Robin R Churchill
- Exclusive fishery zone — Marine living resources — Arbitration, procedure — International courts and tribunals, procedure — UNCLOS (UN Convention on the Law of the Sea) — Prompt release
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 For the purposes of this contribution, a fisheries dispute is a dispute between two or more States or other subjects of international law that involves the catching of fish or that, although framed in other terms, is one where the underlying issue concerns the catching of fish. By ‘fish’ in this context are meant not only species that are fish in a strict biological sense but also species that are typically caught by fishing vessels, such as crustaceans (eg crabs, lobsters, and shrimp) and cephalopods (eg octopus and squid). Disputes relating to marine mammals, such as seals and whales, are not covered (Compliance mechanism: International Whaling Commission).
2 There have been fisheries disputes going back to at least the seventeenth century, but they have been particularly numerous since 1945 as developments in technology and increased investment in the fishing industry led to a huge increase in the number and size of vessels, thus greatly increasing competition for fish. Such competition has been exacerbated by the open access nature of fisheries, whereby fish in their wild state are not owned by anyone. Only when they are caught do they become the property of the fisher(s) that caught them. This open access nature means that in principle anyone may take part in a fishery. Furthermore, although fish are a renewable resource, they are not inexhaustible. Not surprisingly, intense competition for a finite resource among fishing vessels of different nationalities has been a fertile ground for international disputes.
3 The focus in this contribution is on fisheries disputes that have been the subject of adjudication, as that term is used in this Encyclopaedia. Since the development of international adjudicatory procedures in the latter part of the nineteenth century, there have been dozens of fisheries disputes. As with international disputes generally, only a small minority of fisheries disputes have been the subject of adjudication.
4 Before the adoption of the United Nations Convention on the Law of the Sea (‘UNCLOS’) in 1982, international fisheries law was plagued with uncertainty, giving rise to numerous disputes. The handful that were adjudicated are discussed briefly in section B below. UNCLOS introduced welcome certainty into the law, and also provided for a system of compulsory dispute settlement. That system and the use to which it has so far been put in the case of fisheries disputes are the subject of section C. UNCLOS also introduced a special procedure for the prompt release of arrested fishing vessels (Prompt Release of Vessels and Crews), which is examined in section D. Fisheries on the high seas are regulated not only by UNCLOS, but also by an implementing agreement—the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) (‘Fish Stocks Agreement’)—the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993) (the ‘Compliance Agreement’) and a network of regional fisheries management organizations (‘RFMOs’). Section E looks at the adjudication of fisheries disputes under those instruments. Sections F and G deal with the adjudication of two types of dispute where fisheries have been an indirect issue, namely maritime boundary and trade disputes. Finally, section H says a few words about the numerous fisheries disputes that have come before the Court of Justice of the European Union (‘CJEU’) (European Union, Court of Justice and General Court).
B. Pre-UNCLOS Fisheries Disputes
5 A major deficiency of international fisheries law before UNCLOS was that there was no agreement on the extent or nature of coastal States’ jurisdiction over fisheries. That gave rise to numerous disputes, particularly between coastal States and traditional distant-water fishing States such as Japan, the former Soviet Union, the United Kingdom, and the United States (‘US’). However, only a tiny handful of such disputes were submitted to adjudication. As there is nothing unusual about how such adjudication operated, and as the decisions of the adjudicatory bodies concerned are now largely of historical interest, only a brief account will be given of these adjudications.
6 Two disputes were submitted to arbitration. The North Atlantic Coast Fisheries Case, Great Britain v US, 1910, was concerned primarily with questions about the extent of Great Britain’s competence to regulate the activities of those US vessels permitted to fish in Canadian waters. In the La Bretagne Case, Canada v France, 1986, para 52, a tribunal found that Canada had no competence under a 1972 bilateral treaty with France to prohibit French vessels permitted to fish in Canadian waters from filleting their catch there, nor would Canada have had such competence had UNCLOS been in force. The latter finding has been heavily criticized by some commentators (eg Burke, 1988, 517–26) and was implicitly rejected by the International Tribunal for the Law of the Sea (‘ITLOS’) in the M/V Virginia G Case (Panama/Guinea-Bissau), 2014, paras 214–15. (See also para 14 below.)
7 Two pre-UNCLOS fisheries disputes were submitted to the International Court of Justice (ICJ). The first was the Fisheries Case (United Kingdom v Norway), 1951. In this case the United Kingdom challenged the validity in international law of straight baselines drawn by Norway along its northern coast. The challenge was motivated by the fact that the effect of using such straight lines as the baseline, rather than the low-water line (which the United Kingdom advocated), was to extend farther seawards the outer limit of the Norwegian territorial sea, thus reducing the area of high seas where British vessels had fished for several decades. The United Kingdom invoked declarations of itself and Norway under the optional clause as the basis of the Court’s jurisdiction (see also Optional clause declarations: International Court of Justice (ICJ)). Although the case was argued, and the judgment couched, only in terms of the law relating to baselines, the Court recognized that fisheries interests lay behind the dispute by labelling the case the ‘Fisheries Case’ and making reference to the importance of fisheries for the economy of northern Norway (Fisheries Case, Judgment, paras 127–28). The Court found that Norway’s straight baselines were in conformity with international law. At the time that it was given, the Court’s judgment was regarded by some commentators (eg Waldock, 1951, 167–71) as a piece of judicial legislation. However, the rules enunciated by the Court were taken up by the International Law Commission (ILC) in preparing its draft articles for the First UN Conference on the Law of the Sea, and at that Conference were incorporated in the Territorial Sea Convention as Article 4, and then eventually in Article 7 UNCLOS. Indeed, some of the phrasing in the Conventions is taken verbatim from the Court’s judgment.
