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The International Policing of High Sea Fisheries

Published online by Cambridge University Press:  09 March 2016

J. E. Carroz  and
A. G. Roche
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Extract

The need to strengthen international co-operation in the rational exploitation of the fishery resources of the high seas is a question which has become of growing importance in recent years. Increased efforts devoted to research and the exploration of the seas are constantly revealing the contribution which these resources may make to the improvement of standards of nutrition, while both states and private enterprise are becoming ever more conscious of the economic potential which these resources represent. At the same time new techniques and equipment are being developed to make the exploitation of fishery resources both easier and more profitable. However, it is generally recognized that fishery resources are not inexhaustible, and in many instances the urgent need for conservation measures has become apparent. In addition, the regulation of the conduct of fishing operations is now necessary in fishing grounds which are intensively exploited.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 6 , 1968 , pp. 61 - 90
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1968

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References

1 The “freedom of fishing” is one of the four freedoms specifically referred to in Art. 2 of the Convention on the High Seas adopted by the United Nations Conference on the Law of the Sea in 1958. However, it should be noted that it is further provided in Art. 2 that these freedoms and “others which are recognized by international law” may not be exercised entirely without restriction, but only with “reasonable regard to the interests of other States in their exercise of the freedom of the high seas.”

2 There are certain essentially customary exceptions to this general principle, for example, those relating to the suppression of piracy and slavery and to hot pursuit.

3 For what appears to be the earliest example of an international control system applied to high sea fisheries, see the Convention concluded between France and the United Kingdom in 1839 and subsequent instruments, referred to in Leonard, L.L., International Regulation of Fisheries 38–42 (Washington, D.C., 1944).Google Scholar

4 See in particular, on the so-called “Liquor Treaties,” Colombos, J.C., International Law of the Sea 141 et seq. (6th rev. ed., London, 1967).Google Scholar

5 Convention for the Protection of Submarine Cables, signed on March 14, 1884, Art. X. II Malloy 1949.

6 See in particular the note by the French delegation in IMCO Doc. LEG/ II/2/Add. 1, November 13, 1967, at 8. At its Third Session in June 1968, the Legal Committee agreed that the problem of surveillance and control would call for study: IMCO Doc. LEG/III/W.P.22, June 14, 1968, at 3.

7 Hereafter referred to as the “Halibut Convention,” 222 U.N.T.S. 77. This Convention, concluded in 1953, supersedes previous agreements relating to this fishery. The parties are Canada and U.S.A.

8 Hereafter referred to as the “Sockeye Salmon Convention,” U.N. Legislative Series, Laws and Regulations on the Régime of the High Seas, Vol. I, at ’95–98. This Convention, concluded in 1930, was supplemented by understandings contained in the Protocol of Exchange of Ratifications signed on July 28, 1937 (ibid., 199–200) and was amended by a Protocol signed on December 28, 1956, 290 U.N.T.S. 103. The parties are Canada and U.S.A.

9 Hereafter referred to as the “Whaling Convention,” T.I.A.S. No. 1849. This Convention, concluded in 1946, was amended by a Protocol in 1956, T.I.A.S. No. 4228. The parties are Argentina, Australia, Canada, Denmark, France, Iceland, Japan, Mexico, Netherlands, New Zealand, Norway, Panama, South Africa, U.S.S.R., United Kingdom and U.S.A.

10 Hereafter referred to as the “North Pacific Fisheries Convention,” 205 U.N.T.S. 65. The parties to this Convention concluded in 1952 are Canada, Japan and U.S.A.

11 Hereafter referred to as the “Japan-U.S.S.R. Treaty for the Northwest Pacific,” English translation in 53 Am. J. Int’l L. 763 (1959). The parties to this Treaty concluded in 1956 are Japan and U.S.S.R.

12 Hereafter referred to as the “Fur Seal Convention,” 314 U.N.T.S. 105. This Convention, concluded in 1957, was amended and extended by a Protocol in 1963, 494 U.N.T.S. 303. The parties are Canada, Japan, U.S.S.R. and U.S.A.

13 Hereafter referred to as the “NEAFC Convention,” 486 U.N.T.S. 157. The parties to this Convention, concluded in 1959, are Belgium, Denmark, France, Germany (Fed. Rep.), Iceland, Ireland, Netherlands, Norway, Poland, Portugal, Spain, Sweden, U.S.S.R. and United Kingdom.

