Gill/ Jurisdictional Battle Over Ocean Mammals & Fisheries

JURISDICTIONAL BATTLE OVER OCEAN MAMMALS & FISHERIES Kulwinder Singh Gill*

ABSTRACT

The jurisdictional problem of ocean mammals and fisheries is very grave and that needs to be resolved for the protection marine environment and fisheries in high seas. The present paper deals with the problem of jurisdiction over ocean mammals and fisheries and its regulation and protection of marine environment. But the said paper is confined to the Geneva Convention on high seas 1958 that how these conventions are regulating the fisheries in high seas and marine mammals and its protection and the present state of regulating instruments. The author tries to resolve the conundrum exploring historical background of freedom of fisheries in high seas and then proceeds to Geneva conventions on high seas 1958 and elaborated with case laws decided by the international court of justice and other international tribunals.

1. INTRODUCTION “Knowledge of the Oceans is more than a matter of curiosity our very survival may hinge on it.” - John F. Kennedy Law making is an intricate political activity. But at international fora the law is shaped and reshaped by the government of states. These governments are influenced by their domestic, transnational and international issues. The emergence of new law is result of intricate influences and forces. Concept of free seas is more or less result of political underpinnings. The 70 percent of Earth’s surface is covered by the oceans which are major but having legal importance of the ecosystem. The problem of conservation and management of the marine living resources is becoming more complex issue day by day because the exploitation is accelerating due to technological changes the problem is more severe where the marine living

*

LL.M in International and Comparative Law from The West Bengal National University of Juridical Sciences, Kolkata, India.

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resources having no commercial value.1The concept of the freedom of the seas is traceable from the times immemorial especially rooted when men started trade and commerce through the seas as means of navigation. The freedom of the sea means that any state can use the seas as per it’s national and international interests, but subject to the condition that without harming the rights of the other nationals. It was advocated that seas should be free but for the last 4 centuries there is great development in the field at international fora. Initially it was started by the individual state practice but recently it started come into form of formal legislation like multilateral conventions and conferences which changed the basic concept and many problems started in way of implementing but the major problem was the determination of jurisdiction of the states. Although in the modern times many international instruments have been come into existence which are determining the jurisdiction in the seas and dealing with the other issues regarding the seas and oceans.2 The Marine revolution is not a product of one day or night but the development was started before the World War I. The overfishing was a problem that time as well but there was no effective law to curb the problem although the oil drilling was in its infancy stage.3 But the steps were taken to regulate the seas so that the rights of the states can be protected and the first step was taken in 1958 when the United Nations Convention on the Law of the Sea was concluded and other its four conventions left wider gap which paved way for the states to choose any convention and claims were raised regarding national jurisdiction, extinction of fisheries marine pollution were major issues to be resolved.4 The contemporary international law of the sea is changing and many new issues are coming into being like marine pollution, loss of biodiversity and protection of endangered species and marine mammals in oceans. The global production has been increased by 3.2 with annual growth rate for the last five decades, the second highest ever global production was 93.7 million in 2011 and in 2012 it was 86.6 million tonnes whereas global production in marine waters was 82.6 million tonnes and 79.9 million tonnes in 2012. 5 Catch of tuna and other like species was more than 7 1

O.P. Shrama, “The International Law of the Sea: India and United Nations Conference of 1982, Oxford University Press (2009) P. 1. 2 Patricia Birnie and Alan Boyle, “International Law and the Environment”, Oxford University Press. 3 Jon M. Van Dyke, Durwood Zaelke, Grant Hewison, “Freedom of the Seas in the 21st Century: Ocean Governance and Environmental Harmony”, Island Press (1993) pp.1-22 4 Ibdi 5 Food and Agriculture Organisation Report 2014, “The State of World Fisheries and Aquaculture: Opportunities and Challenges”. Available at: http://www.fao.org/3/ai3720e.pdf.

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million tonnes in 2012, shrimp species was 3.4 million tonnes and Cephalopods was more than 4 million tonnes.6 The freedom of fish in the high seas gave space to overexploitation of open access resources. The freedom of fish originated through two ways one by custom and secondly by formal conventions on the law of the seas which have been discussed into following parts of the chapter.