8 The second fisheries dispute referred to the ICJ was the Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland), 1974. The cases concerned Iceland’s extension of its fishery limits to 50 nautical miles (‘nm’) in 1972, which both the United Kingdom and Germany regarded as contrary to international law. They sought to found the Court’s jurisdiction on a compromissory clause in bilateral agreements of 1961 that had settled an earlier dispute concerning Iceland’s extension of its fishing limits from four to 12 miles in 1958. The Court rejected Iceland’s arguments that the 1961 agreements were invalid because they had been procured by coercion, had lapsed, or had terminated because of a fundamental change of circumstances, and thus held that it had jurisdiction. The Court also made interim measures orders, requiring Iceland not to take any enforcement action against British and German vessels fishing beyond 12 nm and setting limits to the amounts of fish that could be taken by those vessels. The Court gave its judgment on the merits in July 1974. By that time the Third UN Conference on the Law of the Sea was underway, and it had already become evident that any convention that might result from the Conference would include provision for extended coastal State fisheries jurisdiction. That may have influenced the Court to decline to pronounce on the general validity in international law of Iceland’s 50 nm fishery limit, although it did find that the limit was not opposable to Germany (at 198) and the United Kingdom (at 29). Less than three years after the judgment, all the parties to the case had extended their fishing limits to 200 nm as a result of the rapid development of the law.
9 The remaining pre-UNCLOS fisheries dispute referred to adjudication was the Red Crusader Incident (1961). This concerned the actions taken by a British vessel allegedly fishing illegally in Faroese waters to resist arrest by a Danish fisheries protection vessel. Denmark and the United Kingdom sought to resolve the dispute by setting up an ad hoc commission of inquiry. Following publication of the commission’s report in 1962, the two States settled the dispute by waiving their claims. According to Merrills, ‘in respect of its composition, its procedure and its findings, the Red Crusader inquiry was a fundamentally judicial operation’, in many respects resembling arbitration (Merrills, 2011, 50). Two of the three members of the commission were lawyers, the procedure included both written proceedings and a hearing, and the commission’s report included findings of both fact and law. The findings of law were, however, limited, and did not include, for example, consideration of the legality of the fishing limits of the Faroe Islands at that time, which were contested by the United Kingdom—a matter Merrills suggests would have been considered in arbitration (2011, at 51).
C. Fisheries Disputes under UNCLOS
10 UNCLOS put an end to the previous uncertainty over the extent and nature of coastal State fisheries jurisdiction. It established a 200 nm limit for such jurisdiction, normally comprising a 12 nm territorial sea and an exclusive economic zone (‘EEZ’) beyond, and laid down in considerable detail the rights and duties of coastal States in the EEZ. In addition, UNCLOS introduced, in Part XV, compulsory settlement for disputes relating to its interpretation and application. Where a dispute cannot be settled by consensual means, either party may refer the dispute unilaterally to judicial settlement. Parties to UNCLOS may choose a preferred forum—the ITLOS, the ICJ, arbitration in accordance with Annex VII, or arbitration in accordance with Annex VIII. Where no choice has been made or the choices of the parties to the dispute do not coincide, the dispute will be settled by Annex VII arbitration. There is, however, a major exception to this system for fisheries disputes. Under Article 297 (3) UNCLOS a coastal State is not obliged to accept submission to compulsory judicial settlement of disputes concerning the exercise of its sovereign rights in respect of fisheries in its EEZ. Some such disputes may instead be referred to compulsory conciliation. The application of Article 297 (3) UNCLOS was considered by the arbitral tribunal in the Chagos Marine Protected Area Case, Mauritius v United Kingdom, 2015. In this case Mauritius contested the legal validity of the marine protected area (‘MPA’) that the United Kingdom had established in the whole of the 200-mile zone around the Chagos Islands. The United Kingdom invoked Article 297 (3) UNCLOS to argue that the tribunal lacked jurisdiction to consider the matter on the ground that as there a complete prohibition on fishing within the MPA, the dispute was about fisheries in the EEZ. The tribunal rejected that argument. It did ‘not accept that the MPA is solely a measure relating to fisheries’ (at para 286). ‘Having argued for the necessity and importance of the MPA by reference to environmental concerns that extend well beyond the management of fisheries, it is not now open to the United Kingdom to limit the jurisdiction of this tribunal with the argument that the MPA is merely a fisheries measure’ (at para 291). Furthermore, coral, whose protection was a particular focus of the MPA, was a sedentary species within the meaning of Article 77 (4) UNCLOS: such species were excluded from the regime of the EEZ by Article 68 UNCLOS and thus beyond any possible application of Article 297 (3) UNCLOS (at para 304). However, insofar as Mauritius claimed rights relating to fishing in the EEZ of the Chagos Archipelago, Article 297 (3) UNCLOS did exclude the tribunal’s jurisdiction (paras 299–301). Article 297 (3) UNCLOS was also considered in the Arbitration between Barbados and Trinidad and Tobago, 2006. In this case Barbados had requested the arbitral tribunal, depending on the location of the maritime boundary that the tribunal was to determine, to order that Barbadian fishers be allowed access to stocks of flying fish in Trinidad and Tobago’s EEZ. However, the tribunal found that it had no jurisdiction to rule on that question because the matter was ultra petita: furthermore, its jurisdiction was excluded by Article 297 (3), Trinidad and Tobago having made it clear that it was not prepared to allow the Tribunal to consider the matter (at paras 273–83).