14 Hereafter referred to as the “U.S.A.-U.S.S.R. King Crab Agreement,” T.I.A.S. No. 5752. This Agreement, concluded in 1965, was extended by a further Agreement in 1967, T.I.A.S. No. 6217.

15 Hereafter referred to as the “Atlantic Tuna Convention,” 6 Int’l Legal Materials 293 (1967). As of July 15, 1968 this Convention, adopted in 1966, had not yet entered into force.

16 A Convention for the Conservation of Shrimp in the Eastern Gulf of Mexico, signed on August 15, 1958 by Cuba and U.S.A., also provided for a detailed international control system (T.I.A.S. No. 4321). This Convention entered into force on September 4, 1959, but it would appear that it has not been implemented.

17 Hereafter referred to as the “ICNAF Convention,” 157 U.N.T.S. 157. The parties to this Convention, concluded in 1949, are Canada, Denmark, France, Germany (Fed. Rep.), Iceland, Italy, Norway, Poland, Portugal, Rumania, Spain, U.S.S.R., United Kingdom and U.S.A.

18 As of July 15, 1968. For text, see ICNAF Handbook.

19 See Her Majesty’s Stationery Office, Command Paper No. 1224.

20 Hereafter referred to as the “1967 London Convention.” As of July 15, 1968 this Convention was not yet in force. It was adopted at a Conference held in London in 1967 at which the following states were represented: Belgium, Canada, Denmark, France, Germany (Fed. Rep.), Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Sweden, U.S.S.R., U.S.A., and United Kingdom. See on this Convention, van Lynden, D.W., “The Convention on Conduct of Fishing Operations in the North Atlantic,” London, 1967,Google Scholar in 14 Nederlands Tijdschrift voor Internationaal Recht 245 (1967), and for text of the Convention see ibid., 329. The 1967 London Convention is designed to replace the 1882 Convention for Regulating the Police of the North Sea Fisheries (see English text in Halsbury’s Statutes of England, 2nd ed., vol. 10, at 213).

21 Art. 14, para. 3. States may make reservations to this particular provision, but the Convention also includes a general clause, to which no reservations may be made, laying down that authorized officers may seek information without boarding and inspecting, and report on infringements.

22 For details on the steps which led to amendment of the Convention, see infra 81–82.

23 The 1949 Convention establishing ICNAF did not embody an international control system nor did it provide that ICNAF could submit proposals for international measures of control to its member states. At its Eleventh Annual Meeting held in 1961, the Commission resolved to appoint an ad hoc Committee to study the question of the establishment of an international inspection system and the practical problems involved (ICNAF Annual Proceedings, Vol. 11, 1961, at 19). The following year, the Commission requested its member states to consider the introduction of a joint enforcement system and in particular the possibility of amending the ICNAF Convention so as to enable the Commission to recommend international measures of control on the high seas (ICNAF Annual Proceedings, Vol. 13) ’963, at 17). A draft Protocol to the 1949 Convention was circulated by the Depositary Government to the contracting parties on September 25, 1963. The Protocol was signed in Washington on November 29, 1965. Its entry into force is subject to the deposit of instruments of ratification or adherence by all contracting parties to the 1949 Convention. As of May 3, 1968, the necessary action had been taken by all member states except Denmark, Germany (Fed. Rep.), Italy, Poland and Portugal.

Pending the entry into force of the Protocol relating to measures of control, the Commission keeps an active interest in the matter. For the past several years, it has been promoting the exchange of enforcement officers among member states on a bilateral voluntary basis (see infra 83). It has encouraged its member states which are not members of NE AFC (Canada, Italy, and U.S.A.) to take part in the deliberations of the NEAFC Special Committee on International Control. In fact, both Canada and U.S.A. were represented by observers at the meetings concerned. At its Seventeenth Annual Meeting in June 1967, the Commission agreed that the proposed NEAFC Scheme of Joint Enforcement, despite differences in the NEAFC and ICNAF trawl regulations, could provide a useful basis for an ICNAF scheme. It recommended that the views of its member states with regard to an international inspection scheme based on the NEAFC Scheme should be assembled by the Secretariat and submitted for consideration to the ad hoc Committee on Trawl Regulations (ICNAF Annual Proceedings, Vol 17, 1968, at 21). The Committee met in May 1968 and, after reviewing the observations presented by member states (ICNAF Comm. Doc. 68/17), drew up a draft Scheme of Joint Enforcement which reproduced the NEAFC Scheme with such modifications as were thought necessary to make it compatible with ICNAF regulations (ICNAF Comm. Doc. 68/23 Rev.).

