Fisheries Jurisdiction

(Spain v. Canada)

Student Name : Shyami Nilusha Jayawickrama

Student Number : 2019/MAIR/42

Subject : Public International Law

Submission Date : 20th July 2019

Case: Fisheries Jurisdiction (Spain v. Canada)

Background of the Case

On 9 March 1995, the Estai, a fishing vessel flying the Spanish flag and manned by a Spanish
crew, was intercepted and boarded some 245 miles from the Canadian coast, in Division 3L
of the Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area, by Canadian
Government vessels. The vessel was seized and its master arrested on charges of violations of
the Coastal Fisheries Protection Act, in particular illegal fishing for Greenland halibut; part of
the ship’s catch was confiscated. Spain complained about a violation of the international law
in force, since these acts took place outside the 200-mile zone. The Canadian Government
stated that it had taken the said measures on basis of the amended Section 2 of the Coastal
Fisheries Protection Act. (ecolex.org, 1998)

Subject of the Dispute

Neither of the Parties denies that there exists a dispute between them. Each Party, however,
characterizes the dispute differently. Spain has characterized the dispute as one relating to
Canada's lack of entitlement to exercise jurisdiction on the high seas, and the non-
opposability of its amended Coastal Fisheries Protection legislation and regulations to third
States, including Spain. Spain further maintains that Canada, by its conduct, has violated
Spain's rights under international law and that such violation entitles it to reparation. Canada
states that the dispute concerns the adoption of measures for the conservation and
management of fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area
and their enforcement. Spain insists that it is free, as the Applicant in this case, to
characterize the dispute that it wishes the Court to resolve (icj report,1998)
Legal Issues involved in the Case

The Application of Spain alleged the violation of various principles and norms of
international law and stated that there was a dispute between Spain and Canada which, going
beyond the framework of fishing, seriously affected the very principle of the freedom of the
high seas and, moreover, implied a very serious infringement of the sovereign rights of Spain.
As a basis of the Court’s jurisdiction, the Application referred to the declarations of Spain
and of Canada made in accordance with Article 36, paragraph 2, of the Statute of the Court.
As Canada contested the jurisdiction of the Court, on the basis of its aforementioned
declaration, it was decided that the written pleadings should focus initially upon that question
of jurisdiction. (icj-cij.org,1996).

In offering its interpretation of Canada's reservation, the Court considered that the
reservation's purpose was to prevent it from exercising jurisdiction over matters that might
arise with regard to the international legality of the Canadian legislation and its
implementation. Followings are the main legal issues in favour of jurisdiction:

1) The dispute brought by Spain falls outside the terms of the Canadian reservation by
reason of its subject-matter
2) The Canadian legislation cannot, in international law, constitute "conservation and
management measures"
3) The reservation covers only "vessels" that are stateless or flying a flag of convenience
and the pursuit, boarding and seizure of the Spanish ship cannot be regarded in
international law as the enforcement of conservation and management measures.

According to the ICJ Report 1998, First, the Court found that the words "disputes arising out
of or concerning" contained in Canada's reservation exclude not only disputes whose
immediate "subject-matter" is the measures in question and their enforcement, but also those
"concerning" such measures and those having their "origin" in those matters. The Court noted
that it had to determine whether the dispute had as its subject-matter the measures mentioned
in the reservation or their enforcement, or both, or concerned those measures or arose out of
them. In order to do this, it had to determine first the meaning of "conservation and
management measures" and "enforcement of such measures" in the context of the
reservation.
Thus, in reply to Spain's second argument, the Court pointed out that "measure" covers any
act, step or proceeding (including a law and its implementing regulations) and imposes no
limit on the material content or on the aim pursued thereby (in this case, the conservation and
management of fish). In the Court's view, it is generally accepted in international law and the
practice of states that, in order for a measure to be characterized as a "conservation and
management measure," it is sufficient that its purpose is to conserve and manage living
resources (in this case, Greenland halibut) and that, to this end, it satisfies various technical
requirements. Any other interpretation would deprive the reservation of the effect Canada
intended to give to it. Thus, the Court was satisfied that the measures taken by Canada
constituted "conservation and management measures." (icj report,1998)

Third, the Court observed that the Canadian reservation refers to "vessels fishing," all vessels
fishing in the area in question, without exception. In the Court's view, Spain's interpretation,
according to which the reservation applied only to stateless vessels or those flying a flag of
convenience, runs contrary to a clear text expressing Canada's intention. (icj report,1998)

Finally, as regards the meaning and scope of the phrase "and the enforcement of such
measures," the Court found that the provisions of the Canadian legislation authorizing the use
of force fall within the general category familiar in connection with enforcement of fisheries
conservation measures. In the majority's view, boarding, inspection, arrest and minimum use
of force are all contained within the concept of enforcement of conservation and management
measures according to a natural and reasonable interpretation of this concept . (icj
report,1998)
According to what Principles of International Law the International court
of justice tried to adjudicate the matter between parties?