2. EVOLUTION OF HIGH SEAS FREEDOM OF FISHING It is presumed that the law of the seas is the result of Western or European Christian civilisation or having influence on its origin. In the ancient times, maritime piracy was major problem and whole of the commercial activities were taking place through the sea and seas played vital role in the economically and politically autonomous modern world. 7 To know the history of evolution of the freedom of the high seas can be traced back to thousand years back when the sea was the main source of traverse and performing trade and commerce with other nations. Some of the early city states succeeded in preventing the maritime piracy viz. Crete, Greece, Rhode etc. because the commercial flourishing was mainly dependent on the seas. The king of Crete, Minos established his navy for the clearing of the pirates and overpowered the Hellenic Sea.8 Apart from that the Greek and Roman laws played very significant role in the development of the maritime law. The Greece dominated the Mediterranean Sea and enough evidence is available that they made efforts to control the maritime sea. They said that the acquisition of the property in the seas was permitted even beyond the territorial sea. Some scholars believe on the basis evidence in hand that the jurisdiction over the maritime area was regulated by the law of Rhode and in later part of the Greek empire they had chief naval power of the Aegean Sea. This law become the basis of the roman law of maritime affairs. 9 Romans said that the navigation in the seas is open to everyone and they made the principle of the freedom of the high seas as fundamental of their public policy. But it was not actually the rule of international law because there was no state that was going to challenge the same but they did not exercised jurisdiction over the Mediterranean Sea. As per the analysis both Greeks and Roman dominated on factual basis but there was no legal proof

6

Ibid O.P. Shrama Supra note at 1 8 Rachel Baird, “Political and commercial interests as influences in the development of the doctrine of the freedom of the high seas” 12 Queensland U. Tech. L. J. 274 (1996) pp. 274291. 9 Ibid 7

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to regulate the same.10 Fisheries were not only the part of their food process in the Mediterranean Sea but also big sources of their income as well. If we look at the written legal sources relating to the freedom of the high seas can be traced back to the writings of the Roman Jurist Marcianus. He affirmed that the sea and fish in it were Communis omnium natuarli iure means the sea and its sources are common to all or have right over the same by the act of natural law. The first law dealing with the matter was the Justinian code in the 6th century which fundamentally maintained the work of the jurist Marcianus and which become the basis of the legal theory determining the legal status of the sea and its use and product of the same.11 This gave the concept of the res communis the legal status was considered as ‘common property’. There is slight difference among the Roman and Greece regulating the maritime law because the Greeks did never try to explore the legal importance but Roman tried and explored the same.12 In the Middle Ages when the Roman Empire collapsed prompted fight for the control over seas and land, especially, during the 13th century onwards various states were claiming sovereignty over the seas to protect their trade and commerce. But these claims also gave rise to some responsibilities that to make policies and protect vessels from the threat of piracy and prosper in the trade and commerce. This also gave birth to thought of coastal state jurisdiction and was initially unchallenged. 13 Venice became the central point for trade and commerce with 3000 ships buoyant and claimed sovereignty over the Adriatic Sea and other states in the 1700s following the Venice claimed the sovereignty over some parts of the sea.14 Till the 1493 there was no claim of sovereignty but in the 15th century the Spain and Portugal were supported by the Pope Alexander VI and helping to fashion new world between two. He mediated between them to resolve the claims and line of demarcation was drawn which was dividing east and west between the two states in 1494 and the agreement was in confirmation with the Treaty of Tordsillas which impliedly stating that they own neighbouring sea.15 The England’s situation was quite different from the above discussed and changing during the Elizabeth I ordered that the sea and air are common to all and contesting the claims for Portugal and Spain it was affirmed that the Drake and others explorers authorized to sail in the sea. The concept of

