The turbot war of 1995: Lessons for the law of the Sea

International Journal of Marine and Coastal Law

Volumn 11, Issue 4, 1996, Pages 425-458

  Joyner, Christopher C ^a   Von Gustedt, Alejandro Alvarez ^a  

^a GEORGETOWN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

SCOPHTHALMIDAE;

1995 TURBOT WAR; FISHERY DISPUTE; FISHERY DISPUTES; HIGH SEA FISHERIES; LAW OF THE SEA; STRADDLING STOCKS; TURBOT WAR (1995); UNCLOS;

ATLANTIC, (NORTHWEST);

EID: 0030423882     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180896X00267     Document Type: Article

References (72)

1. See, Clyde H. Farnsworth, "Canada and Spain Face Off Over Fishing Zone", New York Times, 12 March 1995, p. 19
2. and Anne Swardson, "Canada Fires Warning Shots, Seizes Fishing Boat in International Waters", Washington Post, 10 March 1995, p. A25.
3. For the reaction in Spain, see Primitivo Carbajo, "Canada apresa al pesquero espafi1ol 'Estai' tras cinco horas de persecution en aguas internacionales" ("Canada seizes the Spanish Fishing Vessel 'Estai' after chasing it for Five Hours in International Waters"), El Pais (Madrid ed.), 10 March 1995, p. 55;
4. Jose Manuel Calvo, "La Policia Montada, al abordaje" ("The Royal Mounted Police, Boarding Ships"), El Pais (Madrid ed.), 12 March 1995, p. 51;
5. Luis Atienza Serna, "Son conservacionistas los piratas?" ("Are conservationists pirates?"), El Pais (Madrid ed.), 12 March 1995, p. 50
6. (arguing that Canada's boarding of the Estai was a "flagrant violation of international ocean law which is beyond the problems of management and conservation of fisheries resources in international waters . [which] threatens to impose the law of the jungle on the exploitation of marine resources .). For an early analysis, see David Freestone, "Current Legal Developments: Canada/European Union. Canada and the EU Reach Agreement to Settle the Estai Dispute", (1995) 10 IJMCL 397-401. Throughout this study, the term "European Community" (or "EC") is used to denote activities conducted under what is now termed the European Community (formerly EEC) Treaty. The term "European Union" (EU) is an umbrella term for activities conducted under the Maastricht Treaty, including the two "pillars" of a Common Foreign and Security Policy and Co-operation in the fields of Justice and Home Affairs. The 15 European states in the EC that in 1995 aligned against Canada in the "Turbot War" include Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and United Kingdom.
7. The beginnings of the modern law of the sea are often attributed to Hugo Grotius. See Hugo Grotius, Mare Liberum. The Freedom of the Seas: Or the Right which belongs to the Dutch to take part in the East Indian Trade (Ralph van Deman Magoffin trans and rev., Oxford University Press, 1916) (1633), pp. vii-viii.
8. Peter H. Pearse, "From Open Access to Private Property: Recent Innovations in Fishing Rights as Instruments of Fisheries Policy", (1992) 23 Ocean Development and International Law 72.
9. The term "patrimonial sea" was first formally incorporated into the Declaration of Santo Domingo, UN Doc. A/AC. 138.80 (1972). See E. Vargas Carreno, America Latina y los Problemas Contempordneos del Derecho del Mar (1973).
10. Done 6 May 1882, entered into force 15 March 1884, published in Deutsches Reichs Gesetzzblott No. 11 (1884), p. 25. Parties included Belgium, Denmark, France, Germany, Great Britain, and the Netherlands.
11. See Manley O. Hudson, "The First Conference on the Codification of International Law, (1930) 24 American Journal of International Law
12. and Jesse S. Reeves, "The Codification of the Law of the Seas: Territorial Waters", (1930) 24 American Journal of International Law (1930) 492-493.
13. See Arthur Dean, "The Geneva Conference on the Law of the Sea: What Was Accomplished", (1958) 52 American Journal of International Law 607
14. and Arthur Dean, "The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Sea", (1960) 54 American Journal of International Law 751-772.
15. G.A. Res. 2570 C, UN General Assembly 25th Session (17 Dec. 1970). See also R.R. Churchill and A.V. Lowe, The Law of the Sea (Manchester, Manchester University Press, 1985), p. 15.
