Part 2 The objects of international law, Ch.6 The high seas, Fisheries on the High Seas
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- High seas — Fisheries — Marine living resources
Fisheries on the High Seas
Garcia Amador, The Exploitation and Conservation of the Resources of the Sea (2nd ed, 1959) Bishop, Col Law Rev, 62 (1962), pp 1206–29 Gros, Hag R, 97 (1959), ii, pp 1–89 Alexander, The Law of the Sea (series of essays, 1967) Koers, The Enforcement of Fisheries Agreements on the High Seas: A Comparative Analysis of International State Practice (1970); International Regulations of Marine Fisheries: A Study of Regional Fisheries Organisations (1973); and The International Regulation of Fisheries (1974) Lyster, International Wildlife Law (1985) Birnie, International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whaling (1985) Birnie, The Role of Law in Protecting Marine Mammals in Ambio (1986), a journal of the Royal Swedish Academy of Science Fleischer, Hag R, 209 (1988), (p. 756) ii, pp 95–222 Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989) Oda, International Control of Sea Resources (1963, reprint with new introduction 1989) Freestone, The North Sea: Basic Legal Documents on Regional Environmental Cooperation (1991).
In customary international law, in the Geneva Convention on the High Seas, and in Part VII of the Convention on the Law of the Sea 1982, fishing on the high seas is recognised as one of the ‘freedoms’ which it is a principal purpose of the high seas legal regime to define and to protect. This freedom of high seas fisheries1 was seemingly put beyond doubt by the celebrated Behring Sea Fur Seals Arbitration Award (1893).2 This arose from a dispute between Great Britain and the United States of America regarding the seizure by the United States of British vessels from British Columbia engaged in fur seal fishing in the Behring Sea outside United States territorial waters. The Award rejected a claim by the United States to have the capacity to enforce, against British vessels on the high seas, regulations intended to protect and conserve the endangered species of fur seals. Nevertheless, the tension between freedom to fish and the evident need for means of implementing conservation regulations, so dramatically illustrated in the Behring Sea case, is the key to a series of developments and changes which continued throughout the 20th century. There is no legal difficulty about states devising and enforcing desirable regulations, on the high seas, against vessels bearing their own nationality and flag. But unless the state concerned enjoys for one reason or another a monopoly of a particular fishing area of the high seas, such regulations are not likely to be politically or economically acceptable unless other states concerned with the same fishery can agree suitable regulations by treaty, possibly also conferring upon each other the power of enforcement against each other’s vessels.
Accordingly, there have been two main lines of development of the law. First, there have been modifications, brought about mainly by treaty, and especially regional treaties, in the law governing high seas fisheries. But, secondly, and particularly in the decades following the end of the Second World War, there have been important extensions of national, and eventually also exclusive, fishing jurisdiction by coastal states in the shape of fishing, or so-called exclusive economic, zones extending up to 200 miles from territorial sea baselines. It will be convenient to deal with the extensions of coastal state jurisdiction in a separate chapter below,3 and to limit the present discussion to the basic high seas law.
References(p. 757) Indeed the structure of the developed law requires that the basic high seas law be considered first, because the exclusive economic zone, as will be seen later, is not a kind of extension of a territorial sea, but is an area sui generis, in which certain of the high seas freedoms are still enjoyed by all states (see Article 58 of the 1982 Convention).
The important group of treaties introducing schemes of agreed regulations of high seas fisheries have naturally and reasonably tended to be made on a regional and geographical basis.1 The general purpose of these arrangements was to try to ensure the conservation and, if possible, development of fish stocks, and the fairer distribution of yields, by good and informed management. The introduction in recent times of gross and wasteful and unselective techniques of fishing made such management not only desirable but sometimes necessary to ensure the survival of an industry. Many of these agreements have set up commissions to administer the treaty arrangements. It is clearly not practicable to attempt to deal with these agreements in any detail. Nevertheless, there is a particular kind of such agreement that perhaps calls for separate notice: those dealing with whales.