11 While UNCLOS clarified much of the law, many of its provisions relating to fisheries are open-textured. Not surprisingly, therefore, UNCLOS did not put an end to fisheries disputes. However, only a handful of disputes have been referred for settlement under Part XV since UNCLOS came into force in 1994. It is possible that the exception in Article 297 (3) UNCLOS has dissuaded some States from initiating proceedings, although there is no publicly available evidence to suggest that, nor has any attempt been made to use the alternative conciliation procedure. Only in the two cases referred to in the previous paragraph has Article 297 (3) UNCLOS been applied.
12 Two fisheries cases referred for judicial settlement under Part XV were subsequently withdrawn without any consideration of jurisdiction or the merits as the parties managed to settle their disputes through negotiation. Those cases were the Swordfish Case, Chile v European Community (referred to arbitration in 2000, subsequently transferred by agreement to a special chamber of the ITLOS and terminated in 2009), which concerned allegations by Chile that fishing by Spanish vessels for swordfish on the high seas adjacent to Chile’s maritime zones breached the European Community’s conservation obligations under UNCLOS, and the Atlanto-Scandian Herring Case, Denmark in respect of the Faroe Islands v European Union (referred to arbitration in 2013, terminated in 2014), in which Denmark (on behalf of the Faroe Islands) argued that the European Union (‘EU’) had failed to co-operate over the management of a shared stock as required by Article 63 (1) UNCLOS. Both disputes were also referred to the World Trade Organization (WTO) for adjudication, as discussed in section G below.
13 In the Southern Bluefin Tuna Case, Australia and New Zealand v Japan, 2000 (Southern Bluefin Tuna Cases), the Annex VII arbitral tribunal found that it lacked jurisdiction. The case concerned a dispute over an experimental fishing programme by Japan for the already over-exploited southern bluefin tuna. Having failed to settle the dispute under the dispute settlement provisions of the Convention for the Conservation of Southern Bluefin Tuna (‘CCSBT’), Australia and New Zealand referred the dispute to an Annex VII arbitral tribunal, arguing that Japan was in breach of its conservation obligations under UNCLOS. At the same time they requested the ITLOS to order provisional measures under Article 290 (5) UNCLOS pending constitution of the arbitral tribunal. The ITLOS made such an order in 1999, finding that prima facie the tribunal would have jurisdiction and that the situation was urgent, and ordered the parties, inter alia, to limit their catches of southern bluefin tuna to prescribed limits and to refrain from conducting any experimental fishing programme. The tribunal disagreed with the ITLOS over its jurisdiction. While it accepted that the same facts could give rise to distinct disputes under both the CCSBT and UNCLOS, it held that the former was an agreement within the meaning of Article 281 UNCLOS and therefore precluded it from exercising jurisdiction. That decision was heavily criticized by the dissenting member of the tribunal (Separate Opinion of Justice Keith, 53–57) and commentators (eg Boyle, 2001, 448–50), and was described as ‘not in line with the intended meaning of Article 281’ by the Annex VII tribunal in the South China Sea Arbitration, Philippines v China, Jurisdiction and Admissibility, 2015, para 223. The dispute was eventually settled by negotiation. Mansfield, one of New Zealand’s counsel in the case and a participant in negotiations in the CCSBT, credits the order of the ITLOS with helping the parties to resolve the dispute (2004, at 263–66).
14 Two fisheries disputes have been adjudicated on their merits. The first was M/V Virginia G Case, Panama v Guinea-Bissau, 2014. Although begun as a unilateral resort by Panama to arbitration under Annex VII UNCLOS, the dispute was transferred to ITLOS by agreement of the parties. The dispute did not relate to fishing as such, but to an ancillary matter, the supply of fuel oil to fishing vessels by an oil tanker. This activity is known as bunkering and allows fishing vessels to continue fishing without having to break off to go into a local port if they run short of fuel. That is greatly resented by coastal States because it deprives them of the tax revenue that they would otherwise have obtained from the sale of fuel and have consequently sought to exercise jurisdiction to control bunkering. In the present case the Virginia G was an oil tanker registered in Panama that had engaged in bunkering in Guinea-Bissau’s EEZ without obtaining the authorisation required by Guinea-Bissau’s law and had been arrested by Guinea-Bissau. Panama argued that Guinea-Bissau had no jurisdiction to regulate bunkering in its EEZ. This question had earlier been raised before the ITLOS, but left unanswered in the M/V Saiga No 2 Case, St Vincent v Guinea, 1999, paras 137–38 (Saiga Cases). The question turns on Article 62 (4) UNCLOS, which provides that nationals of other States fishing in the EEZ ‘shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State’. Such laws and regulations ‘may relate, inter alia, to the following’, and there then follows a list of 11 different types of measure, which do not include bunkering. In the Virginia G Case the ITLOS held that under Article 62 (4) UNCLOS a coastal State could regulate any activity that had a ‘direct connection to fishing … [S]uch connection to fishing exists for the bunkering of foreign vessels fishing in the exclusive economic zone since this enables them to continue their activities without interruption at sea’ (at para 215). Guinea-Bissau was therefore entitled to require bunkering to be authorized and to charge a fee ‘for services rendered in connection with the authorization of bunkering’ (at para 234), but it was not permitted to impose a tax. The ITLOS also found that Guinea-Bissau had been entitled, under Article 73 UNCLOS, to arrest the Virginia G for engaging in bunkering without the necessary authorization (at para 265), but held that the subsequent confiscation of the ship, although in principle a permissible sanction under Article 73 UNCLOS, did not, in the circumstances of the case, satisfy the test of necessity in Article 73 UNCLOS because the ship had not intentionally violated Guinea-Bissau’s laws (at paras 266–69). At the beginning of its judgment in the case the ITLOS had to deal with various issues of admissibility raised by Guinea-Bissau, one of which was whether Panama was claiming a direct violation of its own rights or exercising a right of diplomatic protection on behalf of the Virginia G (in which case domestic remedies would have had to have been exhausted). The ITLOS held, by a relatively small majority, that the preponderant element in the case was the former, and therefore the question of exhausting domestic remedies did not arise.