16. But such optimism was clearly misplaced. Fisheries came under increasingly heavy pressures from exploitation, much of it by distant-water fishing fleets. See Michael Satchell, "The Rape of the Oceans", U.S. News & World Report, 22 June 1992, pp. 66-67.
17. As a consequence, some countries sought to extend the reach of national jurisdiction beyond their fishing or economic zones. A prominent example was Chile, who in 1991 put forward the concept of a Mar Presencial, or presential sea, through which it could control fisheries and other activities over a vast area of the southeast Pacific Ocean. For contrasting views on the lawfulness of such an extraterritorial extension of national jurisdiction, see F. Orrego Vicuna, "Toward an Effective Management of High Sea Fisheries and the Settlement of the Pending Issues of the Law of the Sea", (1993) 24 Ocean Development and International Law 81-92 contra
18. C.C. Joyner and P. De Cola, "Chile's Presential Sea Proposal: Implications for Straddling Stocks and the International Law of Fisheries", (1993) 24 Ocean Development and International Law (1993) 101-121.
19. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, UN Doc. A/CONF./62/122 (1982), reprinted in The Law of the Sea: United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea (New York: United Nations, 1983), UN Sales No. E.83.V.5 (hereinafter cited as 1982 LOS Convention).
20. Provisional application of the convention upon its entry into force to several non-ratifying states was accomplished by the negotiation of a special "Implementation Agreement" in July 1994 that revised certain objectional provisions in Part XI of the convention, dealing with deep sea-bed mining. See G.A. Res. 48/263 (28 July 1994), Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. For assessments, see Moritaka Hayashi, "The 1994 Agreement for the Universalization of the Law of the Sea Convention", (1996) 27 Ocean Development and International Law 31-40
21. and Christopher C. Joyner, "The United States and the New Law of the Sea", ibid., pp. 41-58.
22. Convention on Future Multilateral Co-operation in the North-West Atlantic Fisheries, Official Journal of the European Communities (hereinafter OJ), (L 378) 30 December 1978 (cited hereinafter as NAFO Convention).
23. W.G. Doubleday, A.T. Pinhorn, R.G. Halliday, R.D.S. Macdonald, and R. Stein, "The impact of extended fisheries jurisdiction in the Northwest Atlantic", in E. Miles (ed.), Management of World Fisheries (Seattle, University of Washington Press, 1989), p. 34.
24. Claude Emery, "Overfishing Outside the 200-mile Limit: Atlantic Coast", Canadian Doc. 90-6E (10 October 1990) Research Branch, Library of Parliament, Canada (revised 13 April 1993, with 1995 addendum), p. 3.
25. Fishing Zones of Canada (Zones 4 and 5) Order, in 110 The Canada Gazette Extra No. 101 (1 November 1976), entered into force 1 January 1977, reprinted in (1976) 15 ILM 1372. See also Doubleday et al., n. 29 above, p. 38. Canada has not actually claimed an exclusive economic zone, but rather an exclusive fisheries zone (EFZ). The rights and duties involved in the EFZ legal regime are analogous to those in the EEZ, save for the regulation of research and pollution control. Within the context of this study, the term EFZ is used when specifically referring to the Canadian 200-mile area offshore. See 1982 LOS Convention, n. 10 above, Arts. 63 and 119.
26. NAFO Convention, n. 27 above. The following are currently counted among the contracting parties to NAFO: Bulgaria, Canada, Cuba, Denmark, Estonia, European Economic Community, Iceland, Japan, Republic of Korea, Latvia, Lithuania, Norway, Poland, Romania, and Russian Federation. Spain and Portugal, two major fishing states, became parties de jure through their accession to the EEC in December 1986. "Notice of Other Documents, Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries (1978)", (1995) 34 International Legal Materials 1452.
27. Robin Churchill, "Fisheries Management and the 200 Mile Zone", in The Regulation of Fisheries: Legal, Economic and Social Aspects (Strasbourg, Council of Europe, 1987), p. 3.
28. R.W. Crowley, "Rights to fish: The Canadian experience", in Property Rights Modifications in Fisheries (OECD, Paris, 1992), p. 38.
29. Fisheries Reports and Statistics (Organization for Economic Cooperation and Development, Paris, 1992), p. 50.
30. Fisheries Reports and Statistics, a. 50 above, p. 50.