10

Percy Thomas Fenn, Jr. “Justinian and the freedom of the seas” American Journal of International Law. Vol. 19 No. 4(Oct 1925). Pp. 716-727. 11 Ibid 12 Rachel Baird Supra note at 8 13 Ibid 14 Percy Thomas Fenn Supra note at 10 15 O.P. Shrama supra note at 1

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common to all suggested that the neither the state nor any private man can claim sovereignty over the seas.16 The Dutch were claiming for trade in the East Indies and in 1602 in the straits of Malacca, the Dutch East India Company’s captain subjugated Portuguese galleon claiming jurisdiction over the part of the sea. The court prized the galleon and Hugo Grotius was member of that court and who wrote treaties on the law of prize and he was Dutch lawyer and scholar. His work was published anonymously in 1609 containing chapter mare Liberum. It is the first set of arguments which is supporting the doctrine of the freedom of the seas. The Hugo Grotius contribution immeasurable although 20th century development curtailed the application. 17 the theme of the doctrine was that every nation has right to travel to other nations and at the same time has right to trade with them. It was based on theological conception that ‘some nations excel at one art and others in another’. Grotius supporting his argument Pliny quoted his statement “whatever has been produced anywhere should be seen to have destined for all.”18 Many concepts like Res Communis, Res publica andres Nullies. Grotius said that the seas and air are not subject to sovereignty of any nation and rejected the claim of sovereignty of Portuguese. He said that the sea is vast and cannot be possessed by anyone and everyone has right to use. Supporting his argument, he quoted Placentnus statement “the sea is a thing so clearly common to all that it cannot be property of anyone save God alone.” Talking about perpetuity he cited Ciecro “the common right to all things that nature has produced for the common use of man is to be maintained.” Considering the sovereignty claims he condemned the Papal Bulls Declaration and said that Pope wanted to hand over or give ownership of the one third of the world to two nations only that was not favourable and against the law of the nature. So basically, the Grotius work can be divided into two fundamentals one is limitless of the sea and secondly perpetuity to nature as determined. 19 The Grotius wrote Mare Liberum refuting the Spanish and Portuguese claims but some others nations were not happy with the same work because they wanted to expand their jurisdiction over the seas particularly England. As in 1609 James I prevented or stopped foreigners in the North Sea From fishing. The England aspirations were directly in conflict with treaty of Antwerp 1609 when Dutch got trade rights with the east and refuting the Spanish and Portuguese claims or policy of excluding other nations emphasised on the freedom of the seas.20 In 1618 16

Ibid, also see: Rachel Baird Supra note at 8, Rachel Baird Supra note at 8 18 ibid 19 Ibid 20 Grotius argued that Portuguese cannot claim that they occupied the seas because they were sailing in that part otherwise any person can claim the whole ocean by saying that the 17

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Dutch were exercising their power over the North Sea Fisheries just to offend the England King James I. In response to their behaviour James I said that, “The king is angry and doth not expect to be taught the laws of nations by them or their Grotius.21 There was closed seas policy and James I asked for defence in stance of England then John Seldon a distinguished lawyer was appointed who wrote Mare Clasum in response to Grotius debating the closed sea policy where he argued two policies. Firstly, he stated that sea cannot be said common to all merely on the basis of law of nature or law of nations it can be dominated by private individuals as in the case of land. Secondly, he states that “the king of Great Britain is the lord of the sea as an inseparable and perpetual appendage to the British Empire.”22 So Sheldon was interpreting the theology in different way as he said that God wanted that the seas or oceans also should be divided as the land, the nature of the sea is not preventing to occupy or establish dominion over the same. Grotius never replied to Sheldon Work because it was politically motivated but he responded to the Wellwood’s work because it was direct attack on the Mare Liberum between 1613 – 17. But in 1625 Grotius published his work under title De Jure Balli as Pacis where he said that “seas could be occupied by him who is possession of land in both the sides.” But he recognised for the protection of the offshore. In the first half of the 17th century Dutch defended the doctrine but Potanus, a country researcher said that doctrine of freedom of the high seas is not applicable over coastal areas. Whole world except England condemned the doctrine. But there was time when there was no debate over open and closed sea policy as given by Grotius and Sheldon. Till 1758 the sea resources were considered endless. Great jurist Vattel said that “the use of the open sea, which consists in navigation and fishing is innocent and inexhaustible.” 23 Vattel accepted that a state can be very powerful to prevent the foreign fishermen to enter into its coastline but it is illegal under international law. In the eighteenth century, most of the European states agreed to the application freedom of the seas even England also endorsed with the same. Today the Grotius concept of freedom of seas does not have application in that effect as it has in the previous times and treated negatively. Moreover, it was protecting the right of coastal states to interfere with the foreign vessels he first navigated in the oceans. So, he stated that if a country or state is saying that he occupied some area in seas that is invalid ab initio. Dominion over land cannot be made applicable on oceans. 21 G.WJohnson Memoirs of John Seiden (London: Orr and Smith 1835) , See also Rachel Baird Supra note at 8 22 Rachel Baird Supra note at 8 23 Ibid

