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International Practice Regarding Traditional Fishing Privileges of Foreign Fishermen in Zones of Extended Maritime Jurisdiction

Published online by Cambridge University Press:  28 March 2017

David W. Windley
David W. Windley*
Affiliation:
Bureau of Commercial Fisheries
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Extract

In recent years, many nations have made claims of extended maritime jurisdiction or exclusive control for various purposes, and sometimes have claimed sovereignty over areas of sea far beyond the three-mile territorial sea traditionally claimed by many nations. A primary objective of many of these claims has been control over fishing in coastal waters, with the purpose of reserving for the exclusive use of fishermen of the coastal state the fish resources in the waters claimed, or of controlling the activities of foreign fishermen and possibly exacting fees for the privilege of continued fishing. The nature of most claims of authority to regulate the taking of fish in coastal waters is such as to exclude foreign fishermen, such claims having as their basic purpose unconditional right of exclusion. What rights exist for displaced fishermen exist as a matter of comity, i.e., friendship between friendly nations, and as such form no basis for claims of legal right to recompense (although the governments of fishermen who are expelled without a phase-out period may justifiably respond in like unfriendly manner, enacting restrictive tariffs or similar economic handicaps). Several countries have made provision in their own laws for recognition of “traditional” or “historic” fishing for foreign fishermen on a basis of reciprocity, i.e., their fishermen would have similar rights in the exclusive fisheries zone of the foreign nation whose fishermen were permitted to continue fishing. Most such laws have been very recent. The problem is not new, however. Problems of access to the North Atlantic fisheries embroiled the United States and Great Britain immediately after the Revolutionary War, and were not resolved until 1910 by action of the Permanent Court of Arbitration at The Hague. Pelagic sealing inflamed relations between the United States and other nations in the late 19th century, requiring arbitration for settlement.

Type
Research Article
Information
American Journal of International Law , Volume 63 , Issue 3 , July 1969 , pp. 490 - 503
Copyright
Copyright © The American Society of International Law 1969

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References

1 Treaty of Peace, 1783, Art. III. 1 Malloy 586, at 588.

2 Convention Respecting Fisheries, Boundaries, and Restoration of Slaves, 1818, 1 Malloy 631.

3 John Bassett Moore, History and Digest of Arbitrations to Which the United States has been a Party 426-494 (Washington: Government Printing Office, 1898); Commentary (PP- 212-213) in Treaties and Other International Agreements Containing Provisions on Commercial Fisheries, Marine Resources, Sport Fisheries, and Wildlife to which the United States is Party (Washington: Government Printing Office (Senate Commerce Committee), 1965); North Atlantic Fisheries: Proceedings of the North Atlantic Fisheries Arbitration Before the Permanent Court of Arbitration (Washington: Government Printing Office, 1912, 12 volumes) (also cited as Senate Doc. 870, 61st Cong., 3d Sess.) ; Agreement adopting, with certain modifications, the rules and method of procedure recommended in the award of September 7, 1910, of the North Atlantic Coast Fisheries Arbitration, Signed at Washington July 20, 1912; entered into force November 15, 1912 (37 Stat. 1634; Treaty Series, No. 572; I I I Redmond 2632).

4 T.I.A.S., No. 5578; 52 A.J.I.L. 858 (1958).

5 Fishing in United States Territorial Waters and for Continental Shelf Besources by Foreign Flag Vessels; Prohibition (78 Stat. 194); 58 A.J.I.L. 1090 (1964).

6 Act Establishing a Contiguous Fisheries Zone beyond the Territorial Sea of the United States, 1966 (80 Stat. 908); 61 A.J.I.L. 658 (1967).

7 Sec. 1.

8 Art. 2(1).

9 Art. 2(4).

10 Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics Relating to Fishing for King Crab, Feb. 5, 1965, T.I.A.S., No. 5752; 4 Int. Legal Materials 359 (1965).

11 Agreement for Extending the Validity of the Agreement of February 5, 1965, between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics relating to Fishing for King Crab, signed at Washington, Feb. 13, 1967 (with exchange of letters), T.I.A.S., No. 6217.

12 Agreement between the United States of America and the U.S.S.E. Extending and Amending the Agreement of February 5, 1965, as extended, relating to Fishing for King Crab, signed at Washington, Jan. 31, 1969, T.I.A.S., No. 6635.