Attempts to protect whales have existed for many decades. On 24 September 1931, a widely signed Convention for the Regulation of Whaling was concluded.1 It laid down that licences are required References(p. 758) for vessels engaged in whaling, and that the contracting parties are bound to supply relevant information to the International Bureau for Whaling Statistics at Oslo. A further agreement for the regulation of whaling was signed on 8 June 1937,2 and supplemented by Protocols signed in London on 24 June 1938,3 and 7 February 1944.4 The Convention for the Regulation of Whaling of 2 December 1946,5 consolidates previous agreements on the subject. It prohibits the taking or killing of grey whales or right whales as well as calves or suckling whales or female whales which are accompanied by calves or suckling whales. It also forbids the use of a factory ship or whale catcher attached thereto for the purpose of taking or treating baleen or humpback whales in the areas specified in the Convention. It provides for the establishment of an International Whaling Commission entrusted with the task of conducting studies and collecting and disseminating information as well as of amending the provisions of the Convention with regard to determining the categories of protected species, open and closed fishing areas, methods and intensity of whaling, type and specification of permitted gear and apparatus, and the like. However, these amendments are not binding upon those contracting parties which object to them. The 1946 Convention has been amended from time to time, the latest amendments being those adopted in June 1989 at the 41st Annual Meeting of the International Whaling Commission at San Diego.6
Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall co-operate with a view to the conservation of marine mammals and in the case of References(p. 759) cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.’
Article 120, in Part VII dealing with the high seas, simply provides that Article 65 ‘also applies to the conservation and management of marine mammals on the high seas’.
Besides these regional agreements for management and conservation, there are the effects of general, codificatory conventions to consider. The Geneva Convention on the High Seas 1958, in its Article 2, states that the freedom of the high seas includes inter alia the freedom of fishing. This is stated without qualification other than that this, like the other freedoms, is ‘recognized by the general principles of international law’, and that it ‘shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedoms of the high seas’. And indeed the regional agreements may largely be regarded as being attempts to administer the latter qualification.
There was, however, another convention emanating from the 1958 Geneva Conference: the Convention on Fishing and the Conservation of the Living Resources of the High Seas.1 This is a quite detailed and extensive instrument containing 22 articles. In Article 1 it does qualify the freedom of fishing by providing that ‘all States have the right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, (c) to the provisions contained in the following Articles concerning conservation of the living resources of the high seas’.2 ‘Conservation’ is there defined in terms of ‘the aggregate of the measures rendering possible the optimum sustainable yield from these resources so as to secure a maximum supply of food and other marine products’.3 Further articles go on to provide for the taking of initiatives for conservation measures and for the resulting obligations of other states engaged in fishing a particular stock. But in many ways the most significant provision is one which puts a ‘coastal state’ in a special position by providing4 that it ‘has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea’. This fertile idea was in the event shortly to be absorbed so-to-speak in the much larger idea that coastal states might declare fishing zones or exclusive economic zones of up to 200 nautical miles. It is not surprising therefore that this Geneva Convention has not proved to be as significant a step as might have been supposed in 1958.5
References(p. 760) Nevertheless, the Convention on the Law of the Sea 1982, in Part VII, Section 2, which is headed ‘conservation and management of the living resources of the high seas’, echoes the 1958 general ideas, with however some important differences of language. Thus, Article 116 of the 1982 Convention, concerning the right of all states to engage in fishing on the high seas, follows the threefold qualification pattern of Article 1 of the 1958 Convention, but speaks not of ‘the interests and rights of coastal States as provided for in this Convention’, but of ‘the rights and duties as well as the interests of coastal States provided for’ in the part of the Convention concerned with the exclusive economic zone. For the rest the 1982 Convention has some rather more elaborated provisions about the cooperation of states in the conservation and management of living resources;6 the measures needed for conservation and restoration of stocks,7 and applies to the high seas the provisions of Article 65 which is intended to protect marine mammals in the exclusive economic zone.
1 Certain sedentary fisheries, such as those off Ceylon and in the Persian Gulf, have been regarded nevertheless as subject to historical national claims (see 8th ed of this vol, p 618, n 1); but it is appropriate to deal with this problem under the law now governing the continental shelf, for which see § 314.
2 Moore, International Arbitrations, i, p 755; Martens, NRG, 2nd series, 21, p 439; McNair, Opinions, i, pp 241ff. The Award, in a capacity conferred upon it by the compromis, also directed the parties to put into force certain regulations for the protection of the fur-seal fishing industry (see Behring Sea Award Act 1894, and Seal Fisheries (North Pacific) Act 1895), but these proved ineffective and were replaced by a Convention of 1911 between Great Britain, Japan, Russia and the USA (Parry, Consolidated Treaty Series, 214 (1911), p 81).