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especially during the war times and also distinguished between coastal states and high seas. Finally, the jurisdiction up to 3 mile was accepted universally.24 In the 19th century two new movements were or ideas started to prevail. Firstly, the industrial revolution in the 1800s gave more significant to freedom of the high seas for flourishing the trade with other states. Secondly, British overpowered the seas and were considered ruling the waves and controlled the maritime piracy. The British was gaining supremacy over the seas because many countries were coming under the yoke of colonisation and their naval power was stronger than any other state in the world. The doctrine o the free seas was given touch in Behring Sea Fur Seals Arbitration where some of the states claimed wide area for fishing and their preservation was issue at hand because these fur seals were moving from one jurisdiction to another and giving rise to problems. Laws were promulgated to regulate the high seas fur seals but due to overexploitation these fur seas were in danger. United States apprehended the Canadian vessel claiming that it had right to protect the seals in their jurisdiction. United States was considered the trustee of the herd of the fish which bred in their jurisdiction.25 But on the other hand Canada was looking into the matter that the fish in the high seas is either Res Communis or res nullies not the private property of United States. So, the arbitral tribunal held that the fish in the high seas is not private property and United States had no right to prevent the other nations and cannot seek the help of protection and said that that US can exercise her jurisdiction up to 3 mile.26 The tribunal award has immeasurable contribution in the development of the law of the seas. In the award, no distinction had been made between the fish in the high seas and other marine mammals. Secondly it more focused on the want of protection of the decline pr over exploitation. As the both the parties in the case asked that to recommend against the United States to take steps to preserve and maintain the fisheries. The nine point guidelines have weight in the modern law commission but are not that effective in the technological era. If we look at the enforcement of the award that is more difficult that is robustly favouring the protection from exploitation but the freedom of the high seas also containing some restrictions in the form of maintenance of the fish.27 The doctrine of 3 mile jurisdiction was exerting that time but do not have value in the 20th century because due to technological changes the cannon 24

Ibid Reports of the International Arbitral Awards 15 August 1893 (United States/ United Kingdom) Vol. XXVIII pp. 263-276. 26 Ibid 27 Ibid 25

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can fire shot even beyond the imagination of human being.28 Moreover till the end of the 19th century the major issue was fishing and there was no problem of marine pollution and other marine mammals were not considered because these mammals do not have any commercial value but later in the 20th century due to technological changes major problems were coming and issues were gaining significance at international fora. In the 20the century law of the seas changed tremendously and decolonisation started after the World War I and in the 1920s United States instituted Contiguous Zone. Then the League of Nations was established to maintain peace and trend continued in the 1930s as well. Even, the Hague conference at the Laws of the Sea could not determine the territorial and contiguous limits. The League of Nations failed to achieve its objects and then after the World War II and United States took initiative to widen national jurisdiction and previous prevailing concepts regarding the laws of the seas vanishing.