15 The second fisheries case dealt with on the merits is the South China Sea Arbitration, Philippines v China, Award, 2016. Fisheries were a relatively minor aspect of the case, which centred on China’s claim of historic rights in the South China Sea and the legal nature of various insular features and China’s construction activities thereon. As far as fisheries were concerned, the tribunal found that China had breached Article 56 UNCLOS by adopting a moratorium on fishing in an area of the South China Sea that included the Philippines’ EEZ (at paras 712 and 716); had breached Article 58 (3) UNCLOS requirement to have due regard to the fisheries rights of the Philippines by not exercising due diligence to prevent its fishermen from fishing in the Philippines’ EEZ (at paras 753–57); and had violated Articles 192 and 194 (5) UNCLOS by failing to exercise due diligence to prevent its vessels from harvesting endangered species (including coral, turtles, sharks and giant clams) on a significant scale and from using their propellers to break up coral in order to harvest giant clams, which was seriously destructive of the coral reef ecosystem (at paras 950–66). The tribunal also found that claimed historic fisheries rights in an area that becomes part of the EEZ do not survive as such rights are incompatible with the legal regime of the EEZ (at paras 243–62). On the other hand, it found that fishers from one State may have traditional fishing rights in the territorial sea of another State, the legal basis for such rights stemming ‘from the notion of vested rights and the understanding that, having pursued a livelihood through artisanal fishing over an extended period, generations of fishermen have acquired a right, akin to property, in the ability to continue to fish in the manner of their forebears’ (at para 798). Such rights were not the historic rights of States, but private rights. As it had announced beforehand that it would do, China rejected the tribunal’s findings immediately following delivery of the award.
16 The most extensive consideration of the fisheries provisions of UNCLOS to date has come not in a contentious case, but in an advisory opinion of the ITLOS. In 2013, concerned by the high levels of illegal fishing in its Member States’ EEZs, the Sub-Regional Fisheries Commission (‘SRFC’), an organization of seven West African States (Fisheries, Commissions and Organizations), requested an advisory opinion from the ITLOS on the following questions: the obligations and liability of flag States where their vessels engage in illegal, unreported and unregulated (‘IUU’) fishing within the EEZs of other States; whether, where an international organization has concluded an agreement for the vessels of its Member States to fish in the EEZ of a third State, the organization or the relevant flag Member State is liable for IUU fishing by such vessels (a question that was understood as referring only to the EU); and the rights and obligations of coastal States in ensuring the sustainable management of shared stocks and stocks of common interest.
17 In theory one or more individual members of the SRFC could have instituted contentious proceedings against a flag State or the EU. That would have involved having to prove illegal fishing and that such illegal fishing by non-State actors engaged the international responsibility of the flag State or EU. Asking for an advisory opinion was more straightforward and could produce a more wide-ranging consideration of the law. However, it was a strategy not without risk, as the only explicit competence that the ITLOS has under UNCLOS to give advisory opinions is limited to opinions requested by the Assembly and Council of the International Seabed Authority (Art 191 UNCLOS). During the proceedings, several third States (including China, France, the United Kingdom, and the US) had strongly argued that that was the limit of the competence of the ITLOS to give advisory opinions. However, in Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission, 2015, the ITLOS disagreed. It found that it had jurisdiction to give advisory opinions deriving from Article 21 of Annex VI UNCLOS, which provides that
‘[t]he jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal’ [emphasis added].
The ITLOS considered that the phrase ‘all matters’ ‘should not be interpreted as covering only “disputes” … [but] must mean something more … That something more must include advisory opinions, if specifically provided for in “any other agreement which confers jurisdiction on the tribunal”’ (Advisory Opinion, para 56). The approach of the ITLOS to the interpretation of what is undoubtedly an unclear or ambiguous phrase was quite limited. In particular, the ITLOS made no reference to the travaux préparatoires or the different authentic language versions of UNCLOS other than the English text and a partial reference to the French text. Be that as it may, the ITLOS noted that Article 21 did not of itself establish the advisory jurisdiction of the ITLOS but rather it was the ‘other agreement’ referred to in Article 21 that did so and rendered the ITLOS competent to give an opinion with regard to ‘all matters’ specifically provided for in the ‘other agreement’. In the present case the ‘other agreement’ was the Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission, 2012, Article 33 of which provides that ‘[t]he Conference of Ministers of the SRFC may authorize the Permanent Secretary of the SRFC to bring a given legal matter before the [ITLOS] for advisory opinion.’ The ITLOS then went on to give detailed answers to the questions that it had been asked. It is not clear as to what practical application, if any, the SRFC has put the answers that it received.