3 See § 327.
1 See the 8th ed of this vol, §§ 282–5; and O’Connell, The International Law of the Sea (ed Shearer, vol 1, 1982), pp 548–51. See especially Koers, The International Regulation of Fisheries (1974). A list of fishery agreements is also found in Attard, The Exclusive Economic Zone in International Law (1987), xlii–xlvii. Examples are: Agreement for the Establishment of the Indo-Pacific Fisheries Commission 1948 (UNTS, 120, p 59); Agreement for the Establishment of a General Fisheries Council for the Mediterranean 1949 (UNTS, 126, p 237); International Convention for the High Seas Fisheries of the North Pacific Ocean 1952 (UNTS, 205, p 65); North-East Atlantic Fisheries Convention 1980 (Cmnd 8474); North-West Atlantic Fisheries Convention 1978 (Cmnd 7569) and North Atlantic Fisheries Convention 1967 (TS No 40 (1977)); Rio de Janeiro Convention 1966 (UNTS, 673, p 63); Rome Convention on the South-East Atlantic 1969, made under the auspices of the FAO (UNTS, 801, p 101); Antarctic Seals Convention 1972 (ILM, 11 (1972), p 251); Baltic Sea Fisheries Convention 1973 (ILM, 13 (1972), p 1291); see also European Fisheries Convention 1964, which was considered in DPP v; McNeill & Others  NILR, 177; ILR, 59, p 345 (Northern Ireland Court of Appeal). Also Convention for the Conservation of Salmon in the North Atlantic 1982 (Cmnd 8830). See also Yanagida on the 1985 Pacific Salmon Treaty between Canada and the US in AJ, 81 (1987), pp 577–92. For a summary of the convention regimes see O’Connell, op cit, pp 548–51.
Even after the development of 200-mile fishing zones and of the exclusive economic zone, there was need still for regional agreements of a new kind based upon the new law: see eg the Treaty of 1987 between the US and certain Pacific Island States, setting out the conditions for US fishing by licence in waters subject to the jurisdiction of those states; ILM, 26 (1987), p 1048. For a 1989 Convention to prohibit driftnet fishing in the South Pacific, see ILM, 29 (1990), p 1449; for a resolution by the General Assembly in 1989 on large-scale pelagic driftnet fishing, see ibid, p 1555. For Common Market participation in the legal regime of Baltic Sea Fisheries, see M Fitzmaurice in Germ YBIL, 33 (1991), pp 214–35.
1 AJ, 30 (1936), Suppl, p 167; TS No 33 (1934), Cmd 4751. The Convention was ratified by Great Britain in October 1934. It entered into force in January 1935. See Whaling Industry (Regulation) Act 1934 (24 and 25 Geo 5, c 49), and the Whaling Industry (Ship) Regulations, 1934 (SR & O, 1934, No 961). See also Raestad in RI (Paris), 2 (1928), pp 595–642; Jessup, Hag R, 29 (1929), iv, pp 481–503; Wolgast, ZV, 21 (1937), pp 151–72, and 23 (1939), pp 1–22; Vallance, AJ, 31 (1937), pp 112–19; Leonard, AJ, 35 (1941), pp 90–113. See also for a full account of the law, Birnie, IUCN Environmental Policy and Law Paper No 19 (International Union for Conservation of Nature and Natural Resources, Geneva).
2 Cmd 5487 (1937); AJ, 34 (1940), Suppl, p 108; Hudson, Legislation, vii, p 754. It entered into force on 7 May 1938, after having been ratified by Great Britain, the USA, Germany, Eire, New Zealand, and Norway; Canada and Mexico acceded.
3 AJ, 34 (1940), Suppl, p 115; Hudson, Legislation, vii, p 762. The Convention of 1937 is of wider scope than that of 1931 and applies also to grey whales.
4 This Protocol was intended to regulate whaling for the first season in which whaling operations were resumed after the cessation of hostilities. It provides that the number of baleen whales caught … shall not exceed 16,000 blue whale units’: Parliamentary Papers, Misc No 1 (1944), Cmd 6510.
5 The Convention entered into force in 1948 after ratifications had been deposited on behalf of Australia, the Netherlands, Norway, South Africa, the USSR, the UK and the USA. For the text, see TS No 5 (1949), Cmd 7604; AJ, 43 (1949), Suppl, p 174; UNTS, 161, p 72.
6 See TS No 1 (1991).
7 Articles 61, 62, 63 and 64. See also § 334ff.
1 UNTS, 559, p 285; TS No 39 (1966); Cmnd 3028. See Herrington in The Law of the Sea (ed Alexander), pp 26–35; Noblett in ibid, pp 36–45.
5 See, however, the Judgment of the ICJ in the Fisheries Jurisdiction cases, (UK v Iceland, ICJ Rep (1974), p 3, at para 58; and Federal Republic of Germany v Iceland, ICJ Rep (1974), p 175, at para 50), though finding that Iceland’s declaration of a 50-mile fishing zone was not opposable either to the UK or to Germany, did make the following important finding: ‘State practice on the subject of fisheries reveals an increasing and widespread acceptance of the concept of preferential rights for coastal States, particularly in favour of countries or territories in a situation of special dependence on coastal fisheries.’