13 Agreement between the United States of America and Japan relating to Fishing for King Crab, November 25, 1964, T.I.A.S., No. 5688; 4 Int. Legal Materials 157 (1965). “

14 Agreement Amending and Extending the King Crab Agreement of November 25, 1964, between the Government of the United States of America and the Government of Japan, effected by exchange of notes at Washington, November 29, 1966, T.I.A.S., No. 6155.

15 Agreement between the United States of America and Japan Amending and Extending the Agreement of November 25, 1964, as amended and extended, regarding the King Crab Fishery in the Eastern Bering Sea, effected by exchange of notes at Washington, December 23, 1968, T.I.A.S., No. 6601.

16 Arrangement between Japan and the U.S.8.E. on Division of King Crab Fishing Grounds in the Eastern Bering Sea (note verbale). Japan 1967, Fishery Agency, International Fishery Treaty Collection (English) 83. As of January, 1969, no citation was available from Soviet sources.

17 Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Certain Fishery Problems in the Northeastern Part of the Pacific Ocean off the Coast of the United States of America, signed at Washington, February 13, 1967 (with exchange of letters), T.I.A.S., No. 6359.

18 Agreement between the United States of America and the U.S.S.E. Amending and Extending the Agreement of February 13, 1967, as extended, on Certain Fishery Problems in the Northeastern Part of the Pacific Ocean off the Coast of the United States (with exchange of letters), signed at Washington, January 31, 1969, T.I.A.S., No. 6636.

19 Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Certain Fishery Problems on the High Seas in the Western Areas of the Middle Atlantic Ocean, signed at Moscow November 25, 1967, T.I.A.S., No. 6377; 18 U. S. Treaties 2864; 7 Int. Legal Materials 144 (1968).

20 The southern boundary of Subarea 5 of the Convention Area of the International Convention for the Northwest Atlantic Fisheries, T.I.A.S., No. 2089; 6 Int. Legal Materials 760 (1967). Both the U. S. and the U.S.S.R. are parties to this convention.

21 Agreement between the United States of America and the U.S.S.B. on Certain Fishery Problems on the High Seas in the Western Areas of the Middle Atlantic Ocean, signed at Washington December 13, 1968, T.I.A.S., No. 6603.

22 Agreement between the Government of the U n i t e d States of America and t h e Government of Japan relating to Certain Fisheries (except Salmon Fisheries) off United States Coasts, effected by exchange of notes at Tokyo, May 9, 1967; Agreement between the Government of the United States of America and the Government of Japan relating to Salmon Fishing in Waters Contiguous to the United States Territorial Sea, effected by exchange of notes at Tokyo, May 9, 1967, T.I.A.S., No. 6287; 6 Int. Legal Materials 745 (1967).

23 Agreement between the United States of America and Japan amending and extending the Agreement of May 9, 1967, concerning Fisheries (except Salmon Fisheries) off the United States (with agreed minutes), effected by exchange of notes at Washington, December 23, 1968, T.I.A.S., No. 6600.

24 Agreement between the United States of America and the United Mexican States on Traditional Fishing in the Exclusive Fishery Zones Contiguous to the Territorial Seas of both Countries, effected by exchange of notes at Washington, October 27, 1967, T.I.A.S., No. 6359; 18 U. S. Treaties 2724; 7 Int. Legal Materials 312 (1968).

25 T.I.A.S., No. 5969; 52 A.J.I.L. 851 (1958). Both Mexico and the United States are parties.

26 Ley No. 17094 of Dec. 29, 1966; Boletin Oficial, Jan. 10, 1967; 6 Int. Legal Materials 663 (1967).

27 Decreto No. 5106 of Dec. 10, 1966; Boletin Oficial, Jan. 13, 1967.

28 Ley No. 17,500 of Oct. 25, 1967; Boletin Oficial, Oct. 31, 1967; 7 Int. Legal Materials 324 (1968).

29 Decreto No. 8802 of Nov. 24, 1967; Boletin Oficial, Nov. 24, 1967.

30 “Declaration Sobre Zona Maritima,” Aug. 18, 1952, XIV Revista Peruana de Derecho International 104-105 (No. 45, Jan.-June, 1954); translation in LI U. S. Naval War College, International Law Situation and Documents 1956 (1957) 265-267; and Pinal Act of the Second Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific, Lima, Dee. 1-4, 1954, together with Spanish texts of Agreements signed, XIV Revista Peruana de Derecho International 267, 276- 286 (No. 46, July-Dec, 1954). Text of the agreements in English are published in LI U. S. Naval War College, International Law Situation and Documents 1956 (1957) 275-282 (in 4 Whiteman 1090, 1098, accompanied by excellent resume.