18 Even after the entry into force of UNCLOS, it is possible for a dispute to be referred to settlement other than in accordance with Part XV if the parties to the dispute so wish (Arts 280–82 UNCLOS). They will have to do so if one of them is not a party to UNCLOS or if the dispute concerns matters additional to the interpretation or application of UNCLOS. There have been two such adjudications involving fisheries. The first was the Fisheries Jurisdiction Case (Spain v Canada), 1998. At the time of the dispute, neither Spain nor Canada was party to UNCLOS. The ICJ found that it lacked jurisdiction to consider Spain’s claim that Canada’s arrest on the high seas of one of its vessels fishing for a straddling stock, also found in Canadian waters, was contrary to international law. That was because the dispute was covered by one of Canada’s reservations to the optional clause on which Spain sought to found the Court’s jurisdiction (at paras 62–84 and 87). The second case was the Eritrea/Yemen Arbitration, 1998–1999. In the first phase of the arbitration, concerned with the determination of sovereignty over certain islands, the tribunal ruled that the traditional fishing regime of the region should be perpetuated so as to include free access and enjoyment for fishers from both States to the waters around those islands whose sovereignty the tribunal had determined (Eritrea/Yemen Arbitration Phase I, 1998, paras 525–26). In the second phase, concerned primarily with delimitation of the maritime boundary, the tribunal spelt out in more detail the substance of that regime (Eritrea/Yemen Arbitration Phase II, 1999, paras 87–112).
D. Prompt Release of Arrested Fishing Vessels
19 Article 73 (2) UNCLOS provides that where a State has arrested a foreign vessel for alleged illegal fishing in its EEZ, it shall promptly release the arrested vessel and its crew upon the posting of a reasonable bond or other financial security. Where that State fails to set a bond or the flag State of the arrested vessel considers that the size of the bond that has been set is unreasonable, Article 292 UNCLOS permits the flag State to seek release of the arrested vessel by applying to an international court or tribunal. That court or tribunal is to determine the bond or other financial security, and once the latter has been posted, the detaining State must promptly release the vessel. The purpose of this novel procedure is to prevent foreign vessels and their crews from being detained for a possibly prolonged period of time while the alleged fisheries offence is being dealt with by the domestic authorities of the detaining State, while at the same time providing surety (in the form of the bond or other security) to cover any penalties that may be imposed by domestic courts (Monte Confurco Case, Seychelles v France, 2000, para 71). In essence the procedure is a form of diplomatic protection, where a State acts on behalf of a ship having its nationality, but differs from traditional diplomatic protection in that there is no obligation previously to have exhausted domestic remedies (Camouco Case, Panama v France, 2000, paras 57–58).
20 To date Article 292 UNCLOS has been invoked on nine occasions, all before the ITLOS. The ‘Chaisiri Reefer’ Case, Panama v Yemen, 2001, was withdrawn before it could be heard; in the Grand Prince Case, Belize v France, 2001 the ITLOS held that it had no jurisdiction as it was not satisfied that the applicant, Belize, was in fact the flag State; and in the Tomimaru Case, Japan v Russia, 2007, the ITLOS held that the application was without object. In the remaining six cases the ITLOS either set a bond where none had been set by the detaining State (the M/V Saiga No (1) Case, St Vincent v Guinea, 1997, and the Juno Trader Case, St Vincent v Guinea-Bissau, 2004); or determined whether the amount, form and nature of the bond that had been set were reasonable, and, if not, substituted that bond with a different (and usually lower) bond of its own (Camouco Case, 2000; Monte Confurco Case, 2000; Volga Case, Russia v Australia, 2002, and Hoshinmaru Case, Japan v Russia, 2007).
E. Adjudication of Fisheries Disputes under the Fish Stocks Agreement, the Compliance Agreement, and RFMOs
21 The Fish Stocks Agreement provides that Part XV of UNCLOS applies, mutatis mutandis, to the settlement of any dispute relating to its interpretation and application (Art 30 (1) Fish Stocks Agreement). The Agreement also extends Part XV to any dispute between States parties to the Agreement relating to the interpretation or application of a sub-regional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks (Straddling and Highly Migratory Fish Stocks) to which they are parties (Art 30 (2) Fish Stocks Agreement). This remarkable provision at one stroke makes the dispute settlement machinery of UNCLOS applicable to some 20 fisheries treaties (Churchill, 2007, 394–400). Third, Article 29 Fish Stocks Agreement provides that States parties may refer disputes of a ‘technical nature’ to an ‘ad hoc expert panel’ which is to ‘resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes’. To date no disputes have been referred for settlement under any of these procedures.
22 The Compliance Agreement provides that any dispute relating to its interpretation or application that cannot be settled by means agreed by the parties to the dispute may be referred, with the consent of both/all the parties, to the ICJ, the ITLOS or arbitration (Art IX Fish Stocks Agreement). If such consent is not forthcoming, the parties to the dispute shall ‘continue to consult and co-operate with a view to reaching settlement of the dispute’ (Art IX (3) Fish Stocks Agreement). Again, these procedures have yet to be used.
23 A number of the constituent treaties of RFMOs provide for disputes relating to their interpretation or application to be settled according to Part XV of UNCLOS. In addition, they have adopted less formal mechanisms to resolve disputes relating to their conservation and management measures. Typically, RFMOs permit their members to object to their measures and so not be bound by them. In order to avoid the use of such objection procedures undermining their management efforts, many RFMOs limit the grounds on which objections may be made and provide for the possibility of review by a panel of the compatibility of an objection with those grounds.
