PUBLIC INTERNATIONAL LAW: GROUP PROJECT

[October 6, 2008]

DDIVYAIVYA M MEGHWANSHIEGHWANSHI, 322| I, 322| IPSITAPSITA G GANGULYANGULY, 325| N, 325| NITINITIN K KAUSHALAUSHAL, 331, 331 MMITAITA B BARIKARIK, 332 | R, 332 | RISHABHISHABH C CHOPRAHOPRA, 337, 337

FISHERIES JURISDICTION CASE: AN ANALYSIS

FEDERAL REPUBLIC OF GERMANY V. ICELAND

1974 ICJ 175

1. FACTUAL MATRIX 3

2. ISSUES INVOLVED 7

3. JUDGMENT OF THE CASE 9

4. CASE ANALYSIS 15

BIBLIOGRAPHY 36

2

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.

AAPRILPRIL 5, 1948 5, 1948- Law enacted by the Althing (Parliament of Iceland)

titled 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.

MMARCHARCH 19, 1952 19, 1952- In compliance with above law; regulations issued

by 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.

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.

3

JJUNEUNE 1, 1958 1, 1958- Iceland government announced their intention to

extend their fisheries limit to a distance of 12 miles from the baselines

round the coast of Iceland.

JJUNEUNE 16, 1958 16, 1958- Verbal Note issued by the Federal Republic of

Germany 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.

JJUNEUNE 30, 1958 30, 1958- - Decree No. 70 issued allowing the Iceland to extend

its fisheries limit to 12 miles to become effective on September 1,

1958.

JJULYULY 16, 1958 16, 1958- Verbal Note issued by the Government of the Federal

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.

MMAYAY 5, 19595, 1959- Althing passed a resolution on account of the various

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

4

12 miles and a smaller fishing limit than 12 miles from baseline

around the country is out of question.

19601960- Failure of the second United Nations Conference on the Law of

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

MMARCHARCH 13, 1961 13, 1961-. Foreign Ministry of Iceland notified the Embassy

of 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.

JJUNEUNE 19, 1961 19, 1961 TOTO J JULYULY 6, 1961 6, 1961- The Federal Republic of Germany

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.

JJULYULY19, 196119, 1961- An agreement came into effect immediately between

the 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

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

5

was similar to the Icelandic- British Exchange of Notes which came

into effect on March 11, 1961.

RRELEVANTELEVANT CLAUSESCLAUSES OFOF THETHE E EXCHANGEXCHANGE OFOF N NOTESOTES--

(a)That the Government of the Federal Republic of Germany would no

longer object to a 12 miles fisheries zone around Iceland measured

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"

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

6

JJULYULY 14, 1971 14, 1971- The dispute arose on account of a policy statement

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

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.

MMAYAY 26, 1972 26, 1972- An application was filed by the Federal Republic of

Germany before ICJ instituting proceedings against the Icelandic

government.

7

1.1. WWHETHERHETHER THETHE I INTERNATIONALNTERNATIONAL C COURTOURT OFOF J JUSTICEUSTICE HASHAS THETHE

JURISDICTIONJURISDICTION ININ THETHE PRESENTPRESENT MATTERMATTER RAISEDRAISED BYBY THETHE F FEDERALEDERAL

RREPUBLICEPUBLIC OFOF G GERMANYERMANY??

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

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.

8

2.2. WWHETHERHETHER THETHE R REPUBLICEPUBLIC OFOF I ICELANDCELAND CANCAN UNILATERALLYUNILATERALLY EXTENDEXTEND

ITSITS EXCLUSIVEEXCLUSIVE FISHERIESFISHERIES JURISDICTIONJURISDICTION/ / LIMITLIMIT TOTO AA ZONEZONE OFOF 50 50

NAUTICALNAUTICAL MILESMILES COVERINGCOVERING THETHE CONTINENTALCONTINENTAL SHELFSHELF INTOINTO ITIT??

WWHETHERHETHER ITIT CANCAN TERMINATETERMINATE THETHE EXCHANGEEXCHANGE OFOF NOTESNOTES OFOF 1961 1961

BETWEENBETWEEN BOTHBOTH THETHE NATIONSNATIONS UNILATERALLYUNILATERALLY??

VALIDITYVALIDITY OFOF THETHE EXCHANGEEXCHANGE OFOF NOTESNOTES

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.

9

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,

Vice-President Ammoun and Judges Sir Gerald Fitzmaurice, Padilla

Nervo!. Forster, Gros, Bengzon, Petrkn, Lachs, Onyearna, Dillard,

Ignacio-Pinto, 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

10

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

11

1946, which it made on 29 October 1971 and deposited with the

Registrar of the Court on 22 November 1971.

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

12

opinion on matters of substance, but also any pronouncement

which might prejudge or appear to prejudge any eventual decision

on the merits.

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

13

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 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

14

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 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

15

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 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.

16

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:-

1.1. FFINDINGSINDINGS

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

17

2.2. ICJ’ICJ’SS J JURISDICTIONURISDICTION::

Furthermore, any question as to the jurisdiction of the Court, deriving

from an alleged lapse through changed circumstances, is resolvable

through the accepted judicial principle enshrined in the Court’s

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

Iceland’s 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 jurisdiction5. Hence,

it is very clear that the ICJ had jurisdiction to hear the dispute

between Iceland and Federal Republic of Germany.

