PUBLIC INTERNATIONAL LAW: GROUP PROJECT [October 6, 2008]

FISHERIES JURISDICTION CASE: AN ANALYSIS

FEDERAL ICELAND

REPUBLIC

OF

GERMANY

V.

1974 ICJ 175

DIVYA MEGHWANSHI, 322| IPSITA GANGULY, 325| NITIN KAUSHAL 331 MITA BARIK, 332 | ,RISHABH CHOPRA, 337

1. 2. 3. 4.

FACTUAL MATRIX ISSUES INVOLVED JUDGMENT OF THE CASE CASE ANALYSIS BIBLIOGRAPHY

3 7 9 15 36

June 24, 1901- The convention between Kingdom of Denmark, UK and Ireland to regulate the fisheries in the water surrounding Ireland and Iceland (in harmony with the regime under the North Sea Fisheries Convention of 6 May 1882)1 which provides that the exclusive right of fishery of Iceland was limited to a distance of three nautical miles from low water mark.

APRIL 5, 1948- Law enacted by the Althing (Parliament of Iceland) titled 1948 as A Law concerning the Scientific Conservation of the Continental Shelf Fisheries". The law empowers Ministry of Fisheries of the Government lceland to issue regulations establishing explicitly bounded conservation zones within the limits of the continental shelf of Iceland wherein al1 fisheries shall be subject to Icelandic rules and control.

MARCH 19, 1952- In compliance with above law; regulations issued by 1952 the Iceland to extend its fisheries limits to four miles to be measured from straight base line, which came into effect on 15 May 1952.

JUNE 1, 1958- Iceland government announced their intention to extend 1958 their fisheries limit to a distance of 12 miles from the baselines round the coast of Iceland.
1

Regime under the North Sea Fisheries Convention of 6 May 1882, to which the Kingdom of Denmark had also been a Party, declared that the fishermen of each participating country should enjoy the exclusive right of fishery within the distance of three nautical miles from low water mark.

JUNE 16, 1958- Verbal Note issued by the Federal Republic of Germany 1958 to Iceland Ministry opposing the above intention and declaring that the right to fisheries of the other States would not be affected by the steps taken by the Iceland government as they are in contravention to the established rules of international law.

JUNE 30, 1958- Decree No. 70 issued allowing the Iceland to extend its 1958fisheries limit to 12 miles to become effective on September 1, 1958. JULY 16, 1958- Verbal Note issued by the Government of the Federal 1958 Republic of Germany to Iceland protesting against the unilateral steps of the Icelandic Government extending its fisheries limit and expressed the need of negations to protect the interest of other States also.

MAY 5, 1959- Althing passed a resolution on account of the various 1959 incidents of the violation of fisheries limit by British vessals, lcelandic coastguard vessels and fishery protection vessels of the Royal Navy of the United Kingdom stating that Iceland has undisputable right over 12 miles and a smaller fishing limit than 12 miles from baseline around the country is out of question.

1960- Failure of the second United Nations Conference on the Law of 1960 the Sea which was held in Geneva with the object of reaching an agreement on to the maximum breadth of the territorial sea and

fisheries limit which had become a great issue of debate due the above measures taken by the Iceland government.2

MARCH 13, 1961-. Foreign Ministry of Iceland notified the Embassy of 1961 Federal Republic of Germany in Reykjavik copies of an Exchange of Notes dated March 11, 1961, between the Iceland and UK by which fisheries dispute between both the countries was resolved and settled.

JUNE 19, 1961

TO

JULY 6, 1961- The Federal Republic of Germany 1961

offered the Iceland government for negotiations in order to resolve the dispute as to fisheries jurisdiction and reach to an agreement. The talks held between June 19, 1961 to July 6, 1961.

JULY19, 1961- An agreement came into effect immediately between the 1961 two nations after the successful negotiations on the dispute as to fisheries jurisdiction, which was embodied in an Exchange of Notes and was submitted to Althing for its approval. This Exchange of Notes was similar to the Icelandic- British Exchange of Notes which came into effect on March 11, 1961.

RELEVANT

CLAUSES OF THE

EXCHANGE

OF

NOTES-

(a) That the Government of the Federal Republic of Germany would no longer object to a 12 miles fisheries zone around Iceland measured
2

Though the above UN conference was failed but it became a base for many agreements, as a considerable body of opinion emerged in support of the proposition that a coastal States should subject to certain conditions, be able to claim an exclusive fisheries zone of not more than 12 miles

from certain specified baseline which solely to the delimitation of that zone (b)That the baseline in question would be those set out in Decree No. 70 of June 30, 1058, modified in four specified respects (c) That for the transition period of three years from the conclusion of the agreement, fishing vessels of the Federal Republic of Germany would continue to be entitled to fish in certain specified areas within the outer 6 miles of the 12 mile zone during certain seasons of the year respectively specified for those areas,
(d)

That the Government of the Republic of Iceland shall continue to work for the implementation of the Althing Resolution of 5 May 1959, regarding the extension of the fishery jurisdiction of Iceland. However, it shall give the Government of the Federal Republic of Germany six months notice of any such extension; in case of a dispute relating to such an extension, the matter shall, at the request of either Party, be referred to the International Court of Justice"

MARCH 28, 1962- Althing approved the above Exchange of Notes. 1962

JULY 14, 1971- The dispute arose on account of a policy statement 1971 issued by the Icelandic government terminating the fisheries agreement (Exchange of Notes) with Federal Republic of Germany unilaterally, which reads as follows-

"Territorial Waters: The Fisheries Agreements with the United Kingdom and the Federal Republic of Germany shall be terminated and a resolution be made about an extension of the
6

fishery limit up to 50 nautical miles from the baselines, effective not later than 1 September 1972. At the same time a zone of jurisdiction of 100 nautical miles shall be enacted for protection against pollution. The Government will in this matter consult the opposition and give it an opportunity to follow its entire development."

Dispute was raised by the Federal Republic of Germany because of the unilateral extension of the fisheries limits and the unilateral denunciation or termination of the agreement constituted by Exchange of Notes, 1961 and all the talks that took place between them after the issuance of above policy statement were failed to come to any conclusion.

MAY 26, 1972- An application was filed by the Federal Republic of 1972 Germany before ICJ instituting proceedings against the Icelandic government.

1. WHETHER

THE

INTERNATIONAL COURT

OF

JUSTICE

HAS THE JURISDICTION IN THE

PRESENT MATTER RAISED BY THE

FEDERAL REPUBLIC

OF

GERMANY?

a) The preliminary issue was raised on the ground that ICJ has no jurisdiction to entertain the matter. The reason for the same being firstly, Federal Republic of Germany is not a party to the Statute of the International Court of Justice and secondly, there is nothing in

the Exchange of Notes which empowers the ICJ to look into the present dispute.
b)

In order to found the jurisdiction of the Court, the Application

relied on Article 36 (1), of the Statute of the Court, on an Exchange of Notes between the Government of the Federal Republic and the Government of Iceland dated 19 July 1961, and on a declaration, under the Security Council resolution of 15 October 1946, made by the Federal Republic of Germany on 29 October 1971 and deposited with the Registrar of the Court on 22 November 1971.3

2. WHETHER

THE

REPUBLIC

OF

ICELAND

CAN UNILATERALLY EXTEND ITS EXCLUSIVE

FISHERIES JURISDICTION/ LIMIT TO A ZONE OF CONTINENTAL SHELF INTO IT?