24 The only use that has so far been made of such panels concerns the South Pacific Regional Fisheries Management Organization (‘SPRFMO’). Under Article 17 of its constituent treaty, the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (‘SPRFMO Convention’), objections to management measures may be made only on the grounds that a measure unjustifiably discriminates in form or in fact against the objecting member, or is inconsistent with the provisions of the SPRFMO Convention or other relevant international law as reflected in UNCLOS and the Fish Stocks Agreement. If a member does object, it must adopt alternative measures that are equivalent in effect to the decision to which it has objected. Following an objection, a review panel is to be established, comprising two members appointed by the SPRFMO and the objecting State, respectively, and a chair chosen by the two appointed members (Annex II SPRFMO Convention, which sets out the panel procedure). This procedure has been used twice to date. The first occasion was in 2013, when Russia objected to the SPRFMO’s decision not to allocate it a quota for jack mackerel on the ground that the decision discriminated against it and was inconsistent with the SPRFMO Convention. A panel was duly constituted, received written submissions, and held hearings. It found that Russia had been unjustifiably discriminated against but that the SPRFMO measure was not inconsistent with the SPRFMO Convention or other relevant international law. It also found that the alternative measure adopted by Russia was not equivalent in effect to the SPRFMO’s measure, and recommended an alternative measure. In that situation the SPRFMO Convention provides that the objecting member shall adopt the panel’s recommended measure or institute dispute settlement proceedings under the Convention. If it adopts the recommended measure, that measure shall be deemed to be binding on it. Russia did not institute dispute settlement proceedings, and so the panel’s recommendation became binding (Serdy, 2016). By giving the recommendations of the review panel binding force in this way, the SPRFMO Convention makes proceedings of a review panel much closer to arbitration than the conciliation process that they initially appear. The second use of the SPRFMO review panel procedure was in 2018, when Ecuador objected to the quota for jack mackerel allocated to it by the SPRFMO on the ground that the measure discriminated against it and was inconsistent with the SPRFMO Convention and other international law. The panel disagreed. It also found the alternative measure adopted by Ecuador was not equivalent in effect to the SPRFMO’s measure.
F. Maritime Boundary Delimitation
25 In a number of the instances where States have been in dispute over the course of the boundary between their overlapping maritime zones, fisheries issues have been at the heart of the dispute. Where these kinds of dispute have been referred to adjudication, fisheries have to some extent influenced the course of the boundary determined by the adjudicatory body concerned depending on whether the adjudicatory body is concerned with a territorial sea boundary, a single maritime boundary or a fishing zone boundary (Fishery Zones and Limits).
26 The one case where fisheries have been at issue in an adjudicated delimitation of a territorial sea boundary is Maritime Boundary Dispute, Norway v Sweden, 1909. The need for a boundary was made pressing because of clashes between Norwegian and Swedish vessels fishing for lobster. The territorial sea boundary was delimited by the arbitral tribunal in such a way as to avoid cutting across important fishing banks, a decision supported by the fact that the bank on the Swedish side of the line had been fished much more heavily by Swedish than Norwegian fishers.
27 After the Norway v Sweden Case, all adjudicated boundaries up to the mid-1980s involved a continental shelf boundary, where fisheries were by definition not an issue. Since then nearly all maritime boundaries have concerned a single maritime boundary, where a court or tribunal is asked to delimit a single boundary for both the seabed and the superjacent water column. In the first such case, Delimitation of the Maritime Boundary in the Gulf of Maine Area, Canada/US, 1984, fisheries were a significant part of the boundary dispute because both Canada and the US were concerned as to what extent their fishing vessels would have access to the formerly high seas area of Georges Bank, one of the richest fishing grounds in the world, following the extension of their fishing limits to 200 nm in the late 1970s. The ICJ decided that in drawing a single maritime boundary, it would take into account only factors that were neutral as between the seabed and water column, which meant primarily geographical factors (at para 194). Only if the boundary resulting from that methodology turned out to be radically inequitable, in other words would entail catastrophic repercussions for the livelihood and economic well-being of fishers and others affected, should the initial boundary line be modified (at para 237). However, that was not the case here. The approach of the ICJ in the Gulf of Maine Case was followed in Delimitation of Maritime Areas, Canada/France, 1992, paras 83–85, where fisheries were also a significant element of the dispute.
28 Since the turn of the century, international courts and tribunals have departed from the methodology of the Gulf of Maine case and adopted the equidistance/relevant circumstances method of delimitation when delimiting a single maritime boundary. As articulated in Maritime Delimitation in the Black Sea, Romania v Ukraine, 2009, this involves a three-step process. First, a court constructs an equidistance line as the provisional boundary. Second, it considers whether there are relevant circumstances (which are primarily geographical in nature) that might call for an adjustment of the equidistance line in order to achieve an equitable result. At the third stage a court applies a ‘proportionality test’ to assess whether the effect of the equidistance line, as possibly adjusted by relevant circumstances, is such that the ratio of the parties’ respective shares of the relevant area resulting from the first two stages of the delimitation is markedly disproportionate to the ratio of the lengths of their relevant coasts. If so, a further adjustment will be made (paras 115–22). Courts and tribunals have consistently rejected arguments that fisheries can be a relevant circumstance: see, for example, the Barbados/Trinidad and Tobago Case, para 269, the Black Sea Case, para 198, and the Bay of Bengal Maritime Boundary Arbitration (Bangladesh and India), 2014, paras 422–24. Thus, even if fisheries are a significant element in a maritime boundary dispute, they are most unlikely to influence the course of the boundary line where a court or tribunal is delimiting a single maritime boundary.