24 On the proposal of the United Kingdom, NEAFC took up the question of international control at its Second Meeting in May 1964. It established a Special Committee, which was requested to study the practical problems involved and to submit suggestions (NEAFC, Report of the Second Meeting, 5). The Commission considered the report of the Special Committee (Doc. NC 3/35) at its Third Meeting in May 1965 and resolved that the Committee should give further consideration to the matter (NEAFC, Report of the Third Meeting, 4–5). At its Fourth Meeting in May 1966, the Commission examined the second report of the Special Committee (Doc. NC 4/43) which included a proposed scheme of joint enforcement. Member states were requested to submit comments on this report and, with a view to settling outstanding questions, NEAFC decided to hold an extraordinary meeting at which those members of ICNAF which were not also members of NEAFC should be invited to attend (NEAFC, Report of the Fourth Meeting, 6–7). The meeting took place in November 1966 and a Draft Scheme of Joint Enforcement was drawn up (NEAFC, Report of the Special Meeting, 17–19). The Commission agreed, however, that further discussions were needed and a second special meeting on international control was held immediately before its Fifth Meeting in May 1967. At the latter meeting, the Commission adopted a recommendation embodying a Scheme of Joint Enforcement and agreed that such Scheme should come into force on January 1, 1969 (NEAFC, Report of the Fifth Meeting and the Second Special Meeting on International Control). As three governments submitted objections to the recommendation, all the other states, pursuant to Art. 8, para. 4, of the NEAFC Convention, were relieved of any obligation to implement it. At its Sixth Meeting in May 1968, the Commission reaffirmed the recommendation adopted at its Fifth Meeting and agreed that it should take effect on January 1, 1970. It was also agreed that, subject to the approval of member states, the provisions of the Scheme relating to inspection of gear below deck and of catch would not be operative as between the U.S.S.R. and other member states; the provisions of the Scheme relating to inspection of gear or catch below deck would not be operative as between Poland and other member states; and the provisions of the Scheme relating to inspection of gear or catch below deck would not be operative as between Sweden and other member states until January 1, 1972 or such earlier date as the government of Sweden may notify the Commission (Doc. NC 6/98).

25 For details regarding the objection procedure and entry into force of recommendations, see NEAFC Convention, Arts. 8, 9 and 10; ICNAF Convention, Art. VIII.

26 See, in particular, Conference Docs. FID:AT/66/PV.7, at 9 et seq and PV.15, at 49 et seq.

27 Art. IX, para. 3.

28 Art. VIII.

29 Art. I, para, 1.

30 Art. I, para. 1.

31 Art. I, para. 1.

32 Para. 2 and Appendix, para. 1.

33 Art. II, para. 1.

34 Art. IX.

35 Art. VI, para, 1.

36 Art. 13, para. 3.

37 See in particular Conference Docs. FID:AT/66/5/PV.7, at 21 et seq.; PV.9, at 29 et seq.; PV.10, at 1 et seq., and PV. 18, at 10 et seq.

38 Art. IX, para. 3, of the Atlantic Tuna Convention.

39 Reference should be made here to the 1964 European Fisheries Convention, which provides that the contracting parties have the exclusive right to fish and exclusive jurisdiction in matters of fisheries within the belt of six miles measured from the baseline of their territorial sea; within the belt between the six and twelve mile limit, the right to fish shall be exercised only by the coastal state and by any other contracting parties the fishing vessels of which have habitually fished in that belt between January 1, 1953 and December 31, 1962. The right granted to the fishing vessels of the other contracting parties is not limited in time, but they may not direct their fishing effort towards stocks of fish or fishing grounds substantially different from those which they have habitually exploited. Furthermore, the coastal state may regulate fisheries within the six to twelve mile belt, provided that there is no discrimination in form or in fact against duly authorized fishing vessels of other contracting parties. For the text of the Convention, see 58 Am. J. Int’l L. 1070 et seq. (1964). It may be added that both Canada, in 1964, and the U.S.A., in 1966, have enacted legislation to provide for a twelve mile fishing zone. For Canada, see Act of July 16, 1964 respecting the Territorial Sea and Fishing Zones of Canada (13 Elizabeth II, c.22) and Regulation of July 17, 1964 on Application of Canadian Territorial Sea and Fishing Zones Act (The Canada Gazette, Part II, Vol. 98, No. 15, at 723). See also, Gotlieb, A.E., “The Canadian Contribution to the Concept of a Fishing Zone in International Law,” 2 Canadian Yearbook of International Law 55 (1964),Google Scholar and Morin, J.-Y., “La zone de pêche exclusive du Canada,” ibid., 77.Google Scholar For U.S.A., see Act of October 14, 1966 to establish a Contiguous Fishery Zone beyond the Territorial Sea of the United States (Public Law 89–658, 89th Congress, S. 2218).