50

NAUTICAL MILES COVERING THE

WHETHER

IT CAN TERMINATE THE EXCHANGE OF NOTES OF

1961

BETWEEN BOTH THE

NATIONS UNILATERALLY? VALIDITY OF THE EXCHANGE OF NOTES

a) The contention of the Federal Republic of Germany was that the unilateral assumption of sovereign power by a coastal State over zones of the high seas is inadmissible under international law and that the Federal Republic of Germany would have to reserve al1 rights in the event of such a measure.
3

By that Declaration the Federal Republic of Germany not being a Party to the Statute of the International Court of Justice, accepted in accordance with Article 35 (2) of the Statute of the International Court of Justice and with paragraph 3 of the resolution of the Security Council of the United Nations dated 15 October 1946 (which lays down the conditions under which the International Court of justice shal1 be open for States not parties to the Statute of the Court) the Jurisdiction of the International Court of Justice in respect of a11 disputes which may arise between the Federal Republic of Germany and the Republic of Iceland relative to an extension of the sovereignty of Iceland in the domain of fisheries.

1. JURISDICTION

OF THE CASE

In its Judgment on the question of its jurisdiction in the case concerning Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), the Court found by 14 votes to 1 that it had jurisdiction to entertain the Application filed by the Federal Republic on 5 June 1972 and to deal with the merits of the dispute. The Court was composed as follows: President Sir Muhammad Zafrulla Khan, VicePresident Ammoun and Judges Sir Gerald Fitzmaurice, Padilla Nervo!. Forster, Gros, Bengzon, Petrkn, Lachs, Onyearna, Dillard, IgnacioPinto, de Castro, Morozov and Jim6nez de Mhaga. The President of the Court appended a declaration to the Judgment. Judge Sir Gerald Fitzmaurice appended a separate opinion, and Judge Padilla Nervo a dissenting opinion.

In its Judgment the Court recalls that on 5 June 1972 the Government of the Federal Republic of Germany instituted proceedings against Iceland in respect of a dispute concerning the proposed extension by the Icelandic (Government of its exclusive fisheries jurisdiction to a distance of 50 nautical miles from the baselines round its coasts. By a letter of 27 June 1972 the Minister for Foreign Affairs of Iceland informed the Court that his Government was not willing to confer jurisdiction on it and would not appoint an Agent. By Orders of 17 and 18 August 1972 the Court indicated certain interim measures of protection at the request of the Federal Republic and decided that the first written p1eadings should be addressed to the question of its jurisdiction to deal with the case. The Government of the Federal

Repub1ic of Germany filed a Memorial, whereas the Government of Iceland filed no pleadings.

Taking into account the proceedings instituted against Iceland by the United Kingdom on 14 April 1972 in the case concerning Fisheries Jurisdiction and the composition of the Court in this case, which includes a judge of United Kingdom nationality, the Court decided by eight votes to five that there was in the present phase, concerning the jurisdiction of the Court, a common interest in the sense of Article 31, paragraph 5, of the Statute which justified the refusal of the request of the Federal Republic of Germany for the appointment of a judge ad hoc.

On 8 January 1973 a public hearing was held in the course of which the Court heard oral argument on the question of its jurisdiction on behalf of the Federal Republic: of Germany, but Iceland was not represented at the hearing. In order to found the jurisdiction of the Court, the Government of the Federal Republic of Germany relies: (a) on an Exchange of Notes between the Government the Federal Republic and the Government of Iceland dated 19 July 1961, and (b) on a declaration for the purpose of securing access to the Court, in accordance with a Security Council solution of 15 October 1946, which it made on 29 October 1971 and deposited with the Registrar of the Court on 22 November 1971.

10

On 28 July 1972 the Minister for Foreign Affairs of Iceland pointed out in a telegram that the Federal Republic had thus accepted the jurisdiction of the Court only after it had been notified by the Government of Iceland, in its aidememoire of 31 August 1971, that the object and purpose of the provision for recourse to judicial settlement of certain matters had been fully achieved. The Court observes that the binding force of the 1961 Exchange of Notes bears no relation to the date of deposit of the declaration required by the Security Council resolution and that the Government of the Federal Republic implied with the terms both of the resolution question and of Article 36 of the Rules of Couru.

It is, the Court observes, to be regretted that the Government of Iceland has failed to appear to plead the objections to the Court's jurisdiction which it is understood to entertain. Nevertheless the Court, in accordance with its Statute and its settled jurisprudence, must examine the question on its own initiative, a duty reinforced by Article 53 of the Statute whereby, whenever one of the parties does not appear, the Court must satisfy itself that it has jurisdiction before finding on the merits. Although the Government of Iceland has not set out the facts and law on which its objection is based, or adduced any evidence, the Court proceeds to consider those objections which might, in its view, be raised against its jurisdiction. In so doing, it avoids not only all expressions of opinion on matters of substance, but also any pronouncement which might prejudge or appear to prejudge any eventual decision on the merits.

11

Compromissory clause of the 1961 Exchange of Notes (paras. 14-23 of the Judgment) By the 1961 Exchange of Notes the Federal Republic of Germany undertook to, recognize an exclusive Icelandic fishery zone up to a limit 13f 12 miles and to withdraw its fishing vessels from that zone over a period of less than 3 years. The Exchange of Notes featured a compromissory clause in the following terms: The Government of the Republic of Iceland shall continue to work for the implementation of the Althing Resolution of 5 May, 1999, regarding the extension of the fishery jurisdiction of Iceland. However, it shall give the Government of the Federal Republic of Germany six months' notice of any such extension; in case of a dispute relating to such art extension, the matter shall, at the request of either party be referred to the International Court of Justice.

The Court observes that there is no doubt as to the fulfillment by the Government of the Federal Republic of its part of this agreement and that the Government of Iceland, in 1971, gave the notice provided for in the event of a further extension of its fisheries jurisdiction. Nor is there any doubt that a dispute has arisen, that it has been submitted to the Court by the Federal Republic of Germany and that, on the face of it, the dispute thus falls exactly within the terms of the compromissory clause. Although, strictly speaking, the text of this clause is sufficiently clear for there to be no need to investigate the preparatory work, the Court reviews the history of the negotiations which led to the Exchange of Notes, finding confirmation therein of the parties' intention to provide the Federal Republic, in exchange

12

for its recognition of the 12-mile limit and the withdrawal of its vessels, with the same assurance as that given a few weeks previously to the United Kingdom, including the right of challenging before the: Court the validity of any further extension of Icelandic fisheries jurisdiction beyond the 12 mile limit. It is thus apparent that the Court has jurisdiction.

