring that each party would receive benefits equal to the production of salmon originating within its waters. This issue has plagued the relationship between the United States and Canada for at least two decades and is the root cause of the domestic struggles concerning salmon within the United States. The organizational structure resulting from the Treaty, as well as the negotiations that led up to its adoption, has exacerbated the conflicts between the domestic interests by allowing single domestic interests to hold the entire process hostage to their position.(70) As a result, the treaty has failed to reach a number of its goals, and, as the recent conflicts demonstrate, the ability of the United States and Canada to agree on future management plans may have been compromised.
III. DOMESTIC POLITICS AND THE PACIFIC SALMON TREATY
The book has hardly been closed on the Pacific Salmon Treaty,(71) given the understanding by both the United States and Canada that the salmon resources of the Pacific are matters of "common concern." However, the current conflict yields important lessons, both for future negotiations between the two countries and for other international resource management issues. International agreements, even bilateral agreements between historically friendly countries, depend on several key factors for their ultimate success--some of which have, until recently, received little scholarly attention. One of the most striking factors is the failure to examine the interaction between domestic politics and international negotiations and agreements. As can be seen in the above discussion of the history leading up to the adoption of the Pacific Salmon Treaty, domestic politics can play a major role in international negotiations. While it is intuitively obvious that internal politics have an effect on international agreements, little has been done to explore the relationship.(72) Recently this has begun to change. As some commentators put it, "if there is one key variable accounting for policy change, it is the degree of domestic environmentalist pressure in major industrialized democracies, not the decision-making rules of the relevant international institution."(73)
In the case of the Pacific Salmon Treaty, the domestic struggles within the United States have so paralyzed the Pacific Salmon Commission that most of the Treaty's management scheme is in disarray, and Canada has resorted to arguably illegal actions to get the United States back to the bargaining table.(74) The design of the U.S. Section to the Pacific Salmon Commission, and the chaos in managing Pacific salmon fisheries that resulted, can be significantly remedied, facilitating more productive operation of the Treaty.(75) In addition, the solutions to this impasse will yield insight into the role of domestic politics within international organizations, and the mistakes that were made can serve as lessons for the future design of international organizations.
A. Theoretical Considerations
Before venturing into the Pacific Salmon Commission and the internal struggles of the U.S. section, it is necessary to delve into some of the theoretical considerations concerning the role of domestic politics in the functioning of international organizations. There are two reasons for viewing the problems facing the U.S. section from the framework of the current scholarly models on multi-tiered negotiations. First, this framework allows a comprehensive analysis of the potential results of several proposed solutions to the current impasse within the Pacific Salmon Commission. Second, this framework facilitates a general application of the lessons learned from this experience to other international negotiations.
A useful model for analyzing the effect of domestic politics on the operation of international organizations is the two-level game.(76) At the first level are the negotiations within the international organization. While early theorists viewed these negotiations as simple dilemma games, in which the state actors were seen as unitary, rational actors, recent advances have challenged this assumption.(77) In analyzing case studies of various international crises,(78) Glenn Snyder and Paul Diesing found that in nearly half of the situations, the top decision-makers were not unified.(79) The study concluded that the prediction of international outcomes is significantly improved by understanding the internal bargaining.(80) Therefore, the second level of the process, the domestic political considerations, is critical to understanding the outcome of international negotiations.(81)
Robert Putnam has taken this concept of two-level games and offered a model for understanding the implications of domestic politics on international negotiations. In this model, the range of agreements for Level I, the international agreements, that are acceptable to a majority at Level II, the domestic constituency, constitutes the "win-set" for that particular country.(82) By viewing the international negotiations from the perspective of one country through the lens of win-sets, it is possible to estimate the impact of domestic politics on the potential success of the international stage of the game. Putnam advances two important hypotheses from this model:
Hypothesis 1: Larger "win-sets" make Level I agreement more likely and
conversely, the smaller the "win-set" the more likely the negotiations break
Hypothesis 2: The relative size of the Level II "win-sets" will affect the
distribution of the joint gains at Level I. Stated differently, a small
"win-set" can be a bargaining advantage.(83)
By definition, any successful agreement on the international level must fall within the win-set of Level II. It follows, therefore, that the larger the win-sets, the more likely that there will be overlap at the international level.(84) As for Hypothesis 2, the larger the win-set, the more likely the Level I negotiator can be "pushed around" by negotiators from other countries. As Thomas Schelling noted:
The power of the negotiator often rests on a manifest inability to make
concessions and meet demands. . . . When the United States Government
negotiates with other governments, . . . if the executive branch negotiates
under legislative authority, with its position constrained by law, . . . then
the executive branch has a firm position that is visible to its negotiating
partners. . . . [Of course, strategies such as this] run the risk of
establishing an immovable position that goes beyond the ability of the
other to concede, and thereby provoke the likelihood of stalemate or
The relative size of the win-sets, therefore, may allow a negotiator to manipulate the Level I agreement to her advantage. This is true regardless of the control exerted by the negotiator on the formation of the win-set.(86)
Further scholarly work has expanded this model in two important ways. First, Keisuke Iida has recently injected the effect of uncertainty into the mix, challenging some of Putnam's conclusions.(87) In a world of complete information, the size of the win-sets is irrelevant. Contrary to Putnam's claim that the smaller the win-sets, the more likely the negotiations will fail, if both sides have complete information, they will enter into negotiations only when there is an intersection between their respective win-sets and agreement will occur at the intersection.(88) The effect of win-sets is therefore only useful in models that account for incomplete information. Iida summarizes the effects of uncertainty in relation to Putnam's hypotheses by suggesting that incomplete information about the domestic political environment can prevent the ratification of international agreements.(89) Put another way, international agreements will fail to be ratified when either there is involuntary defection or no intersection of win-sets exists, both situations being precipitated by an incomplete understanding of the domestic political situation.(90) Strategic behavior at the international level can still imperil an agreement, but, when looking at the effects of domestic inputs on the international system, incomplete information of the domestic situation can be fatal to international agreement. Putnam's hypotheses are correct only to the extent that they describe what happens within international negotiations where there is some uncertainty as to the size of the parties' win-sets, particularly those uncertainties precipitated by an incomplete understanding of the domestic political situation.(91)
Another important expansion of Putnam's analysis is the interaction between the international process and the formation of domestic coalitions. Of particular interest to the discussion at hand is the effect of a veto on the formation of majority domestic coalitions and the strategic use of internal side-payments. The existence of a domestic group with veto power significantly affects the international agreement process by increasing the expense of forming a majority domestic coalition.(92) Seen from the perspective of a state's win-set, the existence of a veto essentially limits the win-set to the range of possibilities acceptable to the group with the veto. At the international level, it is no longer possible for the foreign government to seek out a solution that appeals to the least costly (from that government's perspective) majority coalition within the other state's domestic arena.(93) The foreign state must include the group with the veto in the majority coalition, possibly at great expense.(94)
The veto also modifies the effect of relative domestic political power on the ratification process. In the most simple model of the domestic ratification process, if the international agreement is within the range of acceptable outcomes to a majority within the state, the agreement falls within the win-set and will be ratified. The existence of a veto, as was already mentioned, limits the win-set to the range acceptable to the group with the veto. This is not altered by the political power of that group. A change in the relative political power among domestic groups does not, therefore, necessarily change the composition of the win-set at the international level.(95)
B. Graphical Representation of Theoretical Arguments
The proceeding discussion is best summarized through the use of graphical representations. For purposes of evaluating the consequence of internal domestic division, not necessarily with the added effect of vetoes, assume a negotiation between two countries A and B over two issues X and Y. It is important to remember that the negotiation of the two issues reflects the dichotomous nature of international negotiations. For instance, X might be the number of intercepted salmon allocated to Canada, Y might be the number of intercepted salmon allocated to the United States. In any event, A prefers a higher X and a lower Y, thus maximizing the benefit to A. The opposite is true for B, who prefers a lower X and a higher Y. Figure 1 depicts the interests of A and B in issue space, if they are both considered unitary actors.(96) Within the issue space, both A and B have several "indifference curves" where combinations of X and Y are of equal utility.(97) Each party faces the same alternative to a negotiated agreement, denoted the "no agreement outcome." This is the point where X and Y are determined by the actions of the parties without any negotiation. Each party, therefore, has a "reservation curve" defined by the alternative to negotiation and the shape of their respective indifference curves. Neither party will accept any combination of X and Y that gives it less value than the "no agreement outcome." Combinations of X and Y that are equivalent to or improvements on this "no agreement outcome" for both parties define the bargaining set.(98)
Figure 2 provides an alternative way to view the bargaining set for the two parties. The origin represents the no agreement alternative and, when expressed in value space, the contract curve translates into an efficient frontier that defines the limit of joint gains to the parties. The efficient frontier is commonly referred to as the Pareto-optimal frontier. The Pareto-optimal frontier defines the set of possible outcomes for which there is no other outcome that is strictly preferred by one player that is at least as good for the other.(99) Of particular interest is the Nash solution, which is the point on the efficient frontier where the two parties' normalized value score is greatest. In other words, the Nash solution is the efficient
outcome that tends toward equitable division.(100) For purposes of this depiction, only points in the northeast quadrant are improvements on the no agreement outcome and are therefore acceptable to both parties.
Now assume that A is not a unitary actor, but rather is composed of factions A1 and A2, both of which have veto power in A's internal negotiations. Both factions will be affected by the same outcome of the negotiations, but they differ in their relative valuation of X and Y. To illustrate the effects of internal conflict, it is necessary to look at two possible configurations. Figures 3 and 4 detail a situation where there is high internal conflict. Figures 5 and 6 detail a possible configuration where there is internal conflict, but it is less extreme. In both cases, part of the bargaining set is essentially blocked by A1, with the amount of the bargaining set being lost increasing as the internal conflict increases.(101)
The cooperative outcomes of the two situations are indeterminate, but the location of the bargaining sets has implications for both the allocation of gains between A and B and the efficiency of the final outcome.(102) The constraints placed on the negotiations between A and B by A1 ensure that the allocation of joint gains, if any are realized, will favor A.(103) The distributional advantage to A may, however, be outweighed by losses in efficiency. Figure 4 demonstrates the problem. Because of the veto held by A1, all of the original efficient frontier is precluded. The new, constrained Pareto frontier consists entirely of points that could be improved upon for both A and B in the absence of the constraint imposed by A1's veto.(104) If it is assumed that the outcome of the negotiation will be the Nash solution,(105) the constrained solution in Figure 4 is Pareto inferior to the unconstrained solution.(106)
In the lower internal conflict case, internal division may affect the allocation of gains without affecting efficiency.(107) This is the situation in Figure 6, where the constrained Nash solution is still on the efficient frontier of the unconstrained contract curve. The new, constrained Pareto frontier is almost certainly preferable to the original frontier to A. If the Nash solution is again assumed, the constrained solution is better for A than the unconstrained solution. A's gain, however, is B's loss.(108)
Altogether, Figures 3-6 help to represent graphically how domestic political constraints may help a divided party claim greater value in the external bargain.(109) the constraints are severe, however, they may reduce the efficiency of the external bargain, perhaps reducing it to the no agreement outcome. As Mayer concludes,
domestic differences can work either to a nation's advantage or disadvantage
in international negotiation. The net effect depends on the configuration of
domestic factional interests, their power in internal negotiations, and on
the nature of the external bargain.... [W]hen parties need flexibility to
realize joint gains, restrictive factional constraints are likely to be more
costly than helpful.(109)
This analytical framework also supports a valuable analysis of one technique common to negotiations. Side-payments are frequently used by parties to a negotiation to reduce the opposition to a particular outcome by a faction within the negotiations. Typically taking the form of "link ages,"(110) side-payments can open sections of the bargaining set previously closed off.(111) The use of internal side-payments is not, however, without cost. Side-payments tend to be lumpy, difficult to properly identify, and occasionally yield unintended and negative results.(112) Within the world of incomplete information, however, the use of internal side-payments may be reasonable in light of the gains realized internationally.(113) By offering a side-payment in the form of an issue linkage to an internal party, the international negotiator may be successful in expanding the bargaining set without sacrificing the inherent advantage of domestic constraints.(114) If the international negotiator is limited in her knowledge of the internal side-payments available to her counter-part, then the domestic constraints can still work to garner greater value than that available to the unconstrained unitary actor.(115)
The proceeding discussion allows for a new understanding of the hypotheses originally proffered by Putnam. While the size of the win-sets is important for the development of the international agreements, and small win-sets can at times be an advantage, the nature of the domestic constraints placed on the international agreement is critical to understanding the bargaining outcome.(116) No categorical statements can be made with regard to the effects of domestic politics on the international agreement, but there are several key factors that can be helpful in predicting the outcome of international negotiations.
The first factor is the effect of internal domestic conflict on the bargaining set at the international level. Consistent with Putnam's claim that the smaller the win-set the greater the bargaining advantage, there are gains to be gathered from domestic constraints.(117) Domestic constraints can be used to garner a greater slice of the international pie, especially when the limits of the domestic constraints are unknown to the other international negotiators. The advantage gained, however, is subject to potentially fatal considerations. If the international negotiator misrepresents or underestimates the domestic constraints, there is a substantial risk of involuntary defection. As the constraints increase, so does the risk of involuntary defection, absent a significant increase in the transparency of the domestic constraints.(118)
Second, domestic constraints also raise the possibility of less efficient solutions in the international agreement.(119) In the presence of severe internal constraints, the bargaining set may be reduced so much as to exclude a Pareto efficient solution from consideration. The result is that the agreements reached will not recognize the greatest possible gains for all actors. Domestic constraints in this case will not change the size of the international pie, but will force the international negotiators to leave a part of the pie on the counter to go stale.
The existence of domestic constraints, when coupled with incomplete information as to the necessary acceptable domestic outcome and the existence of a veto, can imperil international negotiations. This is particularly true in the presence of uncertainty, which limits the available information on the domestic constraints, potentially leading to a greater frequency of involuntary defection.(120) The danger is further magnified by the existence of domestic veto authority. Therefore, it is likely that in situations where there are high domestic constraints, significant uncertainty, and domestic veto authority, international negotiations will break down frequently.
C. Application to the Pacific Salmon Treaty
The Pacific Salmon Treaty established a forum for ongoing negotiations between the United States and Canada for the management of Pacific Salmon.(121) The decisions of the Pacific Salmon Commission are the mechanism for implementing the principles of the Treaty.(122) These decisions are made by consensus between the Canadian and U.S. Sections.(123) For this reason, the operation of the Pacific Salmon Commission is an ideal place to explore the implications of domestic politics on the functioning of international negotiations. The negotiation of fishery regimes is a continuous process that allows for more detailed examination of domestic politics due to the greater clarification of the domestic positions through time.
The primary problem facing the implementation of the Pacific Salmon Treaty is the equitable sharing of intermingled stocks. As described earlier, salmon tend to migrate northward while they grow and develop and then return to their rivers of origin by a southerly route.(124) Very little progress on equitable sharing has been made since the Treaty was adopted in 1985.(125) A basic Canadian strategy, used both up to and after Treaty adoption, has been to use its fisheries off the west coast of Vancouver Island as the principal means of balancing interceptions of Fraser River sockeye and pink salmon and other Canadian stocks taken in southeast Alaska.(126) According to the Canadians, the disparity between U.S. catches of Canadian fish and Canadian catches of American fish, particularly in Southeast Alaska and the Fraser River fisheries of Washington and Oregon, amounts to about five million fish annually.(127) Over the years, the differences between U.S. and Canadian interceptions has grown for several reasons. Coho and chinook populations in Washington and Oregon have plummeted, meaning less fish for the Canadians to take to make up for U.S. interceptions.(128) The U.S. fisheries along Alaska's southeastern coast, especially at Noyes Island, have been catching more and more Canadian coho and sockeye, largely because Canadian salmon runs are booming.(129) In essence, the problem stems from the relative health of Alaskan and Canadian salmon stocks, the poor health of the Pacific Northwest stocks, and the migratory pattern of adult salmon moving from north to south. This problem is only compounded by the structure of the Treaty. Currently, the Treaty provides for ceilings on permissible interceptions,(130) but the Canadians complain that, because the salmon runs of the Northwest have been decimated while Canadian runs have flourished, the United States has reached its ceiling on interceptions while Canada has not.(131) The international negotiations taking place within the Pacific Salmon Commission are largely consumed by the difficulty of resolving this issue.(132)
1. The U.S. Section to the Pacific Salmon Commission
The U.S. section to the Pacific Salmon Commission is governed by the implementing legislation for the Pacific Salmon Treaty.(133) The U.S. section is composed of four commissioners appointed by the President.(134) Of the commissioners, one represents the U.S. Government, which is a nonvoting member, one is appointed from a list submitted by the State of Alaska, one is appointed to represent the States of Washington and Oregon, and the final member is appointed from a list recommended by the Treaty Indian tribes from the States of Idaho, Oregon, and Washington.(135) The three voting members are required to "operate with the objective of attaining consensus decisions in the development and operation of its single vote in the Commission."(136) The statute further requires decisions of the U.S. section to be unanimous.(137) The statute provides each commission with veto power over the proposals made to and the approval given by the Pacific Salmon Commission.(138)
The federal government's role in the Pacific Salmon Commission is limited. The states and tribes regulate their fisheries according to the Pacific Salmon Commission's recommendations.(139) The Secretary of Commerce has the ability to preempt state or tribe actions that do not comport with the recommendations of the Pacific Salmon Commission, but, because the U.S. Section to the Commission is required to work by consensus, the Pacific Salmon Commission can make no recommendations without the approval of all the voting members.(140) This reduces the likelihood of any state or tribe undertaking management plans inconsistent with Pacific Salmon Commission recommendations.
This voting arrangement makes an analysis of the domestic situation within the United States critical. The domestic struggles of the United States in dealing with the disparate conditions of the salmon fisheries in Washington and Oregon as compared to Alaska define the bargaining set available to the United States within the Pacific Salmon Commission. The split in the U.S. is primarily one of feast or famine, with Canada caught in the middle. The salmon fisheries of southeast Alaska are booming, as are most of the Canadian fisheries of British Columbia, but the salmon runs of the U.S. Northwest are dwindling and in some cases listed under the Endangered Species Act (ESA).(141)
2. The Impact of the Endangered Species Act
On November 20, 1991, the National Marine Fisheries Service (NMFS) designated the Snake River sockeye salmon an endangered species.(142) This decision started a process that may ultimately protect the remaining salmon within the region; however, it may do so at great expense to the agricultural and economic interests of the Pacific Northwest.(143) The Snake River sockeye salmon, which is not of commercial importance, was decimated by the development of hydroelectric dams along the Columbia and Snake Rivers.(144) Indeed, the run of Snake River sockeye in 1991 was only four fish, one female and three males.(145) The decimation of the Snake River Sockeye and its designation as an endangered species is a recurring theme throughout the northwestern states.(146) A report entitled The State of the Northwest(147) summarized the condition of Northwest salmon runs:
Healthy salmon runs--and the healthy ecosystems they reflect--have become
rare in much of the Northwest. A recent study of salmon in California, Idaho,
Oregon and Washington concluded that in only 6 percent of their collective
range are most salmon stocks in good condition. In 38 percent of this range
all salmon are extinct, and in 56 percent most stocks are imperiled or
extinct. At least 106 major salmon stocks are extinct in these states, and
more than 200 face some risk of extinction.(148)
The problem for the Northwest in managing salmon despite massive alterations to the Columbia River System was further complicated by the additional ESA listings of the Snake River chinook salmon in 1992 and 1994.(149) These listings precipitated an onslaught of litigation that led, in part, to injunctions being issued against all current and future projects in several National Forests in the region.(150) As a result of the listing, the complexity of the issues surrounding salmon in the Northwest has grown dramatically.(151) In addition to the vast numbers of organizations now involved with salmon restoration and protection, the courts have begun to get involved in dramatic ways.(152)
Salmon restoration is an important facet of conservation efforts in the Pacific Northwest.(153) The Northwest Power Planning Council (NPPC), a body charged with developing a restoration program for the Federal Columbia River Power System, has continued a process that began in the 1980s.(154) In the plan for the Columbia River, there are four sub-goals toward the ultimate goal of rebuilding the Columbia Basin salmon populations.(155) The four benchmarks are: 1) to halt the decline in populations and rebuild populations to a biologically sustainable level by the year 2000; 2) to further rebuild populations to a level that will support commercial and sport harvest by the year 2030; 3) to rebuild populations beyond the previous two levels to that which will protect, mitigate, and enhance the populations of fish and wildlife in the Basin affected by the operation and development of the Columbia Basin hydroelectric system; and 4) to accomplish these rebuilding efforts without loss of biological diversity.(156) The third sub-goal is to be achieved by 2194.(157) Thus, the program is attempting to restore some use to the Columbia fisheries by 2030, but does not expect to provide for the full recovery of the region's fishery resources for at least two hundred years.
Even these long-term and modest efforts are not going unchallenged. Challenges have been spearheaded by electric utility companies, which predict a thirty percent increase in electricity costs if further requirements are enforced to protect the salmon runs.(158) This figure has been challenged in turn by various pro-conservation interests as unreasonably high.(159) The debate boiled over into a lawsuit in which the Ninth Circuit characterized the fish and wildlife provisions of the Northwest Power Act as "[a]ttempting to balance environmental and energy considerations."(160) According to the NPPC's 1994 Columbia River Basin Fish and Wildlife Program, average annual costs to the region for salmon recovery are between $90 million and $225 million.(161) This represents a rate increase of between seven and eleven percent over the next twenty years.(162) Whatever the actual figure, the economic and cultural interests, both in favor of conserving the salmon runs and utilizing the power and irrigation capabilities of the Columbia River to the fullest, are significant.(163) In a region that has recently been subjected to divisive environmental-economic battles,(164) the salmon are another player in the greater balancing act between the region's technological advancement and the region's use and conservation of natural resources.
It is unnecessary to venture further into these complicated legal matters to understand their potential impact on the international situation.(165) These struggles, which may be just beginning, generate a huge amount of uncertainty as to the future needs of the salmon, the economic structure of the region, and the function of the Pacific Salmon Commission itself. For example, during the late summer and early fall of 1995, the U.S. domestic factions ended up in court following the collapse of negotiations within the U.S. Section of the Pacific Salmon Commission.(166) In March 1995, Alaska presented to the U.S. Section a new model for estimating catch levels for chinook salmon in southeast Alaska.(167) The new model supported a greater chinook harvest than recommended by a joint U.S. Canada Scientific Committee formed under the Pacific Salmon Treaty.(168) The other U.S. section voting members objected to the new model, which prevented the U.S. section from reaching a consensus and submitting the new model to the Pacific Salmon Commission for consideration.(169) The Treaty Indians sued in federal court after Alaska announced that it would proceed based on the new model and not the one employed by the joint technical committee.(170) The court issued a temporary inJunction on August 4, 1995, preventing further harvest and closed the chinook season for 1995 on September 7, 1995.(171) Such judicial involvement will further complicate the domestic situation, especially if Alaska is forced to abide by recommendations made only by a majority of the U.S. section and not the entire Pacific Salmon Commission.(172)
The negotiations and the problems occurring within the Pacific Salmon Commission are still developing. The domestic situation, particularly the recovery plan for the region's salmon, also directly affects international negotiations. The amendments to the Columbia River Basin Fish and Wildlife Program,(173) announced on December 14, 1994, stated that a necessary step in the recovery of the Columbia River Basin chinook is "intensive efforts to resolve the impasse on the U.S.-Canada salmon interception treaty negotiations to bring about significant reductions in Canadian interceptions of Columbia River Basin fall chinook."(174) The international negotiations and the developing domestic requirements for salmon recovery affect the bargaining sets of the various domestic interest groups within the United States by creating further uncertainty. This is especially true regarding the Endangered Species Act and the Columbia River Basin Fish and Wildlife Program, both of which continue to frustrate the negotiations taking place at the level of the Pacific Salmon Commission.(175)
3. The Bargaining Sets of the U.S. Domestic Groups
Without looking at the effect of the veto authority held by each member of the U.S. section to the Pacific Salmon Commission, it is possible to discern the bargaining sets of the respective groups from a basic understanding of the situation in the Northwest. From the very beginning, Alaska has maintained its relative independence from the rest of the U.S. section. This stems in large measure from three important points. First, Alaska has undertaken extensive efforts, including habitat protection, harvest reductions, and hatcheries, to rebuild its depressed stocks of salmon, while not developing the hydroelectric capabilities of its rivers to the point of decimating salmon runs.(176) Second, because Alaska has undertaken these measures to protect its salmon, Alaskans resent the possibility of having to scale back their fisheries to reduce the interception imbalance caused in large measure by the decimation of the Northwest salmon.(177) Representative Don Young (A-Alaska), the current Chair of the House Resources Committee, recently called any arrangements that may require Alaska to scale back its fisheries to help depleted runs in the Northwest "nonsense."(178) Finally, there is significant friction between the State of Alaska and the federal government as to both the management of salmon in southeast Alaska and the future role of the federal government in the Pacific Salmon Commission.(179)
This last point requires special consideration in light of potential solutions to the current impasse. Alaska has become concerned that the failure of negotiations to resolve the stalemate within the Pacific Salmon Commission may lead to an increased role for the federal commissioner in the development of U.S. positions. This has lead Alaska to insist that the current structure of the U.S. section is critical to maintaining Alaska's support of the Treaty. As Charles Meacham, Alaska's Commissioner for the Pacific Salmon Commission and Deputy Commission for Fisheries for the Alaska Department of Fish and Game, testified, "maintaining regional control of the fisheries management programs through the current United States Section decision process . . . continues to be essential to gaining regional support for the treaty."(180) Without debating the merits of the testimony, or the thinly veiled threat implicit in Alaska's stance, Alaska is developing a "siege" mentality with regard to salmon.(181)
At the other end of the spectrum are the States of Washington and Oregon. With the Columbia River Basin's development of water diversion and withdrawal and hydroelectric capabilities, the salmon originating in these states were decimated. Currently, these states are faced with the federally mandated task of restoring these historically important salmon runs. While there are several important steps that must be undertaken in this effort, one factor in particular has the potential to derail the international negotiations within the Pacific Salmon Commission. As outlined above, one of the key factors targeted by the salmon recovery plans is the reduction of the incidental take of Columbia River bound chinook salmon off the west coast of Vancouver Island by Canadian fisheries.(182)
With the inclusion of reduced chinook interceptions in the Columbia River recovery plans, the bargaining stance of these states becomes fairly easy to define. It is necessary to grant concessions to Canada in order to reduce the interceptions. What further complicates this situation is the existence of the small fishery by U.S. fishers, based on Fraser River sockeye salmon, in the Straits of Juan de Fuca. This is an historical fishery of the United States, protected up until the adoption of the Pacific Salmon Treaty by the Fraser River Convention, and it may prove difficult to sacrifice.(183) It may be politically and practically impossible for Washington and Oregon to use the Fraser River sockeye fishery as an off-set to decreased Canadian takes of chinook.(184)
To further complicate the domestic situation, the Pacific Salmon Commission has a "wild-card" in the form of the Northwest Treaty Indians. This group, which is defined in the implementing legislation as "any of the federally recognized Indian tribes of the Columbia River basin, Washington coast or Puget Sound area having reserved fishing rights to salmon stocks subject to the [Pacific Salmon] Treaty," has been placed on an equal footing with the representatives of the State of Alaska and the States of Washington and Oregon.(185) In the negotiations that led up to the ratification of the Pacific Salmon Treaty, these Indian tribes stipulated that the Treaty would suffice to exempt Alaska from significant tribal litigation.(186) Immunity from these lawsuits could end if the Treaty is terminated by either side.(187) It appears as if the Indian tribes' primary focus is to support the recovery of the Columbia River Basin salmon stocks in order to provide for the tribal fisheries historically supported in the region.
Because of their unique legal status, these tribes may have had a significant impact on Alaska's position with regard to the Pacific Salmon Treaty. The threat of renewed litigation by the Indians against Alaska is probably at least partially responsible for the continued support shown for the Treaty by Alaska and the current voting structure of the U.S. section.(188) In the Treaty's absence, the Indians, through litigation against Alaska, may be able to force reductions in Alaskan salmon fisheries in order to reach an agreement with the Canadians to minimize interceptions of Columbia River bound chinook salmon off the coast of Vancouver Island.(189) Given this additional consideration, it is to Alaska's advantage to continue to support the current Treaty. This allows Alaska to veto any proposals by Washington and Oregon to limit its fisheries to protect the declining salmon of the Columbia River Basin. It also prevents the Indians from exercising legal rights that may have the same limiting effect on Alaska's fisheries.
Alaska's entrenched position and the cover allowed by the veto provision are directly responsible for the ineffectiveness of the Pacific Salmon Commission in resolving the current issues between the U.S. and Canada. The question remains, however, as to the best approach to resolving the impasse. As the scholarly work on international relations and two-level games shows, significant domestic constraints can be a bargaining advantage at the international level.(190) Canada, within the Pacific Salmon Commission, must find solutions acceptable to all the various interest groups within the United States, thus enabling the United States to realize a larger share of the distributional gains.(191) This is tempered by two considerations. First, there has to be an international outcome acceptable to all the domestic coalitions within the United States.(192) Second, to avoid an inefficient allocation of the valuable salmon resource, the potential outcome must approximate the theoretical Pareto-efficient frontier for negotiated outcomes.(193)
4. The Veto Provision and the Effect of Majority Rule within the U.S. Section
The existence of veto authority within the U.S. section necessitates the universal acceptability of the international agreements reached within the Pacific Salmon Commission to the domestic interests represented by the U.S. section. It goes without saying that this will always complicate negotiations in situations where the domestic interests are not unified.(194) In the case of the salmon, however, the regional differences between the Northwest and Alaska are so great there is a real possibility that no overlap exists between the outcomes acceptable to each group. If this is indeed the case, then this pessimistic appraisal provides the baseline from which to explore possible solutions.
The latest salvo fired in this battle over the veto provisions within the U.S. Section came in August 1995, when U.S. District Court Judge Barbara Rothstein issued a temporary injunction against Alaska, preventing the catch of additional Canadian- and U.S.-bound chinook salmon.(195) She found that Alaska had violated the Pacific Salmon Treaty by not participating in the treaty process.(196) The plaintiffs in the case, the Indian tribes supported by the States of Washington and Oregon and the Canadian government, claimed that the State of Alaska had to reduce its harvest of certain chinook salmon fisheries by as much as fifty percent to protect depleted runs.(197) Alaska responded by arguing that the cuts were unnecessary and that Canada and the States of Washington and Oregon were trying to reduce Alaska's salmon catch under the guise of conservation.(198) This judicial foray into issues specifically delegated to the Pacific Salmon Commission may be a necessary step to resolve the current impasse, but it further confuses the international negotiations. The court's injunction casts significant doubt on the effectiveness of Alaska's veto authority within the Pacific Salmon Commission and may accomplish through judicial hyperactivity what has been proposed as a legislative solution: remove the veto authority of the voting members of the U.S. section to the Pacific Salmon Commission.(199)
Removing the veto authority of the states and Treaty Indians on the Pacific Salmon Commission would facilitate negotiations between the U.S. and Canada by allowing Canada to address its equity concerns by developing a negotiating position acceptable to the majority coalition within the U.S. section. Because the interests of the Treaty Indians and the States of Washington and Oregon are currently closely aligned, Canada could force reductions in the interceptions of Canadian salmon by Alaskan fisheries in exchange for reduced interceptions of Columbia River Basin chinook.
The loss of veto authority by Alaska would, however, reduce the domestic constraints on the U.S. section by essentially removing the concerns of Alaskan fishers from consideration. For example, in the negotiations leading up to the Treaty, the inclusion of Alaskan concerns was critical to the acceptability of the Treaty to the United States.(200) Given the involvement of domestic law in the recovery of the Columbia River Basin chinook conservation activities, the U.S. section may be placed in the unenviable position of having to give up significantly more of the distributional gains to get concessions from the Canadians necessary to meet domestic legal requirements.(201) In other words, the removal of the Alaskan veto may allow Canada to exploit the Columbia River Basin recovery plans to garner a greater share of the joint gains. While this may appear to reverse the relationship between domestic constraints and bargaining leverage by deceasing the leverage enjoyed by the U.S. section when the constraints are increased, it is actually a broadening of the U.S. section bargaining set. The U.S. section, absent the Alaskan veto, will not have to consider the requirements of Alaska, thus broadening the bargaining set by removing those concerns from the negotiations. While it is impossible to deny the impact of commercial salmon fisheries on the Northwest, the issue of salmon restoration has gained significant political momentum in the last several years. The loss of the restraints placed on the U.S. section by the Alaskan veto will prove beneficial to Canadian negotiators. The position of the U.S. section will be significantly weakened, which will prevent the United States from maximizing its share of the distributional gains.
If the Canadians are able to force a greater distributional share through commitment to the "no agreement outcome," then the United States would be placed in a significantly weakened negotiating position. While the application of this technique to the size and structure of the bargaining set has not been explored, the analysis of its effects on issue linkage provides a useful analogy. If a particular party can make a commitment to the "no agreement outcome" (the origin in Figures 2, 4, and 6), it can force the linkage of issues that would not be considered absent the linkage. Figure 7 is a graphical representation of this situation.(202) Imagine that the bargaining range has narrowed to a single point, Z, which both parties prefer to the status quo or to a "no agreement outcome." Party B would like to discuss the issue that results in outcomes denoted by the line connecting points O and Y, but Party A does not, because all the outcomes are less desirable than no agreement on the second issue. If Party B is able to make a binding, visible, and irreversible commitment to the "no agreement outcome" (the origin), then Part A must either refuse negotiations or agree to the linkage (graphically denoted by the dashed line connecting Z to [Y]). As long as the linkage does not exclude all negotiated solutions that are beneficial to both parties (at least one point of agreement in the northeast quadrant), Party A should be willing to negotiate on the second issue even with the forced linkage.(203)
Figure 8, when compared with Figure 6, illustrates the potential effect of this analysis on the bargaining set within the context of a single issue. In Figure 6, the reservation curve of the A1 faction limited the bargaining set to those solutions on the efficient frontier, yielding a greater distributional gain for A as opposed to B. Figure 8, however, details the situation when the domestic constraints placed on A's negotiating position by A1 are exploited by B and may actually prove detrimental to A's share of the distributional gains. This outcome could be expected when A's bargaining set includes a set of criteria that is nonnegotiable, reasonably well-defined, essential to any majority coalition, and obvious to the other party to the negotiations.(204) In other words, if the Canadians. are aware of the restoration requirements of Washington, Oregon, and the Treaty Indians, they can exploit these requirements to garner a greater share of the joint gains absent the restraints generated by the Alaskan veto. It comes as no surprise, therefore, that the Canadian government strongly supports the efforts of Washington, Oregon, and the Treaty Indians in their suit against Alaska(205) and the proposed modifications to the voting structure of the U.S. sectiOn.(206)
If the structure of the U.S. section to the Pacific Salmon Commission is modified by removing the consensus requirement, Canada will enjoy a greatly improved bargaining position. While the Canadians undertook significant unilateral reductions in their own chinook salmon fisheries during the summer of 1995,(207) the long-term effects of removing the veto authority held by Alaska or the other Commissioners of the U.S. section should not be discounted. Allowing the Canadian section to drive wedges between the various interest groups within the U.S. section will significantly improve the bargaining position of the Canadians and will allow them to extract expensive concessions from the United States in future negotiations.
5. Internal Side-Payments and Issue Linkage
An alternative to the removal of veto power is to modify the bargaining positions of the members of the U.S. section by allowing for internal side-payments. By developing the capacity of the domestic factions to make side-payments among themselves, parts of the bargaining set currently closed off could be reopened. The desirability of these internal side-payments depends on whether the internal division was, on balance, a net benefit or liability.(208) The lack of agreement within the U.S. section and the increasing tension between the United States and Canada during the summers of 1994 and 1995 demonstrate the costs associated with the current American negotiating regime.(209) The facilitation of payments between the various domestic interests of the United States would alleviate this problem.
If the current impasse within the U.S. section is viewed in this light, the task becomes the rather more mundane one of modifying the negotiation framework between the commissioners within the U.S. section to find a suitable pay-off for Alaska. An acceptable side-payment to Alaska for reductions in salmon harvest in exchange for Canadian reductions in chinook interceptions will maintain the advantage enjoyed by the U.S. section over the Canadian section, while resolving the current difficulties satisfactorily.
This suggests two changes that must occur within the U.S. section. The first is rather simple: modify the structure of the U.S. section to the Pacific Salmon Commission to allow for the inclusion of other nonsalmon-related issues within the negotiations between U.S. Commissioners. The second is considerably more difficult: locate issues that can be linked to salmon interceptions to remove Alaska's objections.
The primary problem facing the U.S. section is not the existence of the consensus requirement. The structure of single-issue negotiation established by the enabling legislation and the Treaty itself has left the commissioners unable to add issues to the domestic negotiations.(210) This oversight has paralyzed the U.S. section because of the relatively intractable positions of the commissioners. The ability to link issues is a critical tool in any negotiation, a fact recognized several hundred years ago by Francois de Callieres when he wrote,
[a]n ancient philosopher once said that friendship between men is nothing but
a commerce in which each seeks his own interest. The same is even truer of
the liaisons and treaties which bind one sovereign to another, for there is no
durable treaty which is not founded on reciprocal advantage, and indeed a
treaty which does not satisfy this condition is no treaty at all, and is
apt to contain the seeds of its own dissolution. Thus, the great secret to
negotiations is to bring out prominently the common advantage of both sides
and to link these advantages that they may appear equally balanced to both
When Congress designed the U.S. section, it failed to include a mechanism that allowed issue linkage to overcome the incompatible interests represented by the various commissioners. This stripped the commissioners of an important negotiating tool.(212) The veto provisions did not create but merely exasperated the situation.
Broadening the issue landscape available for the commissioners to work within is only the first step. If issues are viewed as commodities and negotiators as traders in a market, it is also necessary that a "market" be developed for issue linkage. The entry of different issues into the market will depend on the preferences of the traders and the institutional and legal elements of the market.(213) Using a classic economic analysis, this market would potentially fail if high transaction costs swamped the marginal gains. If the preferences of the traders or the intractability of their positions are such that the costs of reaching agreement are larger than the gains realized from the linkage, the market could fail. This is a particular concern in the case of the U.S. section because of the current negotiating environment. As de Callieres warned, "[m]enaces always do harm to negotiation, and they frequently push one party to extremities to which they would not have resorted without provocation. It is well known that injured vanity frequently drives men to courses which a sober estimate of their own interest would lead them to avoid."(214) Therefore, any modification to the voting regime supporting the U.S. section should be negotiated rather than imposed from Washington, D.C.(215) The long-term success of these changes will ultimately depend on whether Alaska views them as the logical and fair result of negotiation or an imposed settlement from a distrusted federal government.(216)
One approach that may yield some fruit in this endeavor would be an intergovernmental meeting between the States of Washington, Oregon, Alaska, their wildlife and fishery agencies, the Indian tribes, and the federal government. A format similar to an international conference may serve as a useful model. By bringing together all the regional players in an environment conducive to compromise without feeling threatened, it may be possible to address salmon restoration in the Northwest. The Northwest has already attempted this approach when Senator Mark Hatfield (R-Or.) convened the "Salmon Summit" in 1990.(217) The effort, however, failed to include Alaska as a critical player in the restoration efforts surrounding the Columbia River Basin.(218) By excluding Alaska from negotiations designed to restore the Columbia River chinook, the Northwest states hamstrung the very restoration programs they sought to implement. Including Alaska within the regional negotiations for salmon restoration rather than relegating Alaskan concerns to the forum of the Pacific Salmon Commission would significantly improve the chances for successful negotiations between the regional interest groups and Canada.
A regional summit undertaken to address the problems surrounding the Pacific Salmon Treaty should focus on addressing the distributional problem of salmon between Alaska and the Pacific Northwest states and Treaty Indians. In order to accomplish this goal, however, the summit must address other regional resource issues, from mining to oil exploration to forestry. Additionally, the proposed summit must have the specific goal of resolving any conflicts on all these issues. A summit that limits its agenda to merely discussing the natural resource issues of the region could not be expected to resolve the problems facing the Pacific Salmon Treaty because the parties are already aware of the negotiating positions of the others. In other words, there is a need for action not words, and any summit that is called should be directed toward the development of a written agreement between all the interested parties concerning all the important issues. Only then will the parties begin to link issues in order to reach agreement. As an example of how the summit might link issues, Alaska has expressed an interest in developing the oil resources of the Arctic National Wildlife Refuge (ANWR). Without delving into the relative merits of that proposal, Oregon and Washington could perhaps give their support to Alaska on the ANWR issue for concessions on the salmon problem. The linkage of issues is not limited to issues in which all the parties have an identifiable interest. Rather, all the parties to the summit would bring not only their particular issues and concerns, but also their political clout to the table. Without this type of linkage, there is little reason for optimism when it comes to the Pacific Salmon Treaty, the domestic interests are simply too far apart for successful compromise.
A regional summit would also maintain the bargaining advantage enjoyed by the U.S. section within the Pacific Salmon Commission. By keeping the negotiations of the proposed summit internal to the United States and the various regional interests, the Canadians would not enjoy the significant increase in bargaining leverage that might result from loosening the voting requirements of the U.S. section. Increasing communication and cooperation between the States of Alaska, Washington, and Oregon and the federal government would also mitigate the effectiveness of the Canadian strategy of leveraging one U.S. interest against the other.(219) The result of these changes would be a more cooperative atmosphere within the U.S. section leading to more effective bargaining with Canada.(220)
[Figures 1 to 8 ILLUSTRATION OMITTED]
(1) On August 29, 1994, the Canadian government announced a special two-day opening for the troll fishery of the Adams River sockeye salmon run. The result of this announcement was the deployment of a wall of almost 1000 Canadian fishing vessels just north of the border between British Columbia and Washington state. Due to this opening, there was no U.S. fishery for these stocks. Mark Hume, Canadian Fishboat "Wall" Riles Americans, Vancouver Sun, Aug. 30, 1994, at A1.
(2) As one report put it, "[i]n the super-heated rhetoric of the Canada-U.S. fish war, Canadians have been described as extortionists, blackmailers and the operators of a terrorist state. And that's just in the respectable press." Mark Hume, Angry U.S. Fishers Hook Blame on "Terrorist State," Vancouver Sun, Aug. 23, 1994, at A1. (3) Senator Slade Gorton (R-Wash.) tapped into the anger and frustration felt by U.S. fishers when he suggested that U.S. Coast Guard vessels should be sent to protect U.S. fishing vessels in the Georgia Strait. Id. at A1. (4) The war of words has continued unabated through the summer of 1995. The Canadian Minister of Fisheries and Oceans, Brian Tobin, all but gave up on constructive negotiations because of Alaska's stance on the chinook salmon harvest in 1995. "The Alaskan position, if it represents the position of the United States, effectively ends any possibility of further constructive negotiations," stated Tobin. U.S. Fails to Act Responsibly in Negotiations, CAN. Newswire, June 30, 1995, available in LEXIS, Nexis Library, Wires File. Tobin later accused Alaskan fishers of indulging in "a frenzy of greed." Jeffrey Simpson, Canadians Have Their Own Problems with Their Salmon, Oregonian, Aug. 11, 1995, at B7; Colin Nickerson, Canada-U.S. Fight Looms Over Salmon, Boston Globe, July 9, 1995, at 2. Alaska for its part refused to alter its chinook quota, claiming Canada's dispute with Alaska amounted to "quota bashing" and that while chinook fisheries are depressed, recovery does not require the drastic reductions proposed by Canada. Neal Hall, Canadians "Quota Bashing," U.S. Fisheries Official Says: Tobin's Tough Talk Won't Improve Future Salmon-Treaty Talks Alaskans Claim, Vancouver Sun, July 5, 1995, at B3. As Alaskan Governor Tony Knowles (D) put it: "When you have more fish, you harvest more. When you have less, then you cut back. It is as simple as that. Alaska hasn't hit the stocks hard at all." Nickerson, supra, at 2. (5) Pacific Salmon Comm'n, Pacific Salmon Commission 12 (1988). (6) Id.
(7) The Pacific Salmon Commission estimates that the value of the recreational aspects of salmon to the region run into the hundreds of millions of dollars. Id. In addition to the dollar value of the fisheries, several Native American communities depend on the salmon. The fish hold central places in ceremonial, subsistence, and commercial aspects of their lives. Id. at 11. (8) Thomas C. Jensen, The United States-Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview, 16 Envtl. L. 363, 370-71(1986). Jensen describes the problem through examples of unavoidable interceptions of fish from another country by fisheries of the other. One example is the interception of salmon originating in British Columbia by U.S. fisheries in southeast Alaska. Id.
(9) This is the classic commons problem faced by fisheries. As the international law of fisheries developed, the solution reached by the international community was to expand the jurisdiction of states over particular fishery resources. In the case of salmon, this has been accomplished through the generally accepted norm of customary law that the coastal state of origin for anadromous fish, like salmon, has exclusive control over the stocks for management purposes. See Third United Nations Convention on the Law of the Sea, signed by U.S. July 29, 1994, S. Treaty Doc. No. 103-39, 103d Cong., 2d Sess. art. 66(3) (1995); see also Jensen, supra note 8, at 371-72 (discussing the problems fisheries face when other nation's fishers catch their fish).
(10) M.J. Peterson, International Fisheries Management, in Institutions for the Earth 249, 263 (Peter M. Haas et al. eds., 1993). According to Peterson, about 90% of the edible species range within 200 nautical miles of some coast. A much smaller percentage, however, remain confined within the neat boundaries of a single state's EEZ. Id. (11) Id. at 264-65
(12) The Future of the Pacific Salmon Treaty and Its Likelihood of Achieving the Goals of Conserving Pacific Salmon Stocks in a Manner Equitable to Both Canada and the United States: Hearing Before the Subcomm. on Environment & Natural Resources Joint with the Subcomm. on Fisheries Management of the House Comm. on Merchant Marine & Fisheries, 103d Cong., 2d Sess. 16 (1994)
(statement of Robert Turner, Pacific Salmon Commission) [hereinafter Turner Testimony]. (13) Unfortunately, this is a return to the situation that existed before the adoption of the Treaty. As one commentator noted when the Pacific Salmon Treaty was first adopted, "the Treaty won the support of dozens of groups who for decades had nothing good to say about each other, who regularly sued each other, and who certainly could not have held much hope for reaching common ground." Jensen, supra note 8, at 367. This "after-glow" was short lived. (14) Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon, Mar. 7, 1985, U.S.-Can., T.I.A.S. No. 11,091 (entered into force Mar. 18, 1985) [hereinafter Pacific Salmon Treaty]; U.S. implementation of the treaty is authorized in Pub. L. No. 99-5, 99 Stat. 7 (1985) (codified at 16 U.S.C. [subsections] 3631-3644 (1994)). (15) Resolving the international issues is becoming increasingly critical. It was clear in 1985 when the Treaty was adopted that the salmon fisheries were showing clear signs of a "tragedy of the commons." Jensen, supra note 8, at 372 (quoting Charles F. Wilkinson & Daniel K. Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 Kan. L. Rev. 17, 20-21 (1983)). Since 1985, the situation has continued to worsen, ultimately leading to the listing of several Columbia River salmon runs as endangered. See infra note 142 and accompanying text.
(16) The Fraser River is the most productive salmon spawning river in Canada. See Daniel Conner, The Troubled Pacific Salmon Treaty: Why It Must Be Ratified, Ocean L. Memo, Sept. 1983, at 2.
(17) Marlyn Twitchell, Implementing the U.S.-Canada Pacific Salmon Treaty: The Struggle to Move from "Fish Wars" to Cooperative Fishery Management, 20 Ocean Dev. & Int'l L. 409, 410 (1989). (18) Jensen, supra note 8, at 373.
(19) Protocol to the Convention for the Protection, Preservation, and Extension of the Sockeye Salmon Fisheries in the Fraser River System, May 26, 1930, U.S.-Can., 8 U.S.T. 1058 [hereinafter Fraser River Convention].
(20) While the Convention only dealt with one of the river systems along the Pacific coasts of the two countries and only two of the salmon species found in that system, it has generally been considered a success. The estimated annual sockeye run before the near disasters of 1913 and 1914 averaged about 12 million fish. Tim Klass, Salmon Finally Appear to Be Back in the Pink Ecology: The Worst Declines Have Been Turned Around, Thanks to U.S. and Canadian Efforts, L.A. Times, Mar. 12, 1995, at 21 (interview with John F. Roos, former staff director for the original salmon commission). The average from 1990 to 1993 was 16.3 million fish, or about one-third more. Id. (21) Until the development of international law in the area of state of origin ownership of anadromous stocks through the Law of the Sea process, salmon were treated like any other high seas fishery and ownership did not attach until they were caught. See Louis Henkin et al., International Law: Cases and Materials 1343-44 (2d ed. 1987). With the change in international law, questions developed as to the distribution of Fraser River stocks, which now clearly belong to Canada but which historically were utilized by both the U.S. and Canada. This problem has been addressed partially by the inclusion of language in the principles of the Pacific Salmon Treaty: "In fulfilling their obligations . . . the Parties shall take into account . . . the desirability in most cases of avoiding undue disruption of existing fisheries." Treaty With Canada Concerning Pacific Salmon, Jan. 28, 1985, U.S.-Can.,.art. III, pare 3(b), T.I.A.S. No. 11,091, at 7.
(22) Peter Larkin, Pacific Salmon: Scenarios for the Future 20 (1980).
(23) Jensen, supra note 8, at 375, n.28.
(24) Larkin, supra note 22, at 20.
(25) Protocol between the Government of the United States and the Government of Canada to the Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fisheries in the Fraser River System, Dec. 28, 1956, 8 U.S.T. 956, 205 U.N.T.S. 65 (entered into force July 3, 1957).
(26) International Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952, 4 U.S.T. 380.
(27) The convention essentially draws a line through the center of the Pacific at the 175 degrees west longitude line in a somewhat arbitrary attempt to separate salmon that originated in American and Canadian waters from those that originated in the then-Soviet Union. See id. at 391. In the years since the signing of the North Pacific Convention, scientific evidence has been developed that shows North American salmon migrate further west than the 175 degree line. As two commentators note, "[t]he Treaty provides a fine example of what happens when regulations are written in advance of scientific study." WiLkinson & Conner, supra note 15, at 68 n.275 (1983); see also Jensen, supra note 8, at 377. (28) See Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S. 285. This convention, however, was far too general to be of much help in the regulation of Pacific salmon. It merely called for all signatory nations to support the development of international agreements to conserve the living resources of the high seas. 17 U.S.T. at 140.
(29) Jensen, supra note 8, at 377.
(32) Barbara Johnson, Canadian Foreign Policy and Fisheries, in Canadian Foreign Policy and the Law of the Sea 52, 60 (B. Johnson & M. Zacher eds., 1977).
(33) Jensen, supra note 8, at 378-79.
(34) Agreement on Reciprocal Fishing Privileges in Certain Areas Off Their Coasts, Apr. 24, 1970, U.S.-Can., 21 U.S.T. 1283 [hereinafter Agreement on Reciprocal Fishing Privileges]. (35) Id. at 1285.
(36) Staff of House Subcomm. on the Environment and Natural Resources and Subcomm. on Fisheries Management, 103d Cong., 2d Sess., Background Memorandum, Aug. 2, 1994 (on file with author) [hereinafter Background Memorandum]. The memorandum details some of the history underlying the Pacific Salmon Treaty. In addition to the desires to prevent further declines in the salmon stocks and to reap the results of their individual hatchery programs, both the United States and Canada wanted to reach a common understanding on coastal state management of anadromous stocks in light of the then-concurrent negotiations of the Law of the Sea Convention. Id. at 1-2. Both the United States and Canada were motivated to come to a better understanding of the coastal state management of salmon stocks through a bilateral treaty in order to exclude other distant water fleets from the North American salmon fisheries. This drive was motivated by the negotiation of the Law of the Sea Convention and the potential hypocrisy of the International Convention for the High Seas Fisheries of the North Pacific Ocean. Jensen, supra note 8, at 377; see also notes 29-33 and accompanying text.
(37) The ride up to the acceptance of this treaty was not, however, a smooth one. The 1970 Reciprocal Fisheries Agreement was modified in 1973 to reduce significantly the areas of reciprocal fishing. Agreement on Reciprocal Fishing Privileges in Certain Areas Off Their Coasts, June 15, 1973, U.S.-Can., 24 U.S.T. 1729. This agreement was extended yearly until 1977. In 1977, the United States and Canada reached a new agreement that provided reciprocal salmon fisheries and committed the countries to "preserving existing patterns of their reciprocal fisheries." Reciprocal Fisheries Agreement, Feb. 24, 1977, U.S.-Can., art. VIII(1)(a), 28 U.S.T. 5571, 5575; see also Jensen, supra note 8, at 379-84. (38) 16 U.S.C. [subsections] 1801-1882 (1994). In passing the MFCMA, Congress intended to protect, conserve, and enhance American fishery resources by extending the exclusive fisheries zone of the United States from 12 to 200 miles off-shore and providing for the development of regional fisheries management plans and regulations. H.R. Rep. No. 94-445, 94th Cong., 2d Sess. 593 (1976).
(39) Jensen, supra note 8, at 380 n.45.
(42) On the countries' efforts to develop an allocation formula, see, e.g., Minutes of the U.S.-Canada Government-to-Government Meeting on Pacific Coast Salmon, June 14-15, 1978, cited in Jensen, supra note 8, at 381 n.47.
(43) Jensen, supra note 8, at 381.
(44) United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 500 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976) (presided over by Senior District Judge George H. Boldt; hence, the "Boldt Decision").
(46) The United States brought the suit on its own behalf and as trustee for several western Washington Indian tribes, including the Hoh Tribe, Makah Tribe, Muckleshoot Tribe, Nisqually Tribe, Puyallup Tribe, Quileute Tribe, and Skokomish Tribe. United States v. Washington, 384 F. Supp. at 327 n.1. The Lummi Tribe, Quinault Tribe, Sauk-Suiattle Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit River Tribe, and Yakama Nation later joined as intervenor plaintiffs. Id. at 327 n.2.
(46) Id. at 343. As a result of this case, the Washington State Department of Fisheries was left with the unenviable task of providing enough salmon for the Treaty Indians while avoiding disruption of existing commercial fisheries.
(47) Jensen, supra note 8, at 382-83; see also Twitchell, supra note 17, at 411 (noting that new hatcheries were being proposed in Washington and Oregon and on the Fraser River at the time of the Boldt Decision).
(48) Johnson, supra note 32, at 80-87, 90.
(49) Jensen, supra note 8, at 376.
(50) Johnson, supra note 32, at 81-82.
(51) The exact composition of the Alaskan troll chinook harvest was not well understood at the time, but it was clear by the late 1970s that the majority of the chinook taken by the Alaskan fleet originated outside of Alaska North Pacific Fishery Mgmt. Council, Fishery Management Plan and Environmental Impact Statement for the High Seas Salmon Fishery Off the Coast of Alaska East of 175 Degrees East Longitude During 1979, at 18, 9298, 128, 130 (May 1978); see also Jensen, supra note 8, at 386 (stating that Canadian fishers were taking "over forty percent of the total coastwide harvest of Columbia River and Washington Coast Chinook stocks"). (52) Jensen, supra note 8, at 386.
(53) The chinook runs of the Columbia River system were of particular concern. Chinook are one of the most valuable salmon stocks. The declines first noted in the early 1980s have continued, resulting in the total loss of many of the runs and the listing of several under the Endangered Species Act. See infra note 142 and accompanying text. The 1981 Pacific Fishery Management report states:
The upper Columbia fall chinook run entering the river continues a downward
trend in abundance, reaching an all time low in 1980. This decline has
occurred in spite of increased restrictions on the ocean fisheries in recent
years off northern Oregon and Washington. The chinook catch off Washington
dropped from 209,000 fish in 1979 to only 173,000 fish in 1980--well below
the annual average Washington ocean catch of 409,000 from 1971-75.
Pacific Fishery Mgmt. Council, Draft Proposed Plan for Managing the 1981 Salmon Fisheries Off the Coasts of California, Oregon and Washington 2-1 (Jan. 1981). The loss of the Columbia chinook runs has had serious impacts on the region and the Treaty Indian tribes. Jensen, supra note 8, at 388 n.71.
(54) Confederated Tribes &r the Bands of the Yakama Indian Nation v. Kreps, Civ. No. 79-541 (D. Or. Sept. 10, 1979).
(55) Jensen, supra note 8, at 390.
(58) Id. at 394
(59) Jensen, supra note 8, at 394. Chief U.S. Negotiator Dayton Alverson transmitted the draft agreement to the State Department with the following instruction: "All members of the delegation supported moving ahead with the agreement except the representatives of northern Puget Sound. These groups
(gillnetters, seiners and processors) feel the extant arrangements for the Fraser River are superior to those proposed in the new treaty." Id. at 394 n.86 (quoting a Letter from Dayton L. Alverson, Chief of Staff, U.S./Canada Salmon Interception Negotiations, to Theodore G. Kronmiller, Acting Deputy Assistant Secretary for Oceans and Fisheries Affairs (Dec. 28, 1982)).
(60) Id. at 394. In a January address to the Pacific Fishery Management Council, a spokesperson for the Canadian Government characterized the draft agreement as a "fair compromise" that would "form the basis for cooperation between our countries to develop our salmon resources for the benefit of fishermen in both our countries." Id. at 394 n.87 (quoting an Address by R.W. Morley, Canadian Department of Fisheries and Oceans, to the Pacific Fisheries Management Council (Jan. 13, 1983)). (61) Senator Stevens opposed the consideration and approval of the 1982 draft treaty because it would "have had a devastating impact on southeast Alaska fishermen" and therefore the entire Alaskan delegation (Senators Stevens and Murkowski and Representative Young) wanted the United States and Canada to "reconsider the Treaty's impact upon Alaska" Ted Stevens, United States-Canada Salmon Treaty Negotiations: The Alaskan Perspective, 16 Envt'l. L. 423, 423-424 (1986).
(62) David Suffla, Treaty Fails; Salmon Dwindle; Blame Abounds, Seattle Times, Sept. 5, 1983, at C1. Following the Alaskan actions, Wayne Shinners, Canadian West Coast Regional Fisheries Director-General, was quoted as saying that "Canada and the United States are on the verge of a West Coast salmon war." Jensen, supra note 8, at 395, n.90. He also stated that in retaliation for the Alaskan action, the Canadian fisheries off the west coast of Vancouver Island would be opened "in a big way," heavily impacting the chinook of the Columbia River system. Id.
(63) The United States pushed the Canadians for concessions on chinook interceptions, while giving little ground on Alaskan fisheries and demanding relatively high continued interceptions of Fraser River salmon. Jensen, supra note 8, at 396. The Canadians responded predictably by demanding dramatic reductions in Fraser River interceptions. Id. By January 27, 1984, the talks had degenerated into undiplomatic harshness. As the Seattle Post-Intelligencer put it, "[i]n unusually harsh diplomatic language, Canadian officials yesterday said it would be futile to resume negotiations unless the United States drops its 'unreasonable expectations and demands.'" Scott Maier, Canada Breaks Off Salmon Accord Talks, Seattle Post-Intelligencer, Jan. 28, 1984, at A5 (quoting Fisheries Minister Pierre De Bane). (64) Jensen, supra note 8, at 399.
(65) Id. In the absence of a treaty restricting Canadian interceptions of Northwest chinook, Jensen suggests that, if the Boldt Decision were found to apply to fisheries in Alaska, the reductions required to meet the 50% harvestable surplus of the Northwest's runs returning to tribal fishing areas would have required a 50% reduction in the Alaskan chinook harvest. Id. at 399 n.100. However, with a treaty reducing interceptions off Vancouver Island by Canadian fishers, only a 30% reduction by Alaskan fishers would be necessary. Id. According to Jensen, the 20% difference "appears to have been persuasive." Id. The stipulation agreement was entered into on March 7, 1985. Confederated Tribes & Bands of the Yakama Nation v. Baldrige, 605 F. Supp. 833 (W.D. Wash. 1985); see also Jensen, supra note 8, at 399-400 & n. 103.
(66) Pacific Salmon Treaty, supra note 14. (67) The Pacific Salmon Commission is created by Article II(1) of the Treaty. The Commission consists of two national sections, each made up of no more than four commissioners. Id. According to the Treaty, each national section shall have one vote in the Commission and a decision or recommendation of the Commission shall be made only with the approval of both sections. Id. art. II(6).
(68) Id. art. III(1)(a)-(b).
(69) Id. art. m(3)(a)-(b).
(70) The domestic enabling legislation can be found at Pacific Salmon Treaty Act of 1985, 16 U.S.C. [subsections] 3631-3644 (1994).
(71) Pacific Salmon Treaty, supra note 14.
(72) As Robert Putnam points out, "[m]uch of the existing literature on relations between domestic and international affairs consists either of ad hoc lists of countless 'domestic influences' on foreign policy or of generic observations that national and international affairs are somehow 'linked."' Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two Level Games, 42 Int'l Org. 427, 430 (1988). (73) Peter M. Haas et al., Institutions for the Earth 14 (1993). (74) In July 1994, the Canadian Government slapped a $1100 (U.S.) transit fee on all U.S. vessels using the Inside Passage from Puget Sound to southeast Alaska. Sandi Doughton, The View from the Boats: Issues in the U.S.-Canada Salmon War, News Trib. (Tacoma, Wash.), July 3, 1994, at A1. The Inside Passage is the protected Canadian water body that hundreds of Puget Sound-based U.S. fishing vessels must use to get to the salmon-rich Alaskan waters. Id. This was clearly an action taken out of frustration with the inability of the United States to develop a position for renegotiating the technical provisions of the Treaty. This type of fee, however, is illegal under the Law of the Sea Convention. Third United Nations Convention on the Law of the Sea, signed by U.S. July 29, 1994, S. Treaty Doc. No. 103-39, 103d Cong., 2d Sess. art. 26(1) (1995). For a description of the Canadian action and U.S. assessment thereof, see Background Memorandum, supra note 36. While the transit fee was later canceled, the Canadian government is under increasing pressure from its fishing industry to get tough with the United States. As Dennis Brown of the Canadian United Fishermen and Allied Workers' Union put it, "I think he's a good minister [Fisheries and Oceans Minister Brian Tobin] and he wants to do the right thing. But it won't work if we're just going to be mealy mouthed and believe in the nebulous mediation process." Hall, supra note 4, at B3. As the pressure to act has grown, so has the rhetoric. Paddy Greene of the Prince Rupert-based British Columbia Fisheries Survival Coalition summed up the call to action: "There is a lot of feeling we've got to hit back somehow, that we can't just knuckle under rather than risk offending the U.S." Nickerson, supra note 4, at 2. Dennis Brown, a Canadian commissioner with the Pacific Salmon Commission added, "[w]e really have to stand up for ourselves as a country, or we are going to lose it all. We are taking on the world's most powerful country--you have to be realistic here. But dammit somebody's got to take a tough line." Id. (75) A byline in the Seattle Post-Intelligencer indicated the unacceptability of the current effort. Joel Connelly, Canadians Are Likely to Spurn New U.S. Proposal on Salmon, Seattle Post-Intelligencer, Feb. 25, 1995, at A1. (76) Putnam, supra note 72, at 433-35. Game theory is a rather broad description of the studies and models developed by academics to explain the behavior of individuals in group problem solving situations. The two classic roots for much of this scholarly work are the "Prisoner's Dilemma" and Hardin's "Tragedy of the Commons." See Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968), reprinted in Robert M. Chute, Environmental Insight 6 (1971). In both of these instances it was noted that individuals acting within a group will often take actions that are ultimately destructive to both their own and the group's interests due to the fear that other members of the group will not cooperate for the benefit of all. Studies into many aspects of human interactions, including international negotiations, within this academic framework have been undertaken both to identify the situations that will lead to "Tragedies of the Commons" and uncooperative behavior, and also to present suggestions for how to avoid those outcomes. The discussion that follows is primarily concerned with this second point. (77) As one recent article points out, "most . . . studies, following the Realist tradition, treat nation-states as unitary actors. . . . In reality, foreign policy decisions are the result of political processes within nation-states. . . . " Keisuke Iida, When and How Do Domestic Constraints Matter?, 37 J. Conflict Resol. 403, 403-04 (1993). (78) The case studies and their authors are as follows: the Fashoda Crisis of 1898 by Kenneth Fuchs; The Morocco Crisis of 1905-06 by Glenn Snyder; the Morocco Crisis of 1911 by Charles Lockhart; the 1914 Crisis by Dennis Yena, the Ruhr Crisis of 1923 by Paul Guinn; the Munich Crisis of 1938 by James Smith; the Iran Crisis of 1946 by Charles Planck; the Berlin Blockade of 1948 by Clark Murdock; the Suez Crisis of 1956 by Kenneth Fuchs; the Berlin Crisis of 1958-61 by Paul Diesing; the Quemoy Crisis of 1958 by Jane Holland; the Lebanon Crisis of 1958 by William Stover; and the Cuba Crisis of 1962 by Charles Lockhart. Glenn H. Snyder & Paul Diesing, Conflict Among Nations: Bargaining, Decision Making, and System Structure in International Crises at xii (1977). (79) Snyder & Diesing, supra note 78, at 510-30 (1977).
(80) Id. This sentiment is echoed by Robert Putnam, who summarized several other studies in this area. Putnam, supra note 72, at 43435.
(81) Of course, to argue that domestic politics play a role in international negotiations is not to argue that they are the only element that matters. Kenneth Waltz noted:
It is not possible to understand world politics simply by looking inside of states. .
Each state arrives at policies and decides on actions according to its own internal processes, but
its decisions are shaped by the very presence of other states as well as by interactions with them.
When and how internal forces find external expression, if they do, cannot be explained in terms
of the interacting parties if the situation in which they act and interact constrains them from
some actions, disposes them toward others, and affects the outcomes of their interactions. Kenneth R. Waltz, Reductionist and Systemic Theories, in Neorealism and its Critics 47, 52-53 (Robert O. Keohane ea., 1986); see also Frederick W. Mayer, Managing Domestic Differences in International Negotiations: The Strategic Use of Internal Side-Payments, 46 Int'l Org. 793, 794 (1992) (discussing the role of international politics on foreign policy).
(82) Putnam, supra note 72, at 437. (83) Id. at 438, 440.
(84) Putnam briefly digresses at this point to offer another important insight. The prospect of failed ratification of the international agreement by domestic decision makers raises the specter of involuntary defection. Game theorists are familiar with the problem of voluntary defection, particularly in the context of prisoner's-dilemma-type situations, which tend to undermine the likelihood of cooperation. Recent work by Robert Axelrod and others suggest, however, that even in an anarchic, "self-help" world, cooperation can be significantly increased by either the likelihood of future negotiations ("the shadow of the future") or by simply increasing communication. See, e.g., Robert Axelrod, The Evolution of Cooperation
(1984); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (1984). Involuntary defection, however, is not subject to these considerations and the literature about the dilemmas of collective action may be more applicable. Putnam, supra note 72, at 438-39. For a general discussion of the effects of future negotiations on cooperation, see Axelrod, supra, 126-32. For a discussion of the effects of communication on cooperation in dilemma games, see Elinor Ostrom et al., Covenants With and Without a Sword: Self-Governance is Possible, in The Political Economy of Customs and Culture 127, 127-56 (Terry L. Anderson & Randy T. Simmons eds., 1993). (85) Thomas C. Schelling, The Strategy of Conflict 19-28 (1960), quoted in Putnam, supra note 72, at 440.
(86) Putnam, supra note 72, at 441. Another variable that affects the ability of the negotiator to manipulate the Level I agreement is the potential for the direct modification of the size of the win-set by the negotiator. In other words, if the negotiator can manipulate the size of the win-set directly, she may have another advantage in the negotiations. This ability, however, does not alter the basic premise that the relative size of the win-sets may allow the negotiator to manipulate the Level I agreement ultimately reached. Id. (87) Iida, supra note 77, at 410.
(88) Frederick Mayer also takes issue with Putnam's claim that the larger the win-set the more likely the positive outcome of international negotiations. Mayer, supra note 81, at 79798 n.9. He notes that Putnam believes that the larger the win-set the less bargaining strength the international negotiator enjoys. Id. Mayer points out that this can be a hindrance to the development of international agreement if both parties are intent on securing the most advantageous outcome within the context of the larger win-sets. Id. If there is a smaller win-set, whose location is well known, agreement may be facilitated because there is little advantage to additional bargaining. Id.
(89) Iida, supra note 77, at 417.
(90) Under domestic asymmetric information in which the negotiators are uncertain of their own domestic constraints, successful international agreement may be made more difficult because of involuntary defections. Id.
(91) The effects of asymmetric international information about domestic constraints can be a bargaining advantage. If the international negotiator is uncertain about the domestic constraints on her counterpart, she is not in a very strong position. Iida, however, points out that assuming that the win-sets intersect somewhere, this situation will not lead to the failure of agreement ratification. Id. at 416. Rather this kind of uncertainty will only lead to delay in reaching agreement. Id.
(92) Jongryn Mo, The Logic of Two-Level Games with Endogenous Domestic Coalitions, 38 J. Conflict Resol. 402, 412-13 (1994). Professor Mo explains this effect by focusing on the interaction of several domestic groups, denoted D1, D2, and D3. When D3 is granted a veto, it can only increase the costs of agreement to the foreign state. When D3's win-set is the least expensive to the foreign state, the existence of the veto does not affect the outcome because the agreement will be within D3's range of acceptable outcomes. When, however, D3's win-set is not the least expensive, the foreign state is forced to either abandon the agreement or accept a less favorable agreement by constructing a coalition of domestic groups that includes the majority, be it D1 or D2 that falls within D3's win-set. Id. (93) Id. at 413.
(94) The existence of a veto magnifies the effect of uncertainty and greatly increases the possibility of involuntary defections. Any mistakes made with regard to the range of acceptable solutions of the group with the veto, regardless of the domestic majority coalition's winset, will result in involuntary defection as the veto is exercised. Iida hints at this by suggesting that domestic constraints under a regime of incomplete domestic information will lead to involuntary defections with some positive probability. Iida, supra note 77, at 418. It therefore follows that when the constraints are tightened, as occurs with the inclusion of a veto in the domestic political mix, then the probability of involuntary defections will increase. See Mo, supra note 92, at 413.
(95) Mo, supra note 92, at 413. This suggests that a nondemocratic solution to international negotiations is possible. By giving one group a veto, the agreement must be acceptable to not only the majority but also the group with the veto. It allows one group, which may or may not be within the majority coalition, to dictate the outcome of the process. Id. (96) This is important for purposes of comparison. This first figure is based on the traditional realist view of international negotiations where the state parties are "black boxes" without internal conflict. Figures 1 through 6 are adapted from Mayer, supra note 81, 798-802. (97) Indifference curves represent the locations within issue space where the balance between X and Y yields the same relative marginal utility to the respective countries. The indifference curves are represented by light lines in Figure 1. The curvature in the indifference curves reflects the decreasing marginal utility for higher levels of X and Y and the preference for one particular issue outcome (A prefers higher X and lower Y and, therefore, A's indifference curves will favor ever greater increases in X as Y increases). While a full discussion of the interaction between indifference curves, which define the efficient contract curve, which is the limit of Pareto-improvement on the alternative, is beyond the scope of the present investigation, it is important to have a basic understanding of these components to fully grasp the effects of internal conflict. See id. at 798-99. (98) Id. at 799. Mayer compares the bargaining set to the "zone of possible agreement" defined by Howard Raiffa See Howard Raiffa, The Art and Science of Negotiation (1960). Both the bargaining set and the "zone of possible agreement" define what Putnam saw as the intersection of the win-sets of the parties in international negotiations. See Putnam, supra note 72, at 438. (99) Elinor Ostrom, Governing The Commons: The Evolution of Institutions for Collective Action (1990).
(100) Mayer, supra note 81, at 799; see John F. Nash, The Bargaining Problem, 18 Econometrica 155, 15542 (1950); John F. Nash, Two-Person Cooperative Games, 21 Econometrica 129, 12940 (1953).
(101) Mayer, supra note 81, at 800-01.
(103) This is a reassertion of the point made above that the more constrained the international negotiator, the better the bargaining position. See supra note 82 and accompanying text.
(104) Mayer, supra note 81, at 801.
(105) For a more comprehensive discussion of the Nash solution, see text accompanying supra note 100.
(106) In other words, if the constraints are such that the bargain cannot proceed to the efficient frontier of unconstrained actors A and B, then the bargaining advantages gained by the constraint are outweighed by the losses in efficiency. Mayer, supra note 81, at 801-02.
(107) Id. at 801.
(109) Id. at 804.
(110) Side-payments are usually "made in the coin of a nonmonetary issued linked to the internal negotiation." Id. at 806. Actual money is seldom used. Id.
(111) Id. at 806. The existence of side-payment opportunities may or may not be desirable from the standpoint of the divided party. Ultimately it depends upon whether the internal division was a net benefit or net liability in the external bargaining. Id.
(112) Mayer uses the example of linking the acceptance of the first Strategic Arms Limitation Treaty (SALT I) with the development of new Trident submarines. Mayer, supra note 81, at 806. In this case the submarines were used as an internal side-payment to the Joint Chiefs of Staff to secure their support for the Treaty. Compared with the potential use of money--the clearest way to alter a party's bargaining set-side-payments "in the coin of a nonmonetary issue linked to the internal negotiation" tend to be imperfect mechanisms for the transfer of benefits. Id. For example, the Trident may have been an overly large payment. Further, the Trident had effects outside of the Joint Chiefs and the President, and, as a result, benefits or costs may have accrued to other parties to the internal bargaining. Finally, the Trident may have had net benefits or costs to the country as a whole. In this case, one scenario proposed by Mayer results in the loss of external distributional gains due to the relaxation in the domestic constraints. The ability of the divided party with side-payments to reach a more efficient solution could be more than outweighed by the loss of the ability of that party to claim benefits in the external bargain. Indeed, Mayer suggests that if the value added by the internal side-payment is large enough, the divided party may actually accept outcomes worse than the no agreement outcome. This change is potentially exploitable by the other party to the external negotiation. Id. at 808-13. (113) The addition of issues to the negotiations, however, does raise the complexity of the negotiations. This runs the risk of delaying or paralyzing the negotiations due to informational or analytical overload and the fear of unintended consequences. James K. Sebenius, Negotiation Arithmetic: Adding and Subtracting Issues and Parties, 37 Int'l Org. 281, 306 (1983). (114) Id. James Sebenius was not dealing with the use of side-payments to domestic constituents to expand the international bargaining set; rather, he was working in the idealized world of unitary international actors. His analysis remains valid on the domestic level if the negotiations that occur within a state are viewed as a separate set of negotiations. Because Sebenius does not directly address the effect of domestic politics on international negotiations, however, the question of incomplete information of the domestic constraints of the opposite party in international negotiations is not directly considered. He does point out that expanding the negotiations through linkage may have unforeseen effects, including increased complexity, unforeseen interrelationships, and organizational and informational requirements. Id. at 315. It follows from the works previously cited that if any action is taken that increases the size of the international bargaining set of a particular country, that state loses leverage as the opposing international negotiator gains greater knowledge of the expanded bargaining set. See supra note 82 and accompanying text. (115) Mayer, supra note 81, at 809. In studies conducted by David Lax and Frederick Mayer in a classroom setting, divided parties were found to be more effective at gaining value against unitary actors than unitary parties. In these experiments, however, the internal side-payments were completely unknown to the external player. Mayer suggests that if the internal negotiations had been more transparent, then the divided parties may not have been as effective in claiming value in the external negotiations. Id.
(116) See supra note 81 and accompanying text.
(117) See supra note 84 and accompanying text.
(118) See supra note 90 and accompanying text.
(119) Mayer, supra note 81, at 801.
(120) This is exactly what happened during the summer of 1995 between the United States and Canada with regard to chinook interceptions. See infra notes 196-200 and accompanying text. (121) The Pacific Salmon Commission is charged with making recommendations and decisions concerning the operation of the fisheries of both Parties. Article IV provides: "In order to facilitate the implementation [of the Treaty] . . . [t]he Commission shall review the reports of the Panels and shall recommend fishery regimes to the Parties." Pacific Salmon Treaty, supra note 14, at art. IV(5).
(122) Id. art. II.
(123) Id. art. II(6).
(124) See supra note 12 and accompanying text.
(125) The Future of the Pacific Salmon Treaty and Its Likelihood of Achieving the Goals of Conserving Pacific Salmon Stocks in a Manner Equitable to Both Canada and the United States: Hearing Before the Subcomm. on Environment & Natural Resources Joint with the Subcomm. on Fisheries Management of the House Comm. on Merchant Marine & Fisheries, 103d Cong., 2d Sess. 55 (1994)
(statement of Charles P. Meacham, Deputy Commissioner, Alaska Department of Fish and Game) [hereinafter Meacham Testimony]. (126) Turner Testimony, supra note 12, at 70. (127) Ron Judd & Marla Williams, Canada to Levy Fees on Fishing, Commercial U.S. Ships May Pay Thousands, Seattle Times, June 9, 1995, at A1. (128) Scott Sonner, U.S. Offers New Split on Salmon Revised Treaty Could Also Pay Preparations to Canada, Anchorage Daily News, Dec. 23, 1994, at D7. (129) Id.
(130) The ceilings are located in Annex IV of the Pacific Salmon Treaty. Pacific Salmon Treaty, supra note 14.
(131) Sonner, supra note 128, at D7.
(132) Charles Meacham, Deputy Commissioner of the Alaska Department of Fish and Game, in his testimony to Congress, takes issue with one Canadian position, that being the ownership of salmon born in a Canadian river or hatchery. He claims that because the salmon enter Alaskan waters early in their lives and compete with U.S. salmon for resources, they should be viewed as a shared stock. Meacham Testimony, supra note 125, at 55. Clearly, under this interpretation of jurisdiction over salmon stocks, the interception problem is significantly reduced. If the salmon originating in Canadian rivers are not counted as such, the incidental catch by southeast Alaska fisheries does not constitute an interception at all. While it is unnecessary to address the merits (or lack thereof) of this claim, it further magnifies the potential domestic conflict by minimizing the international problem from the perspective of Alaska. See id. at 55. Adding to this debate, the question of over-grazing of the ocean by hatchery salmon has recently caused concern in the context of shrinking salmon sizes. It is possible that the salmon-sustaining resources of the Pacific are being strained by aggressive hatchery programs. Rob Taylor, Salmon Getting Smaller, Problem May Stretch Across North Pacific, Seattle Post-Intelligencer, Feb. 2, 1995, at A1.
(133) The implementing legislation is found at 16 U.S.C. [subsections] 3631-3644 (1994). (134) Id. [sections] 3632(a)
(136) Id. [sections] 3632(g)(1)
(138) This irks Canada greatly. Brian Tobin, Canada's Minister of Fisheries and Oceans, has called the "veto on fishing plans" given to each region a "jurisdictional difficulty on the American side." Brian Tobin, Sharing the Salmon, Treaty Promised Equity That Has Not Been Realized, Seattle Post-Intelligencer, July 17, 1994, at E1. (139) Twitchell, supra note 17, at 413. (140) Id.
(141) 16 U.S.C. [subsections] 1531-1544 (1994). The decimation of the salmon in Washington and Oregon led to the complete closure of most salmon fishing in 1994. At the same time, while the U.S. fisheries off Alaska are generally healthy, they are also intercepting huge numbers of Canadian fish. Doughton, supra note 74, at A1. (142) Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619 (Nov. 20, 1991)
(codified at 50 C.F.R. pt. 222 (1994)) (NMFS acted pursuant to its authority under 16 U.S.C. [sections] 1533). (143) Tom Kenworthy, U.S. Designates Sockeye Salmon an Endangered Species, Wash. Post, Nov. 15, 1991, at A1.
(144) 56 Fed. Reg. 58,619, 58,619 (Nov. 20, 1991) (codified at 50 C.F.R. pt. 222 (1994)) (identifying hydropower development, water withdrawal and diversions, water storage, harvest, predation, and inadequate regulatory mechanisms as factors contributing to species decline). (145) Kenworthy, supra note 143, at A1. The journey of the Snake River salmon is epic in proportion. The journey begins in the Pacific and ends after 900 miles in an alpine lake in Idaho's Sawtooth Mountains. Not only have the salmon suffered, but those people who rely on them for cultural and economic reasons have suffered as well. As one member of the Shoshone-Bannock Indian tribe put it, "[w]e're not only fighting for the survival of the fish but to continue the identity of our culture." Margaret Haberman, Salmon-Matter of Tradition, Gannett News Serv., Feb. 6, 1991. (146) Kenworthy, supra note 143, at A1. According to Ed Chaney, an Idaho natural resources consultant who has written a number of regional plans to salvage the salmon runs, the sockeye designation "is really a stalking horse for other salmon runs we still have a chance to save." Id. (quoting Ed Chaney). This prediction was realized in 1994 when spring/ summer and fall Snake River chinook salmon were added to the endangered species list. Endangered and Threatened Species; Status of Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 42,529 (Aug. 18, 1994) (codified at 50 C.F.R. pt. 222 (1994)); see Northwest Power Planning Council, 1994 Columbia River Basin Fish and Wildlife Program, at 1-1 (1994). (147) J.C. Ryan, Northwest Environment Watch: State of the Northwest Report No. 1 (Oct. 1994).
(148) Id. at 62.
(149) To put the listings in historical perspective, NMFS listed the Snake River sockeye as endangered on November 20, 1991. See 56 Fed. Reg. 58,619
(Nov. 20, 1991) (codified at 50 C.F.R. pt. 222 (1994)). NMFS listed the spring/summer and fall chinook salmon as threatened on April 22, 1992. See Endangered and Threatened Species; Threatened Status for Snake River Spring/Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,654 (April 22, 1992) (codified at 50 C.F.R. pt. 222
(1994)). Then, on August 18, 1994, NMFS took what amounted to emergency action and listed both the spring/ summer and fall chinook as endangered species. See 59 Fed Reg. 42,529 (Aug. 18, 1994) (codified at 50 C.F.R. pt. 222 (1994)). These listing announcements cited hydropower development, water withdrawal and diversions, water storage, harvest, and inadequate regulatory mechanisms as significant factors in the decline of the species. 56 Fed. Reg. at 58,619; 57 Fed. Reg. at 14,654; 59 Fed. Reg. at 42,530.
(150) The Ninth Circuit held that if the proposed actions "irreversibly and irretrievably" committed resources, then the U.S. Forest Service should be enjoined from ongoing activities until it completed the consultation procedures required by section 7 of the ESA. Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1051 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793
(1995). Subsequently, the court issued injunctions halting activities in the Boise, Challis, Nez Perce, Payette, Salmon, and Sawtooth National Forests in Idaho. Pacific Rivers Council v. Thomas, 1995 WL 23997 (D. Idaho 1995).
(151) The U.S. Forest Service is charged with developing management plans for all units of the National Forest System under the Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476
(codified as amended at 16 U.S.C. [subsections] 1600-1614 (1994)). NMFS, in part, is implementing the Endangered Species Act, 16 U.S.C. [subsections] 1531-1544 (1994). In one case involving challenges to the Columbia River Basin Fish and Wildlife Program, more than 30 organizations, government agencies, and states were represented. See Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994), cert. denied, 116 S. Ct. 50 (1995). Further, agency suits are not constrained to private individuals, as agencies have even sued other agencies. See Idaho Dep't of Fish Game v. National Marine Fisheries Serv., 850 F. Supp 886 (D. Or. 1994). (152) In the two cases of Northwest Resource Information Center v. Northwest Power Planning Council, 35 F.3d at 1395, and Idaho Department of Fish & Game v. National Marine Fisheries Service, 850 F. Supp. at 900, federal courts held that despite their attempts to restore depleted salmon runs, the agencies had violated the law by not acting fast enough or going far enough to restore these runs. While the implications of these two landmark decisions are not yet fully understood, one key theme is clear: Federal agencies will have to give significant deference to scientific information from outside sources. See Michael C. Blumm, Columbia Basin Salmon and the Courts: Reviving the Parity Promise, 25 Envtl. L. 351, 355-58 (1995)
(153) Blumm, supra note 152, at 355-58. In March 1995, NMFS issued a Draft Salmon Recovery Plan for the Snake River. Its relevance to the international situation is still unclear, but there is little attention given in the plan to the interceptions of Columbia-River-Basin-bound chinook off the coast of Vancouver Island. National Marine Fisheries Serv., U.S. Dep't of Commerce, Proposed Recovery Plan for Snake River Salmon, A Summary 11-12 (Mar. 1995).
(154) The Northwest Power Act created NPPC in 1980. Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), Pub. L. No. 96-501, 94 Stat. 2697 (codified as amended at 16 U.S.C. [subsections] 837, 838i, 838k, 839 (1994)). The Northwest Power Planning Council was created, in part, to give the region a forum to design and implement a program for the protection of all anadromous and resident fish and wildlife in the Columbia Basin. The groundwork for the rebuilding of salmon runs in the region began in 1984 with the adoption of the first Columbia River Basin Fish and Wildlife Program, which has been amended several times leading up to the 1994 report. In addition to the Council's efforts, following the 1990 Salmon Summit convened by the region's governors and Senator Mark Hatfield
(R-Or.), the region undertook several short-term measures that bought some time for the salmon. Northwest Power Planning Council, supra note 146, at 1-2 through 1-5. (155) Northwest Power Planning Council, supra note 146, at 4-4.
(158) Peter Gillins, U.S. May Propose More Salmon Protection, Utilities Oppose Move, Reuters Bus. Rep., June 6, 1991, available in LEXIS, Nexis Library, REUBUS File. The utilities are also challenging the assumption that the primary problem facing the salmon is the dams. They assert that the problems can be solved with current measures employed by utilities, which have spent about $1 billion over the last decade to protect the salmon runs, and a more forceful approach to the driftnet problem. See Kenworthy, supra note 143, at A1; Gillins, supra; National Marine Fisheries Service Calls for Regional Salmon Solution, PR Newswire, Aug. 15, 1991, available in LEXIS, News Library, PRNEWS File. (159) Gillins, supra note 158.
(160) Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1378 (9th Cir. 1994). As the Northwest Power Act provides, the Council's fish and wildlife program must consist of measures to "protect, mitigate and enhance fish and wildlife affected by the development, operation and management of [hydroelectric] facilities while assuring the Pacific Northwest an adequate, efficient, economical and reliable power supply." 16 U.S.C. [sections] 839b(h)(5) (1994).
(161) Northwest Power Planning Council, supra note 146, at B-19.
(162) Id. The proposal also includes management changes for 1995. If the proposed 1995 steps are undertaken, and no others are later adopted, the average rate increase for the 20 years will be 4% per year. Id.
(163) In addition to the power interests, there are a significant number of farmers who depend on the Columbia River for irrigation water. Under the various salmon recovery plans, water flows in the River will be increased to allow smolts to reach the Pacific more quickly. The increased flows mean that there is less water for irrigation projects throughout the entire region. gingham County, Idaho, in a desperate attempt to protect its water supply, recently passed a resolution barring the export of Snake River water. The Associated Press, County: Stop Giving Our Water to Salmon, Salt Lake Trib., Feb. 7, 1995, at A7. While the resolution will have little effect, gingham County Commission Chairman Dale Arave summarized the county's predicament: "Water is our economy's base. It's our whole life." Id. (164) For example, the disruptive effects of the decision to save the northern spotted owl might be small in comparison to the effects of attempts to save the salmon runs of the Columbia. Gillins, supra note 158. A recent poll commissioned by Columbia River dam operators found strong public support for salmon recovery, regardless of price. Joel Connelly, Poll Finds Support for Saving Salmon, Seattle Post-Intelligencer, Mar. 28, 1995, at A1, reprinted in S.F. Examiner, Mar. 28, 1995, at A10. The survey also found that salmon elicit more emotional responses and greater support than the spotted owl. Id. (165) See Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 Envtl. L. 657 (1991) (discussing the Northwest Power Act and efforts to restore the Columbia River); see also Kai N. Lee, Rebuilding Confidence: Salmon, Science, and Law in the Columbia Basin, 21 Envtl. L. 745 (1991).
(166) The situation surrounding the chinook harvest in southeast Alaska during the summer of 1995 is also a classic example of involuntary defection. Early in that summer, Washington, Oregon, and the Treaty Indians entered into negotiations with Canada to set American chinook catch levels based upon the model used by the Chinook Technical Committee of the Pacific Salmon Commission, which was used by Canada to set its own catch ceilings. Judge Closes Fishery; Southeast Kings in Dispute, Anchorage Daily News, Aug. 12, 1995, at A1. The catch limits were unacceptable to Alaska, and it set its own limits and vetoed the catch limits suggested by the Chinook Technical Committee. George Tibbits, Judge Asked to Extend Chinook Ban/Alaska Cheating, Other States Claim, News Trib. (Tacoma, Wash.), Sep. 2, 1995, at B5. (167) Confederated Tribes & Bands of the Yakama Indian Nation v. Baldrige, No. 80-342, 1995 U.S. Dist. LEXIS 13206, at *24 (W.D. Wash. Sept. 7, 1995).
(168) The Alaskan model allowed a catch of between 190,000 and 230,000 chinook, while the model used by the Chinook Technical Committee of the Pacific Salmon Commission and supported by Washington, Oregon, the Treaty Indians, and Canada allowed for a catch of only 140,000 chinook. Id. at *25.
(169) Id. at *25 n.6.
(170) Id. at *19-*20.
(171) Id. at *46-*47. The court based its decision not on the Pacific Salmon Treaty or the implementing legislation of the U.S. Section, but rather on the stipulation agreement made between Alaska and the Treaty Indians in 1985. Id. at *45; see supra note 65. (172) The court's willingness to interfere with the operation of the Pacific Salmon Commission raises serious questions as to the validity of the Treaty. The Treaty itself requires consensus between the Canadian and U.S. sections before any recommendation is made. See supra note 67. The court, by enforcing a recommendation made by a technical committee over Alaska's valid use of its veto power, has potentially invalidated the entire process established by the Treaty and the U.S. implementing legislation. Regardless of the ultimate validity of this assertion, however, the court's actions further complicate the domestic situation, creating an even greater amount of uncertainty. (173) Northwest Power Planning Council, Amendments to the Columbia River Basin Fish and Wildlife Program to Improve Salmon and Steelhead Survival and Protect Non-Ocean Going Fish (Dec. 14, 1994).
(174) Id . at 1. While the Northwest Planning Council has remained somewhat diplomatic on this issue, the press in the Northwest has been less so. As one report put it, saving the salmon depends on, among other things, ending "Canadian interceptions of Pacific Northwest salmon off Vancouver Island, even if it means curbing American interception of Canadian salmon around the San Juan Islands and Alaska" Bill Deitrich, Running Out Of Time--Current Crises "Is No Surprise" to Scientists, Seattle Times, Apr. 6, 1994, at A6. Unfortunately, the impasse has thus far avoided resolution. See supra note 4.
(175) This last point is especially true because of the recent court cases that struck down parts of the plans because they did not go far enough or fast enough. See supra notes 150-54 and accompanying text. (176) Alaska takes great pride in its fishery management program. In his testimony to Congress, Charles Meacham, Alaska's Commissioner for the Pacific Salmon Commission and Deputy Commissioner for Fisheries for the Alaska Department of Fish and Game, reported:
In 1959, when the State of Alaska assumed responsibility for managing its
fisheries, salmon runs had been drastically declining for two decades and were
in serious trouble due to Federal mismanagement and associated overfishing.
With statehood, local fishery managers were encouraged to make tough
management decisions to forego immediate harvest and dedicate fish to spawning
escapements. Protection of critical salmon habitat was identified then and
continues today to be the foundation upon which this valuable resource
Alaska has successfully rebuilt these depressed runs to the healthy
levels which exist today. Alaska's salmon management has been described by
W.F. Royce, an eminent fishery scientist, as "a model fishery management
Meacham Testimony, supra note 125, at 9 (quoting W.F. Royce). (177) In an interview, Meacham summed up this sentiment by stating, "our perspective up here is that the folks down in the South made a conscious decision. . . . Those choices resulted in a loss of fish, and a loss of contribution to the harvest for Canada, yet oddly enough, Alaska is being blamed for this." Doughton, supra note 74, at A1 (quoting Meacham).
(178) Connelly, supra note 75, at A8 (quoting Representative Young). (179) Alaska objected to the State Department's 1993 determination that the Pacific Salmon Commission had not developed a program "in any effective way" to achieve an adequate rebuilding program for chinook salmon stocks on a coastwide basis by 1998 and was in "jeopardy" of not meeting Treaty obligations. Background Memorandum, supra note 36, at 2. This determination is the first step in the process by which the federal government could step in and directly affect the negotiations taking place within the Pacific Salmon Commission. Alaska claimed that the determination was based on an ambiguous definition of rebuilding, the standards were not being applied consistently, and the procedure followed by the State Department in making its determination was questionable. Id. at 2; see Twitchell, supra note 17, at 413. This position has also contributed to the tensions between Washington and Oregon on one hand and Alaska on the other. Interestingly, in his testimony to Congress, Meacham claimed that only 6% of the Alaska harvest of chinook comes from stocks classified by the Chinook Technical Committee as "not rebuilding." Meacham Testimony, supra note 125, at 3. There are significant questions, however, as to the overall status of the chinook taken in the southeast Alaskan fisheries. The Chinook Technical Committee Report from 1992, while remaining optimistic for the overall recovery of most chinook runs, classified 50% of the runs taken in Alaskan fisheries as "Probably Not Rebuilding" or "Not Rebuilding. Pacific Salmon Committee, Joint Chinook Technical Committee 1992 Annual Report, Executive Summary, at xiii
(1993). The difficulties between Alaska and the Federal Government have continued and perhaps intensified during 1995. For example, Alaska rebuffed the efforts of Vice-President Al Gore to negotiate a resolution to the chinook harvest impasse. Hall, supra note 4, at B3.
(180) Meacham Testimony, supra note 125, at 11.
(181) As one salmon troller said, "Alaska is feeding the whole commercial salmon industry on the West Coast and they're all trashing Alaska . . . Things are going to get tough up here. . . . We're the only ones with anything to give up." Doughton, supra note 74, at A1 (quoting Gary Slaven).
(182) See supra note 166 and accompanying text.
(183) See supra note 19 and accompanying text.
(184) In addition to the political problem of shutting down the sockeye fishery, which Canada accomplished unilaterally by the late season opening for Fraser River sockeye in the summer of 1994, the Canadians continue to insist on reductions in the interception of both the Fraser River sockeye and pink salmon fisheries and in southeast Alaska fisheries. See supra note 1; Doughton, supra note 74, at A1.
(185) 16 U.S.C. [subsections] 3631(i), 3632 (1994); see also supra notes 135, 140 and accompanying text.
(186) See supra note 65 and accompanying text.
(187) See Background Memorandum, supra note 36. Alaska left no doubt that its support of the Treaty was dependent on the Treaty Indians agreeing not to press their claim against Alaska. See David Whitney, Tribal Catch Dispute Last Key Hurdle for Pacific Salmon Treaty, The Oregonian, Jan. 31, 1985, at G2. As a Seattle newspaper later reported, while Alaska has "generally supported the treaty, northern fishermen demanded a promise from Washington tribes that they wouldn't try to extend the Boldt ruling to fish caught in Alaska." U.S.-Canada Salmon Pact Passes Honse, Alaska Hurdles, Seattle Times, Feb. 28, 1985, at A13. The States of Alaska, Washington, and Oregon, along with the federal government and the Indian tribes, entered into a stipulated resolution to ongoing litigation regarding Alaskan catches of northwest chinook in 1985. Confederated Tribes & Bands of the Yakama Indian Nation v. Baldrige, 605 F. Supp. 833, 834 (W.D. Wash. 1985). The stipulated agreement has a decision-forcing mechanism that must be followed by the U.S. Section to the Pacific Salmon Commission that requires the closure of all major commercial and recreational chinook fisheries if no agreement on chinook harvest allocation can be reached Id. at 836. The mechanism, however, only applies after the completion of a Chinook Rebuilding Program under the Treaty, id. at 835, which at the earliest will not be completed before 1998. See supra note 58 and accompanying text.
(188) While it is impossible and premature to speculate on the merits of the litigation against Alaska,
courts have held that fishing activities outside of tribal fishing areas of
the Pacific Northwest Tribes must be regulated in such a manner as to permit a
sufficient return of the fishery resource to tribal fish areas so that these
tribes may have a meaningful opportunity to harvest their share of the
Parravano v. Babbitt, 861 F. Supp. 914, 924 (N.D. Cal. 1994) (citing, as an example, Hoh Indian Tribe v. State of Washington, 522 F. Supp. 683 (W.D. Wash. 1981)). These cases imply that the Indians may be able to force the Alaskan management agencies to take actions sufficient to allow enough salmon to return to Washington and Oregon for the tribes to fulfill their catch requirements. The interesting question is whether the Indians could force Alaska to reduce interceptions of unrelated salmon stocks to get Canada to reduce interceptions of Columbia River bound chinook. Alaska, given its reluctance to accept federal management of salmon, would surely be strongly opposed to court management of the salmon. The first salvo in the application of the Boldt Decision to the management of the Alaskan fisheries is awaiting trial for December 1995. This case threatens to further complicate the situation, potentially disrupting the current regime. Interview with Phil Katzen, Evergreen Legal Services, in Seattle, Wash. (Apr. 18, 1995).
(189) Interview with Phil Katzen, supra note 188. This assertion is based in part on the interpretation given to Indian rights under their original treaties with the United States in 1854 and 1855. See Washington v. Washington State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658, 661, modified, 444 U.S. 816 (1979). To extinguish the last group of conflicting claims to lands lying west of the Cascade Mountains and north of the Columbia River, the United States entered into a series of treaties with the local tribes. Id. at 662 (citing Treaty of Medicine Creek, Dec. 26, 1854, 10 Stat. 1132; Treaty of Point Elliot, Jan. 22, 1855, 12 Stat. 927; Treaty of Point No Point, Jan. 26, 1855, 12 Stat. 933; Treaty of Neah Bay, Jan. 31, 1855, 12 Stat. 939; Treaty with the Yakamas, June 9, 1855, 12 Stat. 951; and Treaty of Olympia, July 1, 1855, and Jan. 25, 1856, 12 Stat. 971). The tribes relinquished most of their lands in exchange for monetary payments, small reservations, and, importantly, the "right of taking fish, at all usual and accustomed grounds and stations. . . in common with all citizens of the Territory." Id. at 662 (citing Treaty of Medicine Creek, 10 Stat. 1132, 1133).
(190) See Mo, supra note 92, at 415.
(191) Mayer, supra note 81, at 801.
(192) In other words, the U.S. section must have a bargaining set or a range of acceptable negotiated outcomes.
(193) See supra note 106 and accompanying text.
(194) This is an extension of Professor Jongryn Mo's assertion that the existence of a veto requires negotiators to seek out the domestic coalition that includes all the groups with a veto. The veto therefore limits the number of coalitions possible and increases the complicated task of locating and defining the majority coalition. Mo, supra note 92, at 413. (195) Confederated Tribes & Bands of the Yakama Nation v. Baldrige, 898 F. Supp. 1477 (W.D. Wash. 1995); Judge Closes Fishery, supra note 166, at A1; see also supra note 167 and accompanying text.
(196) Judge Closes Fishery supra note 166 at A1.
(197) Confederated Tribes & Bands of the Yakama Nation v. Baldrige, 898 F. Supp. 1477, 1483-87 (W.D. Wash. 1995).
(198) Governor Tony Knowles (D) was quoted as saying, "[w]e're looking for real solutions to these salmon issues, and they're fishing for red herrings." Id. (199) As a recent editorial reads, "[s]omething is clearly amiss when Alaska is able to sabotage an important agreement between the United States and Canada The Pacific Salmon Commission, where the U.S. position is formulated, needs to be restructured so that a single state can no longer impose its agenda on the process." Alaska Sabotages the Salmon Treaty, News Trib. (Tacoma, Wash.), July 12, 1995, at A12; see also supra note 171.
(200) See supra note 61 and accompanying text.
(201) See supra notes 141-51 and accompanying text.
(202) This discussion and graphical representation are adopted from Sebenius, supra note 113, at 291-92.
(204) This is a direct result of the transparency of the U.S. position absent the Alaskan veto. If the majority coalition of the States of Washington and Oregon and the Indian tribes is sufficient to get U.S. acceptance within the Pacific Salmon Commission, Canada is aware of the legal requirements placed on this group by U.S. law and can exploit this information. (205) The Canadians have filed briefs in support of the positions taken by the Treaty Indians, Washington, and Oregon, and they have maintained counsel in the case. Tribes Ask Judge to End Alaska Salmon Season, Reuters North American News, Aug. 30, 1995, available in LEXIS, Nexis Library, REUNA File; see supra note 165 and accompanying text. (206) Minister of Fisheries and Oceans, Brian Tobin, stated that he is "increasingly concerned that the U.S. government will not be able to resolve this dispute because of the inevitable objections of one regional group or another in the United States. . . . It's a flaw in the U.S. system that allows a single-interest group . . . a single state to hijack the outcome." Hall, supra note 4, at B3.
(207) Canada slashed its harvest of chinook salmon in 1995 from 385,000 fish to 203,000, despite the collapse of talks within the Pacific Salmon Commission. Nickerson, supra note 4, at 2. This occurred despite the fact that Canada had reached an agreement with the Treaty Indians, Washington, and Oregon, which was vetoed within the Pacific Salmon Commission by Alaska. Hall, supra note 4, at B3. (208) Mayer, supra note 81, at 806.
(209) See supra notes 1-7 and accompanying text.
(210) The addition of issues to the negotiation will increase the information requirements of the negotiator and, therefore, the complexity of the resulting discourse. Sebenius, supra note 113, at 306. Complexity, like uncertainty, is not necessarily fatal to international agreement but rather will dictate a delay. Iida, supra note 77, at 413.
(211) Francois de Callieres, On the Manner of Negotiating with Princes 109-10 (A.F. Whyte trans., 1919) (1716).
(212) See Sebenius, supra note 113, at 282-83.
(214) de Callieres, supra note 211, at 125, quoted in Sebenius, supra note 113, at 306. (215) Sebenius emphasizes that forcing linkage, whether through the use of raw power or intrinsic commitment leverage, may poison the negotiating atmosphere. Sebenius, supra note 113, at 306. The concern is magnified when the victim views the move as illegitimate or unethical. Id.
(216) See supra note 178 and accompanying text.
(217) Northwest Power Planning Council, supra note 146, at 1-3.
(218) This is not to suggest that the only flaw in the Summit was the exclusion of Alaska; rather, in the context of the current problems within the Pacific Salmon Commission, the inclusion of Alaska in these discussions may have helped current negotiations. For a discussion of the "Salmon Summit," both pro and con, see Blumm & Simrin, supra note 165, at 725-727; Lee, supra note 165, at 786-787 (1991).
(219) The Canadian strategy of attempting to link reductions in Alaskan interceptions with reductions in Vancouver Island interceptions has contributed to the intractability of the current impasse. Meacham Testimony, supra note 125, at 2.
(220) During the spring of 1995, the two countries agreed to mediation to resolve their differences. While this is a positive sign that the parties want to continue to negotiate a solution, the chance of success is viewed dimly by some. Nevertheless, Minister of Fisheries and Oceans Brian Tobin recently stated, "I don't think it's difficult to convince the American that unless we fish responsibly, there will be no fish to argue about." Stewart Bell, B.C. Fishers Not Hopeful Mediator Can End U.S. Row, Vancouver Sun, May 10, 1995, at B4. The United States and Canada recently announced that they had agreed to allow Chris Beeby, the former New Zealand ambassador to France, to mediate the salmon dispute. Beeby is expected to assume his new position in late 1995. The mediation process agreed to by the United States and Canada, while it offers some hope for resolution, is not binding. U.S., Canada Appoint New Zealand Mediator in Salmon Fishing Dispute, Agence France Presse, Aug. 25, 1995, available in Westlaw, ALLNEWS Database.
Robert J. Schmidt, Jr., LL.M. 1995, University of Washington; J.D. 1993, University of Virginia School of Law. This Article includes a discussion of a series of previously published figures. Figures 1 through 6 originally appeared in Frederick W. Mayer, Managing Domestic Differences in International Negotiations: The Strategic Use of Internal Side-Payments, 4B Int'l Org. 793 (1992), and Figure 7 is adapted from a figure that originally appeared in James K. Sebenius, Negotiation Arithmetic: Adding and Subtracting Issues and Parties, 37 Int'l Org. 281 (1983). MIT Press Journals has granted permission to reprint these figures and otherwise reserves all rights.
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|Author:||Schmidt, Robert J., Jr.|
|Date:||Mar 22, 1996|
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