40 Art. 9, para. 1, of the 1967 London Convention.

41 See D.W. van Lynden, op. cit. supra note 20, at 252.

42 Art. 8, para. 2.

43 Art. 8, para. 1.

44 Preamble. See also on this matter NEAFC, Report of the Special Meeting, November 1966, at 2.

45 Art. 13, para. 3.

46 NEAFC, Report of the Third Meeting, May 1965, at 5–6.

47 See 1960 Fishery Agreement between the United Kingdom and Norway; 1965 U.S.A.-U.S.S.R. King Crab Agreement; 1967 London Convention; NEAFC Scheme of Joint Enforcement.

48 Sockeye Salmon Convention; Halibut Convention; North Pacific Fisheries Convention; Japan-U.S.S.R. Treaty for the Northwest Pacific; Fur Seal Convention.

49 Annex I, Art. 20, para. 1.

50 See Art. 1, para. 2 and Annex VI, para. 8. It may be noted that the 1882 Convention for Regulating the Police of the North Sea Fisheries relied essentially on “bâtiments croiseurs” for fisheries policing. However, under the Hague Declaration of June 3, 1955, signed by Belgium, Denmark, France, Germany (Fed. Rep.), the Netherlands and the United Kingdom, police functions over the North Sea fisheries could be exercised increasingly by ships other than warships. See United Nations Doc. A/CN.4/99, para. 12.

51 Annex VI, para. 8. The possibility of using aircraft for inspection purposes was discussed but this idea was discarded.

52 Paragraph 2.

53 NEAFC, Report of the Fifth Meeting and the Second Special Meeting on International Control, 17.

54 Paragraph 2.

55 Art. 9, para. 3.

56 Halibut Convention, Art. II, para. 1 ; Fur Seal Convention, Art. VI, para. 1 ; North Pacific Fisheries Convention, Art. X, para. 1 ; Sockeye Salmon Con-vention, Art. IX; 1967 London Convention, Art. 9, para. 2; Japan-U.S.S.R. Treaty for the Northwest Pacific, Art. VII, para. 1.

57 Annex I, Arts. 20 and 21.

58 Paragraph 1.

59 Paragraph 7.

60 Paragraph 3.

61 Paragraph 1.

62 Art. 9, para. 3.

63 Paragraph 2.

64 Art. I, para. 2.

65 Art. 9 and Annex VI.

66 Two Conventions provide for seizure and detention of offenders in case of an infringement but do not even refer to boarding and inspection, which would presumably be necessary in many cases before determining that the infringement had been committed : Halibut Convention, Art. II, para. 1 ; and the Sockeye Salmon Convention, Art. IX.

67 Paragraph 4.

68 Paragraph 3 provides that “either government shall, if requested by the other Government, provide opportunity for observation of the conduct of enforcement of the provisions of this Agreement and for that purpose shall permit duly authorized officers of the other Government to board its vessels engaged in the king crab fishery in the eastern Bering Sea. . . .” For instances of the application of this provision, see Commercial Fisheries Review, Vol. 28, No. 7, July 1966, at 97.

69 For example, Fur Seal Convention, Art. VI, para. 1 ; Japan-U.S.S.R. Treaty for the Northwest Pacific, Art. VII, para. 1; i960 Fishery Agreement between the United Kingdom and Norway, Annex I, Art. 22.

70 Art. 9, para. 5. Para. 12 of the same Article also provides that an authorized officer may not board a vessel of another contracting party if an authorized officer of that contracting party is available and in a position to do so himself.