2. VALIDITY

AND DURATION OF THE

1961 EXCHANGE

OF

NOTES

The Court next considers whether, as has been contended, the agreement embodied in the 1961 Exchange of Notes either was initially void or has since ceased to operate. In the above-mentioned letter of 27 June 1972 the Minister for Foreign Affairs of Iceland said that the 1961 Exchange of Notes took place under extremely difficult circumstances and the Federal Republic of Germany has interpreted this statement as appearing to intimate that the conclusion of the 1961 Agreement had taken place, on the part of the Government of Iceland, under some kind of pressure and not by its own free will. The Court, however, notes that the agreement appears to have been likely negotiated on the basis of perfect equality and freedom of decision on both sides.

In the same letter the Minister for Foreign Affairs of Iceland expressed the view that an undertaking for judicial settlement cannot be considered to be of a permanent nature and, as indicated above, the Government of Iceland had indeed, in an aidememoire of 31 August 1971, asserted that the object and purpose of the

13

provision for recourse to judicial settlement had been fully achieved. The Court notes that the compromissory clause contains no express provision regarding duration. In fact, the right of the Federal Republic of Germany to challenge before the Court any claim by Iceland to extend its fisheries zone was subject to the assertion of such a claim and would last so long as Iceland might seek to implement the 1959 Althing resolution.

In a statement to the Althing (the Parliament of Iceland) on 9 November 1971, the Prime Minister of Iceland alluded to changes regarding legal opinion on fisheries jurisdiction. His argument appeared to be that as the compromissory clause was the price that Iceland had paid at the time for the recognition by the Federal Republic of Germany of the 12-mile limit, the present general recognition of such a limit constituted a change of legal circumstances that relieved Iceland of its commitment. The Court observes that, on the contrary, since Iceland has received benefits from those parts of the agreement already executed, it behaves it to comply with its side of the bargain. The letter and statement just mentioned also drew attention to the changed circumstances resulting from the ever increasing exploitation of the fishery resources in the seas surrounding Iceland. It is, notes the Court, admitted in international law that if a fundamental change of the circumstances which induced parties to accept the treaty radically transforms the extent of the obligations undertaken, this may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty. It would appear that in the present case there is a divergence of views between the Parties as to whether there have been any fundamental changes in fishing

14

techniques in the waters around Iceland. Such changes would, however, be relevant only for any eventual decision on the merits. It cannot be said that the change of circumstances alleged by Iceland has modified the scope of the jurisdictional obligation agreed to in the 1961 Exchange of Notes. Moreover, any question as to the jurisdiction of the Court, deriving from an alleged lapse of the obligation through changed circumstances, is for the Court to decide by virtue of Article 36, paragraph 6, of its Statute.

15

The judgment in this case has been delivered keeping each and every details on account, there has been a proper introspection of the factual background of the case as well as the issues and legal provisions involved. We agree with the judgment delivered in the present case, this would be further substantiated as follows:1. FINDINGS It is submitted that the Court by majority votes held and found that: a. the Icelandic Regulations of 1972 constituting a unilateral extension of the exclusive fishing rights of Iceland to 50 nautical miles from the baselines are not opposable to the Federal Republic of Germany; b. Iceland is not entitled unilaterally to exclude fishing vessels of the Federal Republic of Germany from areas between the 12-mile and 50-mile limits or unilaterally to impose restrictions on their activities in such areas; c. Iceland and the Federal Republic of Germany are under mutual obligations to undertake negotiations in good faith for an equitable solution of their differences; d. it is unable to accede to the submission of the Federal Republic concerning a claim to be entitled to compensation

2.

ICJS JURISDICTION:

Furthermore, any question as to the jurisdiction of the Court, deriving from an alleged lapse through changed circumstances, is resolvable
16

through the accepted judicial principle enshrined in the Courts Statute, which provides that4: In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. In this case such a dispute obviously exists, as can be seen from Icelands communications to the Court, and to the other Party, even if Iceland has chosen not to appoint an Agent, file a Counter-Memorial or submit preliminary objections to the Court's jurisdiction; and the Statute both entitles the Court and, in the present proceedings, requires it to pronounce upon the question of its jurisdiction 5. Hence, it is very clear that the ICJ had jurisdiction to hear the dispute between Iceland and Federal Republic of Germany.

3.

PROCEDURAL ASPECTS-

In this case, the procedural formalities were strictly adhered to by the International Court of Justice. Some of them may be demonstrated as follows:a.

The documents pertaining to the case was made available to United Kingdom and Senegal at their behest.6

b.

The demand of the Federal Republic of Germany for the appointment of a judge on ad hoc basis was not accepted.7

Article 36, paragraph 6, ICJ Statute Article 53, ICJ Statute Article 44, paragraph 2, ICJ Statute Article 31, paragraph 5, ICJ Statute

17

c.

Republic Of Iceland in the present matter failed to appear in the legal proceedings of the present matter. Consequently, there was no objection to the issues of jurisdiction that was adhered to by the Republic Of Germany. But the Honble International Court Of Justice decided the issue of jurisdiction on the basis of the established procedure, thereby taking care of the minute legal details pertaining to the case.

d.

The jurisdiction of the International Court Of Justice was decided.

4. a)

INTERNATIONAL FISHERIES CASES: ICJ

AND

ITLOS

United Kingdom v. Norway8, [FISHERIES CASE] In 1935 Norway enacted a decree by which it reserved certain fishing grounds situated off its northern coast for the exclusive use of its own fishermen. The question at issue was whether this decree, which laid down a method for drawing the baselines from which the width of the Norwegian territorial waters had to be calculated, was valid international law. This question was rendered particularly delicate by the intricacies of the Norwegian coastal zone, with its many fjords, bays, islands, islets and reefs. The United Kingdom contended, inter alia, that some of the baselines fixed by the decree did not accord with the general direction of the coast and were not drawn in a reasonable manner. In its Judgment of 18 December 1951, the Court found that, contrary to the submissions of the United Kingdom, neither the method nor the actual baselines stipulated by the 1935 decree were contrary to international law.