31 Ley Sobre la Zona Exclusiva de Pesca de la Naci6n, Diario Oflcial, January 20, 1967. See p. 496 above.

32 Convenio entre el Japon y los Estados Mexicanos sobre Pesca por Embarcaciones Japonesas en las Aguas Contiguas al Mar Territorial Mexicano, Japan, 1968: Ministère des Affaires Etrangères, Collection des Traités, No. 1757, July 1968: 1-12 (Spanish and Japanese texts). As of January, 1969, no citation was available from Mexican sources.

33 Ley No. 31 of Feb. 2, 1967 (unnamed); Gaceta Oflcial, Feb. 14, 1967.

34 Whiteman 1180.

35 ibid. 1154-1178. See Exchange of Notes Settling the Fisheries Dispute between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Iceland, Brit. Treaty Series, No. 17 (1961), Cmnd. 1328; 397 U.N. Treaty Series 275.

36 Final Act of the European Fisheries Conference, London, Dec. 3, 1963, to March 2, 1964, with Fisheries Convention, Protocol of Provisional Application, and Agreements as to Transitional Rights, in 58 A.J.I.L. 1068-1081 (1964); 4 Whiteman 1038- 1042.

37 Fishery Agreement of November 17, 1960, between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway, Brit. Treaty Series, No. 25 (1961), Cmnd. 1352; 398 U.N. Treaty Series 190-194; 4 Whiteman 1181.

38 Fishery Agreement of September 28, 1964, between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway, 4 Int. Legal Materials 163-164 (1965); 4 Whiteman 1182.

39 Law No. 20/1967 of April 8, 1967.

40 Letter of Oct. 25, 1968, to author from Direcci6n General de Pesca Maritima.

41 Ordinance of June 15, 1927, Sobranii zakonov Rasporiazhenii, No. 62, p. 1220 (Moscow, Nov. 19, 1927). Some authors disagree on the sequence of Soviet actions during this period. This account is from Whiteman. For a detailed study of Russian practice in delimiting the maritime domain, see Butler, “The Legal Regime of Russian Territorial Waters,” 62 A.J.I.L. 51 (1968).

42 Ordinance of Sept. 25, 1935, Sobranii zakonov Rasporiazhenii, No. 50, p. 743 (Moscow, Oct. 5, 1935).

43 I n 4 Whiteman 981; 25 Martens N.E.G. 3d Ser. 143.

44 Fisheries Agreement between the United Kingdom and the Union of Soviet Socialist Republies, and Minute, signed at Moscow May 25, 1956, and Exchange of Notes May 25, 1956, on Territorial Waters. Brit. Treaty Series, No. 36 (1957), Cmnd. 148; 266 U.N. Treaty Series 210-215.

45 4 Whiteman 982.

46 The Territorial Waters Act; Law No. 87 of 1963.

47 Territorial Sea and Fishing Zone Act of 1965; Law No. 11 of September 10, 1965; 5 Int. Legal Materials 1 (1966).

48 Statement by the New Zealand Prime Minister on Japanese Fishing, March 28, 1966.

49 Agreement on Fisheries between New Zealand and Japan (with Belated Documents), Wellington, July 12, 1967; No. A-10; 6 Int. Legal Materials 736 (1967).

50 Fisheries Act 1967 (Law No. 116 of Nov. 17, 1967). This law provides fines, imprisonment and other punishments for foreign fishermen fishing without authorization within 12 miles of the coasts of Australia and various Australian possessions.

51 Agreement on Fisheries between the Commonwealth of Australia and Japan (unpublished pending ratification; copy of signed draft text provided by Eegional Fisheries Attaché, U. S. Embassy, Tokyo, in letter of Jan. 30, 1969).