29 The one maritime boundary case since the mid-1980s where an international court or tribunal has not been asked to delimit a single maritime boundary was the Maritime Delimitation between Greenland and Jan Mayen Case (Denmark v Norway), 1993, where the ICJ was asked to delimit separate boundaries for the continental shelf and the 200 nm fishing zones of Greenland and the Norwegian island of Jan Mayen. In delimiting the fishing zone boundary, the ICJ took fisheries into account as a relevant circumstance (at paras 75–76), and drew the boundary in such a way as to give fishing vessels from both parties ‘equitable access to the capelin stock’ (at para 922), the main fishery resource in the area.
G. Trade Measures to Promote Fisheries Conservation
30 Since at least the 1990s, it has become quite common for RFMOs and individual States to adopt trade measures (such as import bans) against States that do not comply with fishery conservation measures. Individual States have also adopted trade measures to promote the conservation of marine species other than fish whose populations are adversely affected by certain kinds of fishing practice. Some of these different types of trade measure have been challenged for their compatibility with international trade law, the majority under the Dispute Settlement Understanding (‘DSU’) of the WTO (World Trade Organization, Dispute Settlement).
31 Most of the cases concerned import bans that were clearly contrary to the General Agreement on Tariffs and Trade (‘GATT’; General Agreement on Tariffs and Trade (1947 and 1994)). The cases then turned on whether such bans could be justified under Article XX GATT, which permits otherwise GATT-inconsistent measures if necessary to protect certain societal interests, including measures ‘necessary to protect human, animal or plant life or health’ (Art XX (b) GATT) and measures ‘relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption’ (Art XX (g) GATT). In addition, measures must satisfy the requirements of Article XX’s so-called ‘chapeau’, namely that they are not applied in a manner that would constitute arbitrary or unjustifiable discrimination or a disguised restriction on international trade. WTO members’ implementation of RFMO conservation measures have not to date been challenged under the DSU, and there is a widespread view in the literature that such measures are justifiable under Article XX GATT (see, for example, Calley, 2012, 219; Tarasofsky, 2003, 18–29; and Young, 2011, 77). Purely unilateral WTO member measures, on the other hand, have been challenged as being unjustified under Article XX.
32 The first such case was the US–Shrimp Case, in which a number of Asian States challenged a US ban on the import of shrimps caught with gear that had not been fitted with a turtle excluder device. The ban was motivated by US concern over the high level of turtle by-catch in some shrimp fisheries. The Appellate Body (‘AB’) (Appellate Body: Dispute settlement of the World Trade Organization (WTO)) found that the ban was a breach of Article XI GATT, that it was provisionally justified under Article XX (g) GATT, but that it did not meet the requirements of the chapeau as it constituted arbitrary and unjustifiable discrimination. In part, that was because the US had failed to engage in negotiations with the complainants to address a problem that could only be sufficiently addressed through multilateral cooperation. Following the AB’s ruling, the US amended its legislation. In US—Shrimp (Article 21.5—Malaysia), Malaysia challenged that amendment, arguing that it failed to implement the AB’s ruling correctly. The AB rejected that challenge. The US measure no longer amounted to arbitrary or unjustifiable discrimination because the same standard (the use of a turtle excluder device) was no longer required: instead exporting States were required to have a programme of comparable effectiveness. Furthermore, the US had engaged in negotiations with Indian and Pacific Ocean States (including the original complainants) and had concluded a Memorandum of Understanding on turtle conservation.
33 In US—Tuna II (Mexico), begun in 2008, Mexico challenged the compatibility with WTO law of US legislation under which tuna products could only be sold in the US with the label ‘dolphin-safe’ if the tuna had been caught by methods that minimized the by-catch of dolphins. The AB found that the legislation breached Art 2.1 Agreement on Technical Barriers to Trade (‘TBT Agreement’) because it was not even-handed in the manner in which it addressed the risks to dolphins from tuna fishing. The US then amended its legislation, but Mexico brought further proceedings, arguing that the amendments did not comply with the AB’s ruling and that the US labelling scheme was still contrary to the TBT Agreement. In US—Tuna II (Mexico) (Article 21.5—Mexico), the AB found that the US scheme continued to violate the TBT Agreement. It was also contrary to Articles I.1 and III.4 GATT and was not saved by Article XX GATT because it did not fulfil the requirements of the chapeau. Following that ruling, the US made yet further amendments to its tuna labelling scheme. In US—Tuna II (Mexico) (Article 21.5—Mexico II) Mexico challenged those amendments for non-compliance with the AB’s ruling. However, in 2017 a panel rejected that challenge. Mexico appealed the panel’s finding, which was still outstanding as at August 2018.
34 Two disputes referred to adjudication under the DSU were settled by agreement between the parties without a WTO panel ruling. The first was Chile—Swordfish, where the EU challenged a ban by Chile on the landing of swordfish by EU vessels in its ports that had been imposed in response to the alleged failure of the EU to comply with its conservation obligations under UNCLOS. As seen in para 12 above, Chile challenged that alleged failure before the ITLOS. The other case was European Union—Atlanto-Scandian Herring, where Denmark (on behalf of the Faroe Islands) challenged a ban imposed by the EU on imports of herring from the Faroe Islands, arising out of the same dispute as that under UNCLOS (see para 12 above). As proceedings before both the WTO and UNCLOS bodies were settled without a ruling, the question of the relationship between the two fora was not at issue. Should a scenario like that in those two cases occur again but result in rulings on the merits, it seems unlikely that there would be any risk of conflicting decisions being given since the WTO judicial body would be concerned with judging conduct as against a quite separate treaty, raising different issues, from that of the UNCLOS body. Nevertheless, it would be somewhat awkward if, for example, the same action were found to be justifiable on conservation grounds under Article XX GATT but contrary to the conservation obligations of UNCLOS, or vice versa.