ICJ: 18 December 1951

18

b)

Germany v. Iceland9, UK v. Iceland10 [FISHERIES JURISDICTION CASE] On 14 April and 5 June 1972, respectively, the United Kingdom and the Federal Republic of Germany instituted proceedings against Iceland concerning a dispute over the proposed extension by Iceland, as from 1 September 1972, of the limits of its exclusive fisheries jurisdiction from a distance of 12 to a distance of 50 nautical miles. Iceland declared that the Court lacked jurisdiction, and declined to be represented in the proceedings or file pleadings. At the request of the United Kingdom and the Federal Republic, the Court in 1972 indicated, and in 1973 confirmed, provisional measures to the effect that Iceland should refrain from implementing, with respect to their vessels, the new Regulations for the extension of the fishery zone, and that the annual catch of those vessels in the disputed area should be limited to certain maxima. In Judgments delivered on 2 February 1973, the Court found that it possessed jurisdiction; and in Judgments on the merits of 25 July 1974, it found that the Icelandic Regulations constituting a unilateral extension of exclusive fishing rights to a limit of 50 nautical miles were not opposable to either the United Kingdom or the Federal Republic, that Iceland was not entitled unilaterally to exclude their fishing vessels from the disputed area, and that the parties were under mutual obligations to undertake negotiations in good faith for the equitable solution of their differences.

c)

Spain v. Canada11, [FISHERIES JURISDICTION CASE]

ICJ: 1972-1974 ICJ: 1972-1974 ICJ: 4 December 1998

10

11

19

This case arose out of the Estai incident in 1995 concerning the arrest in by Canadian authorities of a Spanish fishing vessel whilst fishing on the high seas (in the NAFO Regulatory Area) for Greenland halibut. Although both parties to the dispute had made declarations of acceptance of the Court's compulsory jurisdiction, that jurisdiction of the Court was contested by Canada primarily on the basis that it's declaration specifically excluded "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area". Spain argued inter alia that the dispute concerned other areas of law, not covered by this exclusion. The Court declined jurisdiction.
d)

New Zealand v. Japan; Australia v. Japan12, [SOUTHERN BLUEFIN TUNA CASES] The Southern Bluefin Tuna cases concerned requests for provisional measures made by Australia and New Zealand against Japan concerning fishing for southern bluefin tuna under the 1993 Convention for the Conservation of Southern Bluefin Tuna. The case concerned several difficult questions concerning the relationship between the 1993 Convention and the Law of the Sea Convention, under which the request was made. After rejecting all jurisdictional objections raised by Japan, ITLOS concluded that an arbitral tribunal would prima facie have jurisdiction under the Law of the Sea Convention and it prescribed (by a majority vote) six provisional measures.

e)

New Zealand v. Japan; Australia v. Japan,13 [SOUTHERN BLUEFIN TUNA ARBITRATION]

12

ITLOS: 27 August 1999 Annex VII Arbitration: 27 August 1999

13

20

The Southern Bluefin Tuna Award of 4 August 2000 marked the first instance of application of compulsory arbitration under Part XV, Section 2 of the 1982 UN Law of the Sea Convention and of the institution of an Arbitral Tribunal under Annex VII of the LOS Convention. The purpose of the Tribunal was to hear the merits of a dispute between Japan, on the one hand, and Australia and New Zealand, on the other hand, concerning fishing under the Convention on the Conservation of Southern Bluefin Tuna. The dispute had previously been subject to a provisional measures hearing before ITLOS. The Arbitral Tribunal ultimately declined jurisdiction, however, placing emphasis on the fundamental principle of consent.
f)

Chile v. European Community14, [SWORDFISH STOCKS CASE] This case concerns alleged overfishing by the EC in the South Pacific and measures denying port access taken by Chile. The merits of this case have not yet been heard by ITLOS. Although it remains on the docket of the Tribunal, proceedings have been stayed following an "out-of-court" agreement between the parties. Contemporaneous proceedings brought by the EC against Chile before the World Trade Organization have also been stayed.

g)

Belize v. France15, [THE GRAND PRINCE CASE] The Grand Prince was the third case before ITLOS arising from French arrests of vessels fishing Patagonian toothfish in French waters around the Kerguelen and Crozet islands. As with two of the previous cases, it concerned an application for prompt release. In contrast to the previous decisions, however, ITLOS on this occasion determined that it had no jurisdiction to hear the dispute on the

14

ITLOS: 20 December 2000; M. Orellana, The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO (2002) 71 Nord T L 55
15

ITLOS: 20 April 2001

21

basis that at the time of the application the "Grand Prince" was not a vessel registered in Belize.
h)

Russian Federation v. Australia16 [VOLGA CASE] The Volga case is the latest in the series of prompt release cases before the Tribunal. Of particular interest in this case was the inclusion of non-monetary conditions by Australia in the bond for release of the Volga and potential questions concerning the validity of the arrest, which occurred after hot pursuit. The tribunal rejected the possibility of including non-monetary conditions but avoided the issue of hot pursuit.

i)

Saint Vincent and the Grenadines v. TRADER CASE]

Guinea Bissau17 [JUNO

An application was made by Saint Vincent and the Grenadines for the prompt release of the fishing vessel Juno Trader, which was detained by the authorities of the respondent State, Guinea Bissau. An argument that the Tribunal lacked jurisdiction because the vessel had reverted to Guinea Bissau ownership was rejected and the Tribunal applied its previous jurisprudence in ordering the release of the vessel upon the posting of a bond of EUR 300,000.
5.

INSTANCE CONCERNING FISHERIES JURISDICTION BY INTERNATIONAL COURT OF JUSTICEa)

The early history of fishery agreements was characterized by

negotiations for access. This trend began to change in the early 1900s when agreements introduced the ideas of preservation and cooperative management of the living resources of the high seas.
16

ITLOS: 19 December 2002 ITLOS: 18 December 2004

17

22

These types of agreements continued through the end of the 1950s, by which time the emphasis had switched to the theme of coastal State preference for managing and utilizing the living resources adjacent to its coasts. This concept was codified in UNCLOS I, which gave coastal States a much greater voice in the conservation, management, and utilization of the living resources in the high seas adjacent to their coasts. The interim period between UNCLOS I and UNCLOS III was characterized by a return to access issues, in addition to continued management concerns, as more and more States increased the scope of their fishery jurisdictions. By the middle of the 1970s and the negotiations at UNCLOS III, however, management issues had become a higher priority for the concerned countries. This period also signaled the emergence and acceptance of the 200-mile EEZ, giving coastal States additional authority to manage and utilize the living resources off their coasts. Article 63(1) emerged from early UNCLOS III negotiations in its final form. It creates a duty for those coastal States that exploit transboundary stocks to discuss together the management of such stocks, and a moral obligation actually to agree on those measures necessary to coordinate conservation and utilization of those stocks. Article 63(1) does not, however, create a framework for such coordination, nor does it specify which factors, such as biology, traditional fishing rights, or social and economic considerations, should be weighed in reaching such agreements18.

b)

It is to be noted that Canada and the U.S. face many decisions the future of their shared fishery resources. By

concerning

attempting to conclude the East Coast Fisheries Agreement, the U.S.