31. Some commentators contend, however, that a special kind of coastal state interest might have been developed as regional customary law; others see its justification in Art. 116 of the convention, upholding the rights of nationals to fish on the high seas. Still others contend differently that, "One could argue that no such subregional rule could be inferred from the accommodation of Canada's interests by granting it preferential treatment under the NAFO Convention." See Barbara Kwiatkowska, "Creeping Jurisdiction beyond 200 Miles", (1991) 22 Ocean Development and International Law 169.
32. As Gordon R. Munro affirms: "The premise is that where there are two or more coastal State joint owners of a fishery resource, each State will seek to maximize its own economic benefit from the resource over time, however these benefits may be defined. No reliance is or should be placed upon the altruism of the joint managers." Gordon R. Munro, "The management of shared fishery resources under extended jurisdiction", in The Regulation of Fisheries, n. 48 above, p. 28.
33. See European Commission, "Difference of the European Union with Canada concerning the Fisheries Dispute II", Information Note No. 15/95 (30 March 1995), pp. 3-4.
34. Treaty of Rome, Treaty Establishing the European Economic Community, March 25, 1957, in Treaties Establishing the European Communities (Office for Official Publications of the European Communities, Luxembourg, 1987).
35. See D. Freestone and A. Fleisch, "The Common Fisheries Policy", in J. Lodge (ed.), The Institutions and Policies of the European Community (New York: St Martins', 1983), pp. 77-84
36. and R.R. Churchill, "EC Fisheries and an EZ.-Easy!", (1992) 23 Ocean Development and International Law, pp. 145-163.
37. See Churchill, EEC Fisheries Law (1987) 167-202.
38. At the time of the Canadian-EU dispute during March-April 1995, Spain had an unemployment rate of 23.9 per cent. See The Economist, 27 April 1996, p. 112.
39. See Churchill, "EC Fisheries and an EZ-Easy!", n. 61 above, pp. 147-155.
40. Mike Holden, The Common Fisheries Policy, Origin, Evaluation and Future (1994), pp. 35-37.
41. Even after the dispute began, quota limits remained an acute concern for Spain, since unemployment in the fishing industry was estimated to increase by nearly 1,000 for every 10 per cent the EU quota was reduced. See Xavier Vidal-Folch and Jose Hermida, "Canada endurece sus condiciones y exige que la cuota de pesca de la UE sea del 32%" ("Canada Hardens Its Position and Demands that the EU's Quota be 32 per cent"), El Pais (Madrid ed.), 1 April 1995, p. 50.
42. "Fisheries: EU Formally Objects to NAFO Turbot Quotas as Canada Warns Against", The European Report, No. 2021 (4 March 1995), p. 1.
43. "Fisheries: EU and Canada on Brink of Fish War", European Report No. 2022 (8 March 1995), pp. 9-10.
44. It is interesting to note that from 1979 to 1986, the European Community did not object to any conservation measure taken by the NAFO contracting parties. From 1986 to 1992, the EC resorted to the objection procedure 52 times. In this regard, it is noteworthy that Spain and Portugal joined the EC on 1 January 1986. From 1992 to February 1995, no EC veto of a NAFO policy measure took place, even though this period coincides with a period of increasing Spanish and Portuguese catches in NAFO's sub-area 3. J.A. Beesley and M. Rowe, "International law supports our actions", The Daily Gleaner, 12 May 1995.
45. Canada Gazette. Part II Vol. 128, No. 12, 15 June 1994, 2222-2227
46. Canada Gazette Part II Vol. 128 Extra, 17 June 1994, 1-4
47. and Canada Gazette Part II Vol. 128, No. 13, 15 June 1994, 2574-2578 (entered into force 25 May 1994), reprinted as
48. "Canada: Coastal Fisheries Protection Act", (1994) 33 International Legal Materials 1383 with Implementing Regulations of 3 March 1995 Section 21, Table IV, Items 1 and 2 (SOR/95-136)
49. Canada Gazette Part II (1995), p. 650.
50. "EU/Canada: Release of Spanish Trawler Raises Hope of Settlement of Fish Row", The European Report No. 2025 (18 March 1995), p. 11.
51. "Fisheries: Bonino Condemns Canadian Attack as an Act of Piracy", The European Report No. 2023 (11 March 1995), p. 1.
52. The Fisheries Jurisdiction Case (Spain v Canada) ICT Communique 95/12, 2 May 1995.