71 Art. 9, para. 4.

72 Art. X, para. 1(a).

73 Paragraph 4.

74 Art. 9, para. 7.

75 Paragraph 5 and Art. 9, para. 8, respectively.

76 See supra note 24.

77 Doc. NEAFC NC 6/98, Annex B.

78 As far as Sweden is concerned, this arrangement will be valid until January I, 1972 at the latest. An amendment to Swedish domestic law is needed because it does not at present permit the search of vessels below deck without a warrant (NEAFC, Report of Fifth Meeting and Second Special Meeting on International Control, 18).

79 The arrangement is applicable to the U.S.S.R. with respect to the inspection of catch generally (NEAFC Doc. NC 6/98, Annex B).

80 Paragraph 5.

81 Annex VI, para. 6.

82 Paragraph 5.

83 Halibut Convention, Art. II, para. 1 ; Sockeye Salmon Convention, Art. IX; Japan-U.S.S.R. Treaty for the Northwest Pacific, Art. VII, para, 2; North Pacific Fisheries Convention, Art. X, para. 1(b).

84 Fur Seal Convention, Art. VI, para. 2.

85 This would be logical since otherwise difficulties might arise if the term “belongs” referred to the state of which persons arrested were nationals, because these persons might not be nationals of the flag state and be nationals of a state which was not a party to the convention. It may be noted in this connection that the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas does not refer to vessels and persons but uses throughout the expression “nationals.” Pursuant to Art. 14 of the Convention, the term “nationals” means “fishing boats or craft of any size having the nationality of the state concerned, according to the law of that state, irrespective of the nationality of the members of their crews.” For discussion on this subject, see UN Doc. A/Conf.13/41, U.N. Conference on the Law of the Sea, Official Records, Vol. V: Third Committee, 12, 42, 51.

86 Art. VII, para. 2.

87 Art. II, para, 1 and Art. IX, respectively.

88 Art. VI, para. 2 and Art. X, para. 1 (b), respectively.

89 Art. VII, para. 2, Art. VI, para. 2 and Art. X, para. 1(b), respectively.

90 NEAFC Doc. 1/6/ Revised.

91 Paragraph 8 and Art. 9, para. 11, respectively.

92 Ibid.

93 Seventh Report of the Commission, para. 14, at 5.

94 Eleventh Report of the Commission, para. 14, at 7 and Appendix III, para. 15, at 18–19.

95 For text, see Fifteenth Report of the Commission, Appendix III, at 23-26. For details regarding negotiations prior to the Agreement’s adoption, see the Twelfth, Thirteenth and Fourteenth Reports of the Commission.

96 Eighteenth Report of the Commission, para. 7, at 9.

97 The corresponding amendments to the Schedule to the Whaling Convention have been submitted to member states and will enter into force on October 10, 1968, subject to the objection procedure.

98 Notes on Ninth Annual Meeting of Japanese-Soviet Fishery Commission for the Northwest Pacific, in Commercial Fisheries Review, Vol. 27, No. 6, June 1965, at 44.

99 Notes on Tenth Annual Meeting, in Commercial Fisheries Review, Vol. 28, No. 6, June 1966, at 48.

100 ICNAF, Annual Proceedings, Vol. 14 (1963–64), at 15. The proceedings of the Seventeenth Annual Meeting of the Commission held in June 1967 contain details as to the exchange of national inspection officers up to that date: see p. 21.

101 This problem was referred to in the “Letter of Submittal” of April 19, 1966, from the Department of State to the President of the United States of America relating to the ICNAF Protocol on measures of international control. It was pointed out that eleven of the then thirteen parties to the ICNAF Convention were in Europe and that it was difficult or impossible for some of them to conduct enforcement activities on the fishing grounds of the Northwest Atlantic. See 5 Int Legal Materials 872 (1966).

102 Reports of the International Pacific Halibut Commission, Vol. 13, at 15; Vol. 23, at 18, 42.

103 Ibid., Vol. 45, at 29.

104 Paragraph 9(i).

105 For details of the principal types of conservation measure, see Johnston, D.M., The International Law of Fisheries 59 et seq. (Yale University Press, 1965).Google Scholar

106 As regards NEAFC, see in particular Report of the Special Meeting, November 1966, at 4–5 ; Report of the Fifth Meeting and the Second Special Meeting on International Control, May 1967, at 5, 15 et seq. With respect to ICNAF, see Annual Proceedings for the year 1964–1965, at 24; Annual Proceedings for the year 1965–1966, at 20; Annual Proceedings for the year 1966–1967, at 19–21.