18

Peter L. Walton, Piracy of North Pacific Salmon: Economic Implications and Potential Solutions, 25 Geo. Wash. J. Int'l L. & Econ. 581 at 593

23

and Canada signaled their acceptance of Article 63(1) as the international legal standard to apply in cooperative management of transboundary fish stocks. Regardless of the individual U.S. or Canadian stance with respect to UNCLOS III as a whole, customary international law as codified in Article 63(1) on transboundary stock management imposes an obligation on the two States to follow that standard. This is enforced by the knowledge, as was previously apparent with the Baltic Sea Agreement, and as is now apparent given the critical state of the Georges Bank fishery, that some agreement must be reached in light of the ominous consequences of non-agreement.

c)

Even, the precipitous drop in stock levels in the Georges Bank

region indicates that it is more urgent than ever that Canada and the U.S. find management approaches that can rebuild those stocks. One such approach is contained in the proposed enabling legislation concerning U.S. participation in NAFO. This legislation authorizes and encourages the Secretary of State to initiate negotiations with Canada for the purpose of entering into a fishery agreement, with particular emphasis on the cooperative management of transboundary stocks occurring in the Georges Bank region.19

d) Although the bill has been opposed by the Regional Councils, which believe they should have a more significant role in developing such cooperative management plans, the Senate must not allow internal political issues to unduly influence its deliberations. The Senate has an obligation to consider the larger responsibility of the
19

H.R. 3188, 103d Cong., 1st Sess. 208 (1993)

24

U.S. to comply with the duty imposed by Article 63(1), and to follow the international legal standard by approving the NAFO legislation.

e)

It needs to be noted that the International Court of Justice made

its landmark decision delimiting the United States -Canadian maritime boundary in the Gulf of Maine.20 That decision was expected to open a new chapter in U.S.--Canadian maritime relations by forcing cooperative management of transboundary fishing stocks for one of the world's richest fishing grounds--Georges Bank. The shared management of this region was not considered problematic by the World Court due to the positive history of U.S.--Canadian relations. Until recently, however, there has been very little shared management in the Georges Bank region. Fish stocks in Georges Bank have been steadily declining, and are currently at an all time low. This decline has occurred despite restrictions on open fishing areas and landing limits that have been imposed on the fisheries in that area since the passage of the Magnuson Fishery Conservation and Management Act.21A recent, stark example of the effects of this decline is the joint closure of the New England haddock fishery by Canada and the U.S. due to severe depletion of stocks caused by overfishing. The current condition of the Georges Bank fishery indicates that the United States and Canada have not effectively managed the fishery resources within their own exclusive economic zones Search . It further demonstrates the consequences of their failure to successfully manage the shared resources of Georges Bank. In the past few years there have been limited efforts in
20

Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 I.C.J. 246

21

16 U.S.C.A. 1801-1882 (1988)

25

cooperative fisheries management between the two countries. The recently approved Canada--United States Agreement of fisheries enforcement22 now requires that each country prohibit its fishermen from operating contrary to fisheries laws of the other country, while in that country's waters. Fishermen who violate the laws can no longer escape enforcement action by retreating to their own waters. This agreement made a positive step toward reducing tensions in the boundary areas between the countries and toward improving U.S. Canadian coastal conservation efforts23.

f)

Additionally, in recognition that cooperative fishery management

plans between the two countries are more urgently needed than ever before, the U.S. Congress has renewed its efforts to pass the necessary enabling legislation to allow the U.S. to become a participating member of the Northwest Atlantic Fisheries Organization (NAFO).24 Although U.S. boats do not now regularly fish outside the EEZ, membership in NAFO would give the U.S. the opportunity to exchange scientific data about the fish stocks in the region, and would give the government leverage to negotiate a fishing quota for U.S. fishermen. Most critically for the Georges Bank region, the legislation authorizes negotiations between the U.S. and Canada to seek a mutually beneficial management agreement for transboundary stocks, particularly cod and
22

haddock.25 At a time fisheries

when the United States is urging other countries to join

59 Fed.Reg. 26

23

Staff of Marine Law Institute, A Review of Developments in Ocean and Coastal Law 2001-2002, 7 Ocean & Coastal L.J. 367 at 374
24

Originally introduced in September, 1993 as H.R. 3058, the bill was combined with the Search Term Begin Fisheries Search Term End Enforcement in Central Sea of Okhotsk Act, and was passed in the House as H.R. 3188, 703d Cong., 1st Sess. (1993). The bill was still pending in the Senate as of March 1, 1994.

26

management agreements, and advancing the general argument that fishing countries have a responsibility to participate in regional fishery conservation and management organizations, it should have a moral obligation, if not a legal one, to approve the NAFO legislation.

g)

Article 63 of the Convention of the Third United Nations

Conference on the Law of the Sea is of utmost importance to be discussed in the present matter. Specifically, it will consider whether Article 63(1), which imposes a limited duty on States to seek agreement on transboundary stock management issues, reflects a generally accepted legal standard. In order to trace the international legal standard for transboundary stock management, one must first understand the legal process by which such a standard is developed. Modern international law can be defined as "that body of legal rules and principles which States recognize as necessary for the maintenance of peace and good order among themselves, and habitually obey in order to maintain and preserve that good order."
26

h) It is a law based upon the consent of States, where a breach of such consent subjects a State to those remedies available in international law. It follows from this that customary international law cannot be grounded upon mere convenience or courtesy, but must be evidenced by a consistent practice by the States in question
25

139 CONG.REC. E2159

26

L.C. Green, International Law: A Canadian Perspective 40 (1984) Can Intl L Rev. 328 at 342

27

based upon their recognition of the appropriate legal rules and regulations. Thus, the development of customary international law requires an agreement between two or more States on some norm which is based upon a perceived legal obligation to follow the norm in question.

i)

To determine whether an international norm of cooperative

management of transboundary or shared fish stocks exists, the state practice in the years preceding the First United Nations Conference on the Law of the Sea (UNCLOS I) in 1958, including a general review of Search Term Begin fisheries Search Term End agreements for the North Atlantic and North Pacific, and agreements among European and Asian countries. A brief review of the cooperative management provisions of the 1958 Geneva Convention on Fishing and Conservation of the High Seas will follow. The next section will trace the legislative history of Article 63 at UNCLOS III, followed by a determination of whether Article 63(1) represents a codification of the customary law of the sea for cooperative Search Term Begin fisheries Search Term End management of transboundary stocks. This Article will then look at recent practices of cooperative management to determine if such practices are representative of an international Georges Bank. standard. The conclusion will attempt to draw implications for the management of transboundary fish stocks on

j)

During the proceedings of the Gulf of Maine case, Canada took

the position that the fisheries agreement, while not binding upon the parties, was evidence of Canada's traditional participation in the

28

fisheries of Georges Bank and represented the best objective evidence of what the parties themselves considered an equitable solution in relation to Georges Bank fishery fisheries. The U.S. on the other hand, resources granted to Canada by the dismissed the fisheries agreement outright because the rights to Agreement were inconsistent with rights accruing to the U.S. under the jurisdiction of the 200-mile EEZ. It should be noted that although both sides used the fisheries agreement to their advantage in their pleadings before the Special Chamber, neither side denounced the principles behind the negotiations that led to the Agreement, nor did either side abandon the principle of seeking to agree on transboundary stock management issues.

k) While the Agreement never entered into force, it was negotiated and signed by both countries, demonstrating that the U.S. and Canada did seek to agree on a transboundary management issue. At the time of the negotiations, the U.S. and Canada were following the growing consensus emerging at UNCLOS III on the standard embodied in Article 63(1); the fact that the Agreement never became binding should not diminish the attempt to agree on these fisheries issues. The fact that the Agreement was negotiated is evidence of U.S. and Canadian acceptance of Article 63(1) as the international legal standard for cooperative management of transboundary fish stocks.