3.3. PPROCEDURALROCEDURAL A ASPECTSSPECTS--

In this case, the procedural formalities were strictly adhered to by the

International Court of Justice. Some of them may be demonstrated as

follows:-

4 Article 36, paragraph 6, ICJ Statute

5 Article 53, ICJ Statute

18

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

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 Hon’ble 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.

4.4. IINTERNATIONALNTERNATIONAL F FISHERIESISHERIES C CASESASES: ICJ : ICJ ANDAND ITLOS ITLOS

a) 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

6 Article 44, paragraph 2, ICJ Statute

7 Article 31, paragraph 5, ICJ Statute

8 ICJ: 18 December 1951

19

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.

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

9 ICJ: 1972-1974

10 ICJ: 1972-1974

20

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]

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

11 ICJ: 4 December 1998

12 ITLOS: 27 August 1999

21

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]

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]

13 Annex VII Arbitration: 27 August 1999

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

22

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

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.

15 ITLOS: 20 April 2001

16 ITLOS: 19 December 2002

23

i) Saint Vincent and the Grenadines v. Guinea Bissau17 [JUNO

TRADER CASE]

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.

5.5. IINSTANCENSTANCE C CONCERNINGONCERNING F FISHERIESISHERIES J JURISDICTIONURISDICTION B BYY

IINTERNATIONALNTERNATIONAL C COURTOURT O OFF J JUSTICEUSTICE--

a) 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.

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 17 ITLOS: 18 December 2004

24

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

concerning the future of their shared fishery resources. By

attempting to conclude the East Coast Fisheries Agreement, the

U.S. 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

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

25

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 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

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

26

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 cooperative fisheries management between the

two countries. The recently approved Canada--United States

Agreement of fisheries enforcement22 now requires that each

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)

22 59 Fed.Reg. 26

27

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

haddock.25 At a time when the United States is urging other

countries to join fisheries management agreements, and

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.

25 139 CONG.REC. E2159

28

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 based upon their recognition of the appropriate legal

rules and regulations. Thus, the development of customary 26 L.C. Green, “International Law: A Canadian Perspective” 40 (1984) Can Int’l L Rev. 328 at 342

29

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 standard. The

conclusion will attempt to draw implications for the management of

transboundary fish stocks on Georges Bank.

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

fisheries of Georges Bank and represented the best objective

30

evidence of what the parties themselves considered an equitable

solution in relation to fisheries. The U.S. on the other hand,

dismissed the fisheries agreement outright because the rights to

Georges Bank fishery resources granted to Canada by the

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?

31

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

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

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 at http://www.fao.org/docrep/w9900e/w9900e02.htm as visited on August 23, 2008

32

(“DWFNs”)30 have 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

jurisdiction to encompass currently unprotected fish stocks on the

high seas31. As the regulatory regime now stands, coastal states

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

30 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 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

35 Id Article 61, at 420-21

33

fisheries sustainably within their national jurisdiction and can rely

on their inherent police powers to compel compliance36.

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. 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 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 Un-identified 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)

34

e) The Truman Proclamation triggered a major change in customary

international law. Claims of sovereignty over the continental shelf

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

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)

35

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 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

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.

36

shelf issue, claims of sovereignty over these waters were hotly

contested and did not win recognition by most other states.

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

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

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

37

could have exclusive or preferential fishing rights outside the

territorial sea, ought to be recognized in international law53.

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

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, 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 two-thirds 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)

38

international confrontations arising over access to fisheries56.

Access to sea resources also became a rallying cry for the so-called

developing countries in their 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.

7.7. EEXCLUSIVEXCLUSIVE E ECONOMICCONOMIC Z ZONEONE--

a) 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

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)

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

39

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, 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,

particularly relating to fishing zones62, and as a result of

61 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

40

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 exclusive jurisdiction independently of its

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.

8.8. FFISHERIESISHERIES MANAGEMENTMANAGEMENT ANDAND CONSERVATIONCONSERVATION:-:-

a) A nation may assert jurisdiction beyond its territorial waters for

purposes of fisheries management and conservation. Such

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

63 Id at p. 559

64 Fisheries Jurisdiction Case

65 US v. Alaska, 422 U.S. 184 (1975)

41

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.

9.9. JJURISDICTIONURISDICTION ONON H HIGHIGH S SEASEAS

a) 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,

66 16 U.S.C.A. § 1821

67 US v. Postal, 589 F.2d 862 (5th Cir. 1979)

68 US v. Louisiana, 394 U.S. 11(1969)

42

no state may validly purport to subject any part of them to its

sovereignty.

10.10. WWHYHY DECIDINGDECIDING OFOF FISHERIESFISHERIES JURISDICTIONJURISDICTION ISIS IMPORTANTIMPORTANT??

a) 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 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.

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

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

43

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.

44

AARTICLESRTICLES ::

CCASEASE L LAWSAWS::

RREPORTSEPORTS ANDAND R RESOLUTIONSESOLUTIONS::

45

MMISCELLANEOUSISCELLANEOUS::

WWEBSITESEBSITES::

46