3. 1958 GENEVA CONVENTION AND JURISDICTION OVER MARINE LIVING RESOURCES The controversy over the fishing rights in the seas was prevailing for the last so many centuries and no solution came out of the conundrum, in the modern times the problems of the regulation of the fisheries and marine mammals accelerated especially over the high seas and over exploitation increased due to developments in the technological changes and a state can prohibit non nationals from fishing in the adjacent areas. The rule of exclusion of foreign vessels is product of the customary international law.29 The freedom of the high seas was challenged for the first time in 1945 by United States from the doctrine of power that has extreme interest to uphold its preservation and it was given by President Harry S. Truman issued proclamation enlarging its national jurisdiction on natural resources on its ‘continental shelf’ but not establishing jurisdiction over the fisheries in continental shelf but preservation of the fisheries in the high seas as well.30 Truman doctrine was criticised at large scale by other states. Argentina declared “Epicontinental Sea” which consists of sovereignty over the continental shelf. From 1946 to 1957 many of the states supported claim by Argentina. Five Latin American states claimed that 200 nautical miles is the

28

Rachel Baird Supra note at 8 William W. Bishop, Jr. “the 1958 Geneva Convention on the fishing and conservation of living resources of the high seas.” Columbia Law Review, Vol. 62 No. 7 (Nov 1962) pp. 1206-1229. 30 Helmut Tuerk, “Reflection on the Contemporary Law of the sea” Martinus Nijhoff Publishers, 2012 p. 9 29

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exclusive limit of fishing.31 The Geneva Convention on the high seas under article 2 provides freedom of the fishing in the high seas which represents it as the rule of customary international law The Geneva Convention failed to achieve the conservation of the marine living resources. But the freedom of fishing is not absolute whenever a state is exercising its rights it will have to keep in mind the interests of the other states and should take all appropriate measures for the protection.32 The 1958 Convention on Fishing and conservation of living Resources of the High Seas is first international instrument which attempted to codify and contributed in the expansion of international fisheries regime. In 1956, the International Law Commission submitted its final draft to the United Nations General Assembly which was covering the most of the aspects to regulate the law of the seas and draft was considered. The conference was attended by the 86 states. While considered the aspects of the convention the international law commission appointed a special rapporteur named Prof. Francois of Netherland submitted his report with conservation of the resources. This convention more focused or documented “special interest” of the coastal states for the conservation of high seas fisheries adjacent to its territorial limits. The convention provides special right to the coastal state that it has right to take unilateral measures for the conservation and protection of fisheries in the high seas in the said area.33 It contains some important provisions which are stated as article 1 to strengthen the rights of the states to fish in the high seas which declares as follows: “1. 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, and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas. 2. All States have the duty to adopt or to cooperate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.”34 Article 1 is not much entertained by the states but Para 2 of the article got the customary international law status. 31

Ibid William T. Burke, “Regulation of driftnet fishing on the high seas and new international law of the sea” 3 Geo. Int'l Envtl. L. Rev. (1990). Pp. 265-310 33 Dolliver Nelson, “International law and Sustainable Development: Past achievements and Future challenges” (Oxford University Press, 1999).pp. 113- 118 34 Article 1 of the 1958 Geneva Convention on Fishing and Conservation of the living resources of the high seas provides, The Term “High Seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State. 32

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The definition of the conservation has been provided in the Article 2 that “the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products. Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption.” Article 3 of the said convention provides that if the nationals of one state are engaged in the fish stocks then it is the responsibility to make regulations to take adequate measures which are necessary for the conservation of marine environment. 35 Whereas in Article 5 of the said convention it is provided that if the nationals of another state is engaged in fishing in the same area then state by agreement make its rules and regulations applicable on the nationals of other state but there should be not discrimination. If parties are unable to conclude agreement within time period of twelve months they may initiate arbitral proceeding for the same.36 Article 6 is providing special interest of costal states in the adjacent areas. But as far as the research and regulation is concerned all states are equally entitled though their nationals are not engaged in fishing in the area. But non costal states do no not have right in conservations regulations which are fishing in the area but they will have to conclude an agreement within 12 months if not possible to submit the matter to arbitration.37 Under article 7 35