6.

Mare Liberum & EEZ: How Free Are The Seas?

a)

It is to be noted that Mare liberum means that each state has an

equal right to exploit the resources of the high seas. Implicit in that
29

right is a concomitant restriction against any state regulating the high seas activities of vessels flying another state's flag. States vary in their commitment to fisheries protection, and no state wants to disadvantage its nationals in the international arena. As a result, every commercially valuable fish stock that straddles the high seas and an international commons is overfished.27 Without a legal framework capable of imposing consistent conservation measures on high seas straddling stocks, mare liberum will drive these stocks toward extinction.
b)

The problem posed by the high seas international commons has become more acute with time. The past fifty years have seen profound advances in marine fishing technology28 that permit the harvest of ever-larger fish catches.29 Unlike high seas fishing techniques, however, high seas fisheries regulation has changed little since the Age of Exploration. The international community is essentially using a seventeenth-century conception of the high seas to regulate a twenty-first-century fishing industry. Taking advantage of this situation, distant water fishing nations (DWFNs)30 have
27

Evelyne Meltzer, Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries 25 Ocean Dev. & Int'l L. 255 at 328 (1994)
28

For example, spotting aircraft, remote sensing, and satellite tracking provide a new level of precision in pinpointing mobile fish stocks. Christopher C. Joyner, Peter N. DeCola, Chile's Presential Sea Proposal: Implications for Straddling Stocks and the International Law of Fisheries, 24 Ocean Dev. & Int'l L. 99 at 101 (1993)
29

FAO, State Of World Fisheries & Aquaculture 3 (1998), available http://www.fao.org/docrep/w9900e/w9900e02.htm as visited on August 23, 2008
30

at

The primary DWFNs include Japan, Russia, Poland, the United States, Taiwan, South Korea, Thailand, and certain members of the European Community. See United Nations Economic & Social Council, The Agreement on High Seas Fishing: An Update, available at and as cited from http://www.un.org/ecosocdev/geninfo/sustdev/fishery.htm (Feb. 1997) [hereinafter Straddling Stock Agreement Update] Christopher C. Joyner, Compliance and

30

subsidized ever larger, more powerful fishing fleets that can travel longer distances and operate in more difficult conditions.

c)

Coastal states began advocating for expansion of their regulatory As the regulatory regime now stands, coastal states

jurisdiction to encompass currently unprotected fish stocks on the high seas31. have a 200-mile32 exclusive economic zone ("EEZ")33 in which they have sovereign rights to manage and exploit living resources34. Within these EEZs, international law provides coastal states with clear authority to manage fisheries as they see fit35. They can develop conservation and management plans to exploit the fisheries sustainably within their national jurisdiction and can rely on their inherent police powers to compel compliance36.
Enforcement in New International Fisheries Law, 12 Temp. Int'l & Comp. L.J. 271 at 273 (1998). China has been developing its distant water fishing capacity and will soon be a major DWFN if it has not already become one. Straddling Stock Agreement Update, supra. China, Peru, Chile, Japan, the United States, the Russian Federation, Indonesia, India, Thailand, Norway, Korea, and Iceland are the top marine producer countries--each capturing more than two million tons of fish per year as cited from FAO, State Of World Fisheries & Aquaculture 3 (1998), available at http://www.fao.org/docrep/w9900e/w9900e02.htm as visited on August 23, 2008
31

Barbara Kwiatkowska, Creeping Jurisdiction Beyond 200 Miles in Light of the 1982 Law of the Sea Convention and the State Practice, 22 Ocean Dev. & Int'l L. 153 at 159 (1991)
32

All references to miles refer to nautical miles. A nautical mile is derived from one minute (one-sixtieth of one degree of arc on the earth's surface). A standard nautical mile has been defined as 6072.12 feet or 1.853 kilometers, slightly longer than a mile would be on land.
33

United Nations Convention on the Law of the Sea, Dec. 10, 1982; Article 57, 1833 U.N.T.S. 397, 419 [hereinafter UNCLOS III]
34

Id Article 55, at 418 Id Article 61, at 420-21

35

36

This is not to suggest that every state chooses to exercise this inherent power or that the states that do exercise this power effectively. The point is not that national

31

d)

It is of great concern to note that the first major deviation from

the tradition of mare liberum was President Truman's 1945 Proclamation on the Continental Shelf, which asserted full U.S. jurisdiction and control over the mineral resources of the continental shelf37. The Truman Proclamation explicitly claimed sovereignty not over the superjacent waters, but merely over the submerged lands38. Indeed, the Proclamation specifically stated "the character as high seas of the waters above the continental shelf and the right to their free and uninterrupted navigation are in no way thus affected" by the claim of sovereignty over the continental shelf39.

e)

The Truman Proclamation triggered a major change in customary

international law. Claims of sovereignty over the continental shelf

jurisdiction ensures proper, or any, fisheries management, but that such an exercise of state authority is possible within a zone of national jurisdiction. The international system recognizes political power as centered at the nation-state level rather than at the international level.
37

Proclamation No. 2667, 3 C.F.R. 67-68 (1943-1948) (Sept. 28, 1945), nullified by Outer Continental Shelf Lands Act, 43 U.S.C. 1331 (1953). The Proclamation did not extend the limits of American territorial waters. Treasure Salvors Inc v. The Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 338 (5th Cir. 1978)
38

Ibid

39

The Truman Fisheries Proclamation, issued the same day, asserted U.S. jurisdiction over certain fisheries but stopped short of claiming sovereignty. Proclamation No. 2668, 3 C.F.R. 68-69 (1943-1948) (Sept. 28, 1945). This Proclamation claimed the authority to establish "explicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of the United States." Id at 69. Although ostensibly a response to "the pressing need for conservation and protection of fishery resources," this Proclamation had at least as much to do with economic protectionism (responding to concerns about Japanese fishing in the high seas of the Bering Sea for "American" salmon) as with a genuine concern for environmental protection. Treasure Salvors Inc v. The Un-identified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 338 (5th Cir. 1978)

32

spread and were accepted rapidly into international law40. The Proclamation's impact can be attributed to two main factors. First, the language of the Proclamation indicated that all states had an equal right to make similar claims about their continental shelf41. Second, before World War II, the continental shelf was, for the most part, literally beyond the reach of individuals and states42. The war brought rapid development of remote sensing techniques and submersible technology43. Coupled with a growing dependence on fossil fuels in industry and transportation, ownership and exclusive rights to the continental shelf suddenly became issues of great strategic importance44.

f)

The first moves to claim sovereignty over the waters above the

continental shelf came from Latin America. Following the path opened by the Truman Proclamations, several Latin American states claimed 200-mile jurisdictions that included sovereignty over both the submerged lands of the continental shelf and the superjacent
40

In the North Sea Continental Shelf Cases, for example, the International Court of Justice proclaimed: "[T]he rights of the Coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land." North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 22 (Feb. 20)
41

Proclamation No. 2667, 3 C.F.R. at 68 (stating that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just)
42

Ludwik A. Teclaff, Protecting Abyssal Species in the Law of the Sea, 8 Fordham Envtl. L.J. 251 at 260 (1997)
43

Barbara Kwiatkowska, Creeping Jurisdiction Beyond 200 Miles in Light of the 1982 Law of the Sea Convention and the State Practice, 22 Ocean Dev. & Int'l L. 153 at 162 (1991)
44

Ludwik A. Teclaff, Protecting Abyssal Species in the Law of the Sea, 8 Fordham Envtl. L.J. 251 at 261 (1997)

33

waters45. For example, in 1947, responding to the post-war emergence of distant water whaling fleets that threatened its domestic whaling industry, Chile claimed a 200-mile territorial limit to its national waters and asserted exclusive fishing rights within that zone46. Later that year, Peru similarly expanded its jurisdictional limits47. In 1952, these two states, along with Ecuador, issued the Santiago Declaration, purporting to assert a moral and legal basis for the claim of a 200-mile conservation zone48. Other nations followed. By 1952, Argentina and Honduras had also claimed exclusive fishing rights over the rich living resources superjacent to their continental shelves. In the North Atlantic, Iceland made a more modest but equally controversial claim of extended jurisdiction in 1958.49 Unlike the continental shelf issue, claims of sovereignty over these waters were hotly contested and did not win recognition by most other states.

45

Rebecca Bratspies, Finessing King Neptune: Fisheries Management and the Limits of International Law, 25 Harv. Envtl. L. Rev. 213 at 228 (2001)
46

Christopher C. Joyner, Peter N. DeCola, Chile's Preasential Sea Proposal: Implications for Straddling Stocks and the International Law of Fisheries, 24 Ocean Dev. & Int'l L. 99 at 102 (1993
47

Presidential Decree No. 781 of 1 August 1947 Concerning the Submerged Continental or Insular Shelf, reprinted in relevant part in United Nations Office of Legal Affairs, Laws and Regulations on the Regime of the Territorial Sea, at 38-39, U.N. Doc. ST/LEG/SER.B/6 (1957) [hereinafter Territorial Sea]
48

Agreement Relating to the Organization of the Permanent Commission of the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific, Aug. 18, 1952, Chile-Ecuador-Peru, 1006 U.N.T.S. 331
49

Fisheries Jurisdiction Case (U.K. v. Iceland), 1974 I.C.J. 3, 10-22 (July 25). In 1958, the Icelandic Althung (Parliament) issued regulations extending the limits of its exclusive fishery zone around its coast to twelve miles. Id. at 12. In 1971, the Icelandic government announced that as of September 1, 1972, it would further extend its fisheries jurisdiction to fifty miles and that all agreements on fisheries jurisdiction with the British and Germans would end.

34

g)

The shift from mare liberum to exclusive national control began in

earnest only with the United Nations Conference on the Law of the Sea ("UNCLOS I") process. In 1958, UNCLOS I convened in Geneva. This conference, attended by fifty-eight states, produced four international instruments50. Two of these instruments, the Convention on Fishing and Conservation of the Living Resources of the High Seas and the Convention on the High Seas, dealt directly with fisheries51.

h)

UNCLOS I reflected a jurisdictional regime that dated back to

Grotius. The high seas, where fishing was open to all and where fish were assumed to be an unlimited resource, began at the outer edges of the territorial sea. Fishing on the high seas was subject only to regulation by a vessel's flag state, and the flag state was bound by reasonable regard to the interests of other States in their exercise of the freedom of the high seas52. UNCLOS I left unresolved two hotly contested points: the permissible size of a territorial sea, and whether a national fisheries zone, where states could have exclusive or preferential fishing rights outside the territorial sea, ought to be recognized in international law53.
50

Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205; Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311; Convention on the High Seas, 13 U.S.T. at 2312, 450 U.N.T.S. at 82; 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
51

Ibid Convention on the High Seas, Art 2, 13 U.S.T. at 2314, 450 U.N.T.S. at 82

52

53

See Second United Nations Conference On The Law Of The Sea, Final Act at 175, U.N. Doc. A/CONF.19/L.15 (1960). By 1971, seventy states had declared either a twelve-mile fisheries jurisdiction zone or a twelve-mile territorial sea. Ten Latin American states claimed fisheries jurisdiction over a 200-mile zone as either a territorial sea or an exclusive fishing zone. Argentina. Brazil, El Salvador, Ecuador,

35

i)

The Second United Nations Conference on the Law of the Sea

("UNCLOS II") convened in 1960 to resolve these outstanding issues left open by UNCLOS I. In contrast to UNCLOS I, UNCLOS II did not accomplish anything of note54. The conference's failure to resolve the key issues left open by UNCLOS I set the stage for a series of international confrontations over high seas fishing, most notably the cod wars55 of the 1960s and 1970s. These disputes, which involved the naval forces of some of the world's major fishing nations, vividly demonstrated the potential for serious international confrontations arising over access to fisheries56. Access to sea resources also became a rallying cry for the so-called developing countries in their
Panama, and Uruguay claimed 200-mile territorial seas while Chile, Costa Rica, Nicaragua, and Peru claimed 200-mile fishing zones. Similarly, by 1975, twenty African and Asian states extended their jurisdiction over marine fisheries to areas varying from 30 to 200 miles.
54

A joint proposal from Canada and the United States to adopt a standard six-mile territorial sea and a six-mile exclusive fishing zone failed, by one vote, to get the twothirds majority necessary for adoption by the plenary (the vote was 54-28 with 5 abstentions). See Second United Nations Conference On The Law Of The Sea, Thirteenth Plenary Meeting at 30, U.N. Doc. A/CONF.19/SR/13 (1960); Second United Nations Conference On The Law Of The Sea, Canada: Proposal at 167, U.N. Doc. A/CONF.19/C.1/L.4 (1960). Had it been adopted, this Agreement would have recognized a coastal state's preferential fishing rights in areas of the high seas adjacent to this exclusive fishing zone.
55

The cod wars were a series of conflicts between Iceland against the Federal Republic of Germany and the United Kingdom over fishing rights off the coast of Iceland. See generally Mark Kurlansky, COD: A Biography Of The Fish That Changed The World 18 Eur. J. Int'l L. 158 at 73 (1997). Ultimately, these disputes led to the fisheries jurisdiction cases before the International Court of Justice. See Fisheries Jurisdiction Case (U.K. v. Iceland), 1974 I.C.J. 3, 3 (July 25); Fisheries Jurisdiction Case (F.R.G. v. Iceland), 1974 I.C.J. 175 (July 25)
56

Spain and Canada were involved in an international incident when the Canadian navy seized the Estai, a Spanish trawler fishing in international waters just outside Canada's EEZ. David R. Teece, Global Overfishing and the Spanish-Canadian Turbot War: Can International Law Protect the High Seas Environment? 8 Colo. J. Int'l Envtl. L. & Pol'y 89 (1997)