35 Before the WTO was established, there were two disputes concerning conservation measures that were brought under the dispute settlement procedures of the 1947 GATT, In Tuna/Dolphin I (1991) Mexico challenged a US ban on imports of tuna that had been imposed because Mexico did not have in place a regulatory regime for avoiding by-catch of dolphins in tuna fisheries that was comparable in effectiveness to the US regime. The panel found that the import ban was a breach of Article XI GATT and could not be justified under Article XX GATT because, in seeking to change the policies of other States, the ban failed to satisfy the tests of necessity and relatedness. Three years later, in Tuna/Dolphin II (1994), another panel reached the same conclusion in relation to a US ban on imports of processed tuna where the raw material came from fisheries that failed to meet the US regulatory standard on dolphin by-catch. Neither panel report was adopted.
36 In addition, there have been fisheries disputes litigated under other trade agreements. One example is the Canada/US Free Trade Agreement, under which a number of fisheries disputes were litigated while the Agreement was in force (see McDorman, 1999, 515–57). A second example concerns the Agreement on the European Economic Area, which the EFTA Surveillance Authority found in 2017 had not been breached by a prohibition by Norway on the catching of snow crab in its waters.
H. Fisheries Disputes before the Court of Justice of the European Union
37 The EU has had a common fisheries policy since 1983. Before its adoption, and following the extension of Member States’ fishing limits to 200 nm in 1977, there were a number of fisheries disputes referred to the European Court of Justice (‘ECJ’), mainly concerning the competence of individual Member States to adopt fisheries management measures, including a rare inter-State case, France v United Kingdom, Judgment, 1979. Since the adoption of the common fisheries policy, dozens of fisheries disputes have been heard by the ECJ. Some are of a quasi-international nature, such as those between EU institutions over the limits of their respective competences (eg Commission v Council, Judgment, 1996, concerning the competence to negotiate fisheries treaties with third States); by a Member State against an EU institution, challenging the validity of an adopted measure (eg Spain v Council, Judgment, 1992, concerning the size of a fishery quota allocated to Spain); or by the Commission against a Member State for non-compliance with the EU fisheries law (eg Commission v French Republic, Judgment, 2005 concerning the failure of France to comply with a judgment of the ECJ finding it in breach of various EU conservation measures). The remaining cases largely comprise actions brought by individual fishing concerns against the Commission (eg for rejecting applications for EU funding) or are requests from national courts for a preliminary ruling on the meaning or validity of EU fisheries law.
CHM Waldock, ‘The Anglo-Norwegian Fisheries Case’ (1951) 28 BYBIL 114–71.
WT Burke, ‘Coastal State Fishery Regulation under International Law: A Comment on the La Bretagne Award of July 17, 1986 (The Arbitration between Canada and France)’ (1988) 25 SanDiegoLRev 495–533.
TL McDorman, ‘Fisheries Conservation and Management and International Trade Law’ in E Hey (ed), Developments in International Fisheries Law (Kluwer Law International The Hague 1999) 501–31.
AE Boyle, ‘The Southern Bluefin Tuna Arbitration’ (2001) 50 ICLQ 447–52.
RG Tarasofsky, Regional Fisheries Organizations and the World Trade Organization: Compatibility or Conflict? (TRAFFIC International Cambridge 2003).
B Mansfield, ‘Compulsory Dispute Settlement after the Southern Bluefin Tuna Award’ in AG Oude Elferink and DR Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Martinus Nijhoff Leiden 2004) 255–72.
R Churchill, ‘The Jurisprudence of the International Tribunal for the Law of the Sea relating to Fisheries: Is there much in the Net?’ (2007) 22 IJMCL 383–424.
JG Merrills, International Dispute Settlement (5th edn CUP Cambridge 2011).
MA Young, Trading Fish, Saving Fish (CUP Cambridge 2011).
DS Calley, Market Denial and International Fisheries Regulation (Martinus Nijhoff Leiden 2012).
A Serdy, ‘Implementing Article 28 of the UN Fish Stocks Agreement: The first Review of a Conservation Measure in the South Pacific Regional Fisheries Management Organization’ (2016) 47 OceanDev&IntlL 1–28.
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3.
Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission (adopted 8 June 2012, date of entry into force unknown).
Decision of 4 October 2017 closing a Complaint against the Norwegian Government concerning Restrictions on Commercial Fishing or Catching of Snow Crab, EFTA Surveillance Authority, Case No 79718, Decision No 173/17/COL.
Findings and Recommendations of the Review Panel established under Article 17 and Annex II of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean with regard to the Objection by the Russian Federation to a Decision of the Commission of the South Pacific Regional Fisheries Management Organisation, PCA, 5 July 2013, <https://pcacases.com/web/sendAttach/2082> (accessed 12 October 2018).
Findings and Recommendations of the Review Panel established under Article 17 and Annex II of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean with regard to the Objection by the Republic of Ecuador to a Decision of the Commission of the South Pacific Regional Fisheries Management Organisation (CMM 01-2018), PCA Case No 2018-13, 5 June 2018.
United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia, Appellate Body Report, WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481.
United States—Measures concerning the Importation, Marketing and Sale of Tuna and Tuna Products—Recourse to Article 21.5 of the DSU by Mexico, Appellate Body Report, WT/DS381/AB/RW, adopted 3 December 2015.
United States—Measures concerning the Importation, Marketing and Sale of Tuna and Tuna Products—Second Recourse to Article 21.5 of the DSU by Mexico, Panel Report, WT/DS381/RW2, circulated to WTO members 26 October 2017.