Ibid, Article 3 (1) In order to enjoy the freedom of seas on equal terms with coastal states, states having no sea coast should have free access to the sea. To this end, States situated between the sea and a state having no sea coast shall by common agreement with the later, and in conformity with existing international conventions, accord: To the State having no sea coast, on a basis of reciprocity, free transit through their territory; and To ships flying to the flag of that treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports. 2. States situated between the sea and a State having no sea coast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal state or State of transit and the special conditions of the State having no sea coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions. 36 Article 5 (1) Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory; and for the right to fly its flag. Ships have nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the Ship, in particular, the state must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships fly its flag. (2) each State shall issue to ships to which has granted the right to fly its flag documents to that effect. 37 Article 6 1. ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in port of call, save in the case of a real transfer of ownership or change of registry. 2. A ship which sails under the flags of two or more states, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

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the costal state is required to adopt unilateral measures for the maintenance of yield of living resources and their conservation in the high seas in adjacent to territorial sea. Under Paragraph second of article 7 conditions have been given for the application on the other states and shall be valid. If there is any challenge to the adopted measure then those measures will remain in force till the settlement of the dispute. 38 In the end it can be summarised that the convention is containing so many goals to fulfil the objective of preserving the fisheries in the high seas but this convention failed to achieve the conservation of other marine living resources and the convention tried to fulfil the objective of the lectures delivered by Judge Jessup in 1929 although the drafters of the convention did not understand intention of Judge Jessup. The convention has introduced so many rights of the coastal states.39 The 1958 Geneva Convention on fisheries could not get expected success because it failed to strike a balance between interests of the coastal states and others. Sovereignty claims were still persistent on the marine living resources and were not ready to renounce the same. No enforcement mechanism for regulation of foreign vessels made that needs conclusion of special agreement. So, there are many practical implications coming if innovated then there is least possibility of elimination of the same. UNCLOS I and II failed to resolve the problems of jurisdiction and other states were asking for extension of jurisdiction because of multiplicity of reasons.40 1958 Geneva Convention on High Seas was signed at Geneva on 29th April 1958 is dealing with the regulation of high seas and freedom of the same. Article 1 is providing what includes high seas and under Article 2 Four types of freedom has been proving including the freedom of fishing under Part second of the article. Iceland was first state to oppose the twelve nautical miles (six plus six formula) for jurisdiction of the costal state which was not accepted in the UNCLOS I and II and Iceland did not participate in the 1964 European Convention related to the fisheries. Twelve-mile formula as territorial limit aggravated the dispute between the Iceland and UK but it was settled by negotiation.

38

Article 7 of the 1958 Geneva Convention on Fishing and Conservation of the living resources of the high seas. 39 William W. Bishop, Jr., “The 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas”, Columbia Law Review, Vol. 62, No. 7 (Nov. 1962) pp. 1206-1229. 40 Ibid

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In Fisheries Jurisdiction Case, Iceland wanted to exercise jurisdiction extending up to the 50 nautical miles from the baseline of coast but it was not acceptable to UK so she brought the case to the ICJ where it asked the court to consider the matter of exercising the exclusive jurisdiction extending up to 50 miles. Deciding the case the court also touched international obligations concept and held that it is the responsibility of the state to exercise its rights and should take all necessary measures for the conservation of the marine mammals.41 The Rule of law was applied by the court as enshrined under the United Nations Conference on the Law of Sea. There is no written rule for the fishery jurisdiction but it is fixed at 12 Miles and the silence is considered as consent. The International Court of Justice favoured United Kingdom and said that Iceland’s Fisheries extension from 12 to 50 miles not acceptable. Two concepts arose from the second conference of law of seas that was fishery Zone “between the territorial sea and high seas within the Coastal State could claim exclusive fisheries jurisdiction”. The 12 miles has been accepted from the baseline and it is followed by general practice and become rule of law under international law.42 Fisheries Jurisdiction Case (Germany v. Iceland) on 5th June 1972 Federal Government of Germany instituted proceedings against Iceland concerning the matter of extending the jurisdiction from 12 to 50 mile from its baseline around its coast as the matter discussed in The United Kingdom case against Iceland.43 In both the cases the court was asked to decide upon the legality of the extension of the jurisdiction and continuation of right to fish in the area of Germany and United Kingdom and to consider the matter of cooperation with these countries for conserving the marine environment. The court found after surveying that claims of UK and Germany were not lawful and moreover its matter of state practice and the concept of 12 Nautical miles have been recognised by state practice. Both United Kingdom and Germany retained their rights to fish beyond 12 miles in the Iceland on the basis of principle of freedom of the seas. The court held that the rights of the parties are not absolute they required to cooperate with one other and they are directed to take appropriate steps for the fisheries conservation.