53. See "EU/Canada: Both Sides Declare Progress in Fish Talks", The European Report No. 2029 (1 April 1995), p. 6. The Canadian legislation may not necessarily be unlawful, as Spain contends. The evolution of customary international law involves a constant process. Considering particular circumstances of the management of straddling stocks and the prominent role played by the coastal state, certain practices of states could generate new international customary law. Salient arguments suggested by this case before the ICJ conceivably might include the following: 1. While Arts. 87 and 116 of the 1982 LOS Convention approve freedom of the high seas and the right to fish in the high seas, these activities are made subject to conservation provisions in the convention. Spain contends that the Estai violated none of these provisions; Canada alleges that it did. 2. Article 89 invalidates any attempt to subject part of the high seas to state sovereignty. While evolution of international law might eventually transform this rule, thus far it has not. Spain contends that Canada's action constituted an unlawful extension of state sovereignty into high seas areas; Canada asserts its action was aimed at conserving fishery stocks inhabiting its EEZ from being overexploited while in high seas areas. 3. That the right of jurisdiction over a vessel in the high seas belongs to the flag state is provided for in Art. 92. Spain is the flag state, and Canada's seizure allegedly breached that jurisdiction; Canada might reasonably claim that inspection is not jurisdiction. 4. Article 110 prohibits actions by warships over foreign vessels in the high seas. Canada could argue that its coast guard was merely upholding conservation measures approved by its national legislation.
54. Emery, n. 32 above, p. 15. See also "EU/Canada: EU Suspends Ties with Canada Over Fisheries Dispute", The European Report No. 2024 (25 March 1995), pp. 8-9.
55. "Both Sides Declare Progress in Fish Talks", n. 86 above, p. 6.
56. Compare "EU/Canada: Tensions Ride Again Over Fish in North Atlantic", The European Report No. 2028 (29 March 1995), p. 3.
57. "EU/Canada: Release of Spanish Trawler Raises Hope of Settlement of Fish Row", n. 83 above, p. 11.
58. "EU/Canada: EU Suspends Ties with Canada Over Fisheries Dispute", The European Report No. 2024 (15 March 1995), p. 8.
59. The European Trade Commissioner, Sir Leon Brittan, said on 14 March that he reserved the right to take such action against Canada. However, agreement could not be reached on this issue, since the United Kingdom opposed taking such an offence against a Commonwealth member. Canada did enact trade measures against the European Union, raising tariffs on 27 March on imports of vodka, perfume, high-quality women's shoes and glassware from the EU. See Bruce Barnard, "EU-Canada Trade Plate Has More Than Fish on It", Journal of Commerce, 15 March 1995.
60. "EU/Canada: Release of Spanish Trawler Raises Hope of Settlement of Fish Row", n. 83 above, p. 11.
61. "EU/Canada: Tensions Ride Again Over Fish in North Atlantic", n. 89 above, p. 2.
62. See also "Buques canadienses, con hombres armados, intentan apresar a dos barcos espanoles" ("Canadian Ships with Armed Personnel Try to Seize Two Spanish Vessels"), ABC (Madrid ed.) 27 March 1995, p. 28.
63. "EU Divided on How to Tackle Fish Row with Canada", The European Report No. 2031 (8 April 1995), p. 10.
64. See also "La UE, excepto Londres, condena la nueva agresion a la flota espanola, aunque no rompe el dialogo con Canada" ("The EU, except London, Condemns the New Aggression against the Spanish Fleet, although Conversations with Canada will not be Interrupted"), ABC (Madrid ed.) 7 April 1995, p. 1.
65. "EU Divided on How to Tackle Fish Row with Canada", n. 95 above, p. 10.
66. "Both Sides Declare Progress in Fish Talks", n. 86 above, pp. 5-6.
67. Canadian officials estimated Spanish catches preceding the dispute to have exceeded 10,000 metric tons; contrariwise, the EU claimed that they in fact totalled around 7,000 metric tons. "EU Divided on How to Tackle Fish Row with Canada", n. 95 above, p. 12. See "La Pesca Espanola, al Borde del Naufragio" ("The Spanish Fishing Industry, on the Brink of Shipwrecking"), ABC, 7 April 1995, cover;
68. "El Acuerdo con Canada pