Erin Hodge

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The Trans-Pacific Partnership (TPP) faces heated criticism from both ends of the political spectrum. Campaign rallies feature hundreds of signs saying “Free Trade Costs Too Much,” “Flush the TPP,” and simple slashed circles with “TPP” in the center – but at a glance, it’s unclear who the rally is for.[1] President Obama favored ratification, arguing that to ignore the Pacific markets outside American borders allows China (notably absent from the TPP) to write the rules in the region.[2] In a rare show of bipartisan agreement, Congress repeatedly delayed consideration of the TPP – effectively ensuring ratification would wait until a new president takes the Oval Office.[3] Unfortunately, the controversy surrounding the TPP clouds its potential impact on other aspects of Pacific cooperation.

In its most basic form, the TPP is a regional international agreement to remove import tariffs and promote trade between member nations.^[4] For the TPP to take effect, however, at least six of the twelve signatory nations must ratify it; those six must also constitute 85% of the signatories’ total economic output.^[5] As economic heavy-hitters, both Japan and the United States must ratify the TPP for the agreement to move forward. To date, neither country has put the agreement to a vote.^[6] The United States Constitution provides a specific process for ratification of treaties, mandating executive and legislative cooperation.^[7]

Riding the coattails of these principal economic provisions are groundbreaking environmental conditions. This Note will examine Section 20.16 in the Environment Chapter of the TPP, which imposes restrictions on marine fishing subsidies. Despite heavy dependence on international cooperation, the TPP could affect how existing United States fishing laws operate with regard to marine fisheries.

To date, the United States has two major domestic laws dealing with overfishing in marine fisheries: the Magnuson-Stevens Fishery Management and Conservation Act (first enacted in 1976), and the Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2015 (IUU).[8] After its reauthorization in 2007, Magnuson-Stevens has effectively steered the United States toward sustainable fishing practices by setting annual catch limits.[9] Congress passed the IUU after President Obama organized a task force to investigate black market fishing and seafood fraud.[10] Congress’ intent seemed to be to expand the authority of the National Marine Fisheries Service (NMFS) and allow the agency to pursue vessels skirting the annual catch limit regulations set under Magnuson-Stevens.[11]

Magnuson-Stevens and the IUU were created as two parts of a statutory framework, but the TPP could make the system more powerful as a whole. TPP countries make up more than a quarter of the global seafood trade, and include four of the top fifteen global producers of fisheries products (by volume).[12] Section 20.16 requires that member nations create individual fisheries management systems to prevent overfishing, reduce bycatch, and aid the recovery of currently overfished stocks.[13] For the United States, this system can (and should) include Magnuson-Stevens and the IUU as an underlying framework. The management system under Section 20.16 must also gradually eliminate government subsidies for fishing that contributes to overfishing, and note the negative impact that IUU fishing can have on trade.[14] The Section 20.16 management system reaches beyond existing United States marine fishery law, and could represent a significant environmental victory in the Pacific.

The TPP will face many of the same issues as any international agreement or treaty regarding implementation and enforcement. Ratification uncertainty aside, the TPP depends heavily on every member nation’s commitment to the agreement. Although the TPP includes provisions for dispute resolution and accountability under its environment chapter, enforceability will ultimately rest on the twelve nations’ willingness to work together.[15] Economic controversy aside, the Trans-Pacific Partnership has the potential to effectively protect the future of marine fisheries and fragile ecosystems in the Pacific.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] John Nichols, Delegates Are Using the Convention to Make the TPP Politically Unacceptable, The Nation (July 28, 2016), https://www.thenation.com/article/delegates-are-using-the-convention-to-make-tpp-politically-unacceptable/.

[2] Vicki Needham, New York lawmakers opposing Pacific trade deal, The Hill (Mar. 23, 2016, 5:11 PM), http://thehill.com/policy/finance/274110-new-york-lawmakers-opposing-pacific-trade-deal.

[3] Rebecca Howard, Trans-Pacific Partnership trade deal signed, but years of negotiations still to come, Reuters (Feb. 4, 2016), http://www.reuters.com/article/us-trade-tpp-idUSKCN0VD08S.

[4] TPP: What is it and why does it matter?, B.B.C. News (July 27, 2016), http://www.bbc.com/news/business-32498715.

[5] Id.

[6] Howard, supra note 3.

[7] U.S. Const. art. II, § 2, cl. 2.

[8] Magnuson-Stevens Fisheries Act, Pub. L. No. 109–479, 120 Stat. 3575 (2007); Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2015, Pub. L. No. 114–81, 129 Stat. 649 (2015).

[9] Magnuson-Stevens Fisheries Act; 16 U.S.C.A. § 1853 (a)(1)(A).

[10] Presidential Initiative on Combating Illegal, Unreported, and Unregulated (IUU) Fishing and Seafood Fraud, NOAA Fisheries, http://www.nmfs.noaa.gov/ia/iuu/taskforce.html (last visited Oct. 24, 2016).

[11] Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2015, Pub. L. No. 114–81, 129 Stat. 649 (2015).

[12] Trans-Pacific Partnership, art. 20, Chapter Summary (Feb. 4, 2016), https://medium.com/the-trans-pacific-partnership/environment-a7f25cd180cb#.3my7crgpv.

[13] Id. art. 20.16.

[14] Id.

[15] Id. art. 20.19.