36

attempts to assert power in the post-colonial international arena57. The system that had worked reasonably well for hundreds of years was suddenly in disarray. Dissatisfied with such a volatile status quo, the international community set out to remake the law of the sea58 by reviving the UNCLOS process59. To that end, the United Nations convened the Third United Nations Convention on the Law of the Sea ("UNCLOS III") with a mandate that included, inter alia, fishing and conservation of the living resources of the high seas60. 7. EXCLUSIVE ECONOMIC ZONEa)

It is to be noted that EEZ was a very pertinent issue that was

discussed in the instant case. Firtsly, it would be imperative to discuss what the term EEZ basically means. The exclusive economic zone is a belt of sea beyond the territorial sea that may not exceed 200 nautical miles from the baseline from which the territorial sea is measured. Although it has not ratified the Convention of the Law of the Sea, upon which the foregoing provision is based, the United States has established such an exclusive economic zone through a Presidential proclamation. The United States has taken the position,
57

James L. Malone, Who Needs the Sea Treaty, 54 Foreign Pol'y 44 (1984)

58

The United Nations General Assembly initiated this process of remaking the law of the sea when it weighed in on the seabed issue in 1970 with Resolution 2749, which proclaimed the seabed and subsoil of marine areas beyond the limits of national jurisdiction to be "the common heritage of mankind." G.A. Res. 2749, U.N. GAOR, 25th Sess., Supp. No. 28, at 24, U.N. Doc. A/8028 (1970). The resolution also called for a Third Conference on the Law of the Sea. The vote was 108-0 with 14 abstentions.
59

G.A. Res. 2750, U.N. GAOR, 25th Sess., Supp. No. 28, at 25, U.N. Doc. A/8028 (1970)

60

This conference produced a major agreement. Although the Convention was immediately signed by 117 states and 2 entities, it did not obtain the necessary 60 ratifications or accessions until 1994. UNCLOS III finally came into force on November 16, 1994, and now has 135 parties. United Nations Division for Ocean Affairs & Law of the Sea, Table showing the current status of the United Nations Convention on the Law of the Sea, and of the Agreement relating to the Implementation of Part XI of the Convention, at http://www.un.org/Depts/los/los94st.htm as on August 28, 2008

37

through that Presidential proclamation, that the 200-mile EEZ is declarative of customary international law.

b)

A coastal state has limited powers in the EEZ under customary

international law, as set forth in the Restatement Third of the Foreign Relations Law of the United States.61Thus, if the coastal state has clear grounds for believing that a foreign ship has violated applicable international rules, or the supplementary laws or regulations of the coastal state in the EEZ, and the ship is not in port but is navigating in the EEZ or territorial sea of the coastal state, that state may require the ship to give information regarding its identity and its port of registry, its last and next port of call, and other relevant information required to establish whether a violation has occurred.

c)

This zone has developed out of earlier, more tentative claims, relating to fishing zones62, and as a result of

particularly

developments in the negotiating processes leading to the 1982 Convention63.It marks a compromise between those states seeking a 200 mile territorial sea and those wishing a more restricted system of coastal state power. Indeed, the ICJ has stated categorically in the very case at hand64 for analysis that The Concept of the fishing zone, the area in which a state may claim
61

exclusive

jurisdiction

independently

of its

Mayaguezanos por la Salud y el Ambiente v. US, 198 F.3d 297 (1st Cir. 1999)

62

O Connell, International Law of the Sea, (Axon Press, Michigan, Chapter 14, 1992,) p. 557
63

Id at p. 559 Fisheries Jurisdiction Case

64

38

territorial

sea

for

this

purpose,

had

crystallized

as

customary law in recent years and especially since the 1960 Geneva Conference and that the extension of that fishing zone up to a 12 mile limit from the baseline appears to be generally accepted.

8.

FISHERIES
a)

MANAGEMENT AND CONSERVATION:-

A nation may assert jurisdiction beyond its territorial waters for of fisheries management and conservation. Such

purposes

jurisdiction is based on the special interest that a coastal state has in the preservation of the living resources in the high seas, adjacent to its territorial sea, rather than as an assertion of traditional sovereignty.65

b)

By virtue of a provision of the Fishery Conservation and

Management Act, the United States claims sovereign rights and exclusive fishery management authority over all fish, and all continental shelf fishery resources, within the exclusive economic zone, and unauthorized fishing is prohibited therein.66 Thus, the United States now asserts a 200-mile fishery conservation zone. Also, under the 1966 Convention on Fishing and Conservation of the Living Resources of the High Seas, a state may exercise a measure of control over fishing outside its territory by regulation of fishing and through adoption of unilateral measures of conservation in identifiable areas of the high seas adjacent to its territorial sea.

65

US v. Alaska, 422 U.S. 184 (1975) 16 U.S.C.A. 1821

66

39

9. JURISDICTION
a)

ON

HIGH SEAS

A state or nation has jurisdiction to prescribe a rule of law with

respect to the protection of certain general interests on the high seas and to enforce such rule in its territory or on the high seas, provided such action is consistent with international law as stated in the Convention on the High Seas.

b)

The high seas, which are located outside the territorial seas of the

various nations, are international waters not subject to the dominion of any single nation.67 Article 2 of the Convention on the High Seas68 provides that, the high seas being open to all nations, no state may validly purport to subject any part of them to its sovereignty.

10. WHY a)

DECIDING OF FISHERIES JURISDICTION IS IMPORTANT?

During the early negotiations leading to the 1982 Convention on

the Law of the Sea, in the period 1974-76 when most of the basic negotiations were completed on the non-seabed portions of the ultimate treaty, it was widely believed that fisheries issues engaged the most intense political interest on the part of States, both developed and developing.69 Non-resource issues, the foremost being navigation rights, were no doubt of greater significance to some states but were not as widely appreciated as those concerning resources. In contrast to deep seabed mining, which generated most
67

US v. Postal, 589 F.2d 862 (5th Cir. 1979) US v. Louisiana, 394 U.S. 11(1969)

68

69

William T Turke Coastal State Fishery Regulation Under International Law: A Comment On the La Bretagne Award Of July 17, 1986 (The Arbitration Between Canada and France), 25 San Diego L. Rev. 495

40

of the public attention, fisheries negotiations were taken seriously because they concerned immediately available resources and would affect extremely large current investments. On a global basis, beginning in the latter half of the 1950's, enormous commitments of capital and labor had been made to fisheries harvesting and processing which were occurring within areas that would probably come under coastal state jurisdiction.70 The outcome of the negotiations would have major impact on these investments and on the patterns of social, economic, and political life they represented.

b) Reaching compromises to resolve the fishery jurisdiction issues was, therefore, likely to encounter difficulties. In order to overcome serious differences of view, here, as on other controversial matters, successful negotiations were virtually certain to require formulas that were general and somewhat abstract but still technically capable of providing useful guidance for decisions.

70

Reisman, International Incidents: Introduction to a New Genre in International Law, 10 Yale J. Int'l L. 1 (1984)

41

ARTICLES:

CASE LAWS:

REPORTS

AND

RESOLUTIONS:

MISCELLANEOUS:

42

WEBSITES:

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