41

Fisheries Jurisdiction Case (United Kingdom v. Iceland) ICJ Reports 1974 see also Alona E. Evans, Am. J. Intl’ Vol. 69 No. 1(Jan 1975). 42 Fisheries Jurisdiction Case (United Kingdom v. Iceland) Judgement on 25 July 1974. Available at: http://www.icj-cij.org/docket/files/55/5979.pdf. 43 Fisheries Jurisdiction Case ( Federal Republic of Germany v. Iceland) merits available at: http://www.icj-cij.org/docket/index.php?sum=646&code=bi&p1=3&p2=3&case=56&k=f9 &p3=5.

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Estai Case (Spain v. Canada)44 there was a dispute between the Canada and Spain for fishing in Greenland Halibut in the high seas involving the matter of UN negotiations on the 1995 Fish Stocks Agreement. to implement the same agreement the Canada made the legislation and introduced some changes in their Coastal Fisheries Protection Act which was dealing with the conservation and protection of fish stocks in North Atlantic Fisheries Organisation (NAFO) covering areas beyond its jurisdiction of 200 Nautical miles, Greenland Halibut was particularly coming under the protection where the straddling stocks and protection was required and the Canadian legislation allowed to immediate steps to prevent further destruction of these stocks involving the Grand Banks of Newfoundland for their rebuilding. The Greenland Halibut was in its jurisdiction and took stringent measures. In September 1994, the Canada proposed that NAFO should take measures to protect the Greenland halibut stock. NAFO determined the Total Allowable Catch (TAC) for Greenland Halibut 27,000tonnes for 1995 but the European Union objected for this allocation and proposed its own amount in excess to that TAC. On 9 March 1995, the Spanish Vessel Estai boarded into the high seas and inspected and charged with the offences under Canadian Rules for excessive fishing in the said region.45 The court accepted the reservations made under the option clause encompassing “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in NAFO Regulatory Area”. Canada made new legislation to take preventive measures and for the conservation of straddling stocks beyond EEZ but under UNCLOS it is prohibited provided to the right of hot pursuit. There was no unanimity among the judges some looked into the motive behind the reservation and keep the traditional freedom of fisheries in high seas.

4. CONCLUSION After analysing the above text, it can be concluded that firstly there is conundrum that whether concept owes its origin to western world or European. As far as the evolution is concerned it has long history started from Ancient Greek and then Mare Liberum principle coined which proliferated free trade routes round the world and later it was codified in Geneva conventions in 20th century. The freedom of fishing was part of the law of the sea convention but there was no mention of protection of marine environment but later it was developed as the need felt by the world community. As the freedom of fishing was developed some restrictions were also imposed like conservation and management of the living sea resources in form of restriction. Concept of res commune is evolved and 44 45

Case Concerning Fisheries Jurisdiction (Spain v. Canada) 1998 ICJ Reports Ibid

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high seas considered as common property which also leads to equal right of fishing and equal duties towards protection and management of high seas and its resources. Then in 1950s Geneva Convention on high seas came into picture to regulate the fishing in high seas containing number of duties for protection of fish and other resources but it was not directly focused on protection of marine mammals. International courts and tribunals played very pivotal role to interpret the high seas conventions and elaborated the principles which were ambiguous as well. There were number of lacks in high sea conventions like it failed to protect the equal interests of coastal states and other and also failed to resolve the issue of jurisdiction which were extended time and again but still these conventions are very important in sea regime.

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