Optional clause

According to the basis of the Court's jurisdiction, the applicant refers to the declarations made
by the two parties accepting the Court's compulsory jurisdiction under Article 36 paragraph 2
of the ICJ Statute. That provision, known as the "Optional Clause," provides that the states
parties to the ICJ Statute (currently all the 185 UN member states and Nauru and
Switzerland) may at any time file with the UN Secretary-General declarations stating that
they recognize as compulsory, without special agreement, in relation to any other state
accepting the same obligation, the Court's jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of an international obligation, or the nature or extent of
the reparation to be made for the breach of an international obligation. (icj report,1998)

Enforcement of conservation and management measures

As regards the meaning and scope of the phrase "and the enforcement of such measures," the
Court found that the provisions of the Canadian legislation authorizing the use of force fall
within the general category familiar in connection with enforcement of fisheries conservation
measures. In the majority's view, boarding, inspection, arrest and minimum use of force are
all contained within the concept of enforcement of conservation and management measures
according to a natural and reasonable interpretation of this concept. (icj report,1998)

After investigation the all the facts Court concluded that the dispute submitted to it by Spain
constitutes a dispute "arising out of" and "concerning" "conservation and management
measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area" and
"the enforcement of such measures." Consequently, the Court concluded that this dispute
comes within the terms of the Canadian reservation and found, by 12 votes to 5, that it lacks
jurisdiction to adjudicate upon the dispute. (icj report,1998)
What is the status of the principles employed by the court in international
law?
In its Judgment of 4 December 1998, the Court found that the dispute between the Parties
was a dispute that had “arisen” out of “conservation and management measures taken by
Canada with respect to vessels fishing in the NAFO Regulatory Area” and “the enforcement
of such measures”, and that, consequently the Court concluded that it was within the terms of
one of the reservations in the Canadian declaration and found, by 12 votes to 5. The Court
found that it therefore had no jurisdiction to adjudicate in the case. (icj report,1998)

Why do you think so? Explain

I’m agreeing with jurisdiction by considering the following facts.

Both Spain and Canada have, in accordance with that provision, made declarations of
acceptance of the jurisdiction of the Court. The two States accordingly have the status of
declarant States for the purposes of Article 36, paragraph 2, of the Statute. With regard to the
effects of the Canadian reservation, Judge Vereshchetin considers that, while a State is
absolutely free to join or not to join the optional clause system, its freedom to make
reservations and conditions to the declaration deposited under Article 36, paragraph 2, of the
Statute is not absolute. For example, it is uncontested that the Court cannot give effect to a
condition imposing certain terms on the Court's procedure which run counter to the latter's
Statute or Rules. Generally, reservations and Conditions must not undermine the very raison
d’etre of the optional clause system. The Court as "an organ and guardian" of international
law may not accord to a document the legal effect sought by the State from which it
emanates, without having regard to the compatibility of the said document with the basic
requirements of international law. In the Court's view, it is generally accepted in international
law and the practice of states that, in order for a measure to be characterized as a
"conservation and management measure," it is sufficient that its purpose is to conserve and
manage living resources. According to which the reservation applied only to stateless vessels
or those flying a flag of convenience, runs contrary to a clear text expressing Canada's
intention (icj report,1998).

In the other hand as the result of court’s jurisdiction it impacts to the Spain sovereignty. In
Spain Application they indicated that by this action Canada had violated the principles of
general international law which proclaim freedom of navigation and freedom of fishing on
the high seas, violation of various principles and norms of international law and stated that
there was a dispute between Spain and Canada which, going beyond the framework of
fishing, seriously affected the very principle of the freedom of the high seas and, moreover,
implied a very serious infringement of the sovereign rights of Spain. as well as the exclusive
jurisdiction of the flag State over ships on the high seas. Spain also contended that Canada
had breached the norms of general international law which reject the right of hot pursuit on
the high seas and prohibit imprisonment and corporal punishment as penalties in case of
violations of fishing laws and regulations. Spain maintained that by the Canadian Act "an
attempt was made to impose on all persons on board foreign ships a broad prohibition on
fishing in the NAFO [Northwest Atlantic Fisheries Organization] Regulatory Area, that is, on
the high seas" the and norms of international law. (icj report,1998)

Bibliography

international-court-justice-rejects-jurisdiction-fisheries-jurisdiction,Pieter H.F. Bekker,

(December 11, 1998 ) https://www.asil.org/insights/volume/3/issue/13/international-court-
justice-rejects-jurisdiction-fisheries-jurisdiction,Volum:3

Fisheries-Jurisdiction-Case-Spain-v-Canada, (2001)
https://www.scribd.com/document/273299258/Fisheries-Jurisdiction-Case-Spain-v-Canada,

Fisheries-Jurisdiction-Case-Spain-v-Canada (1996),https://www.icj-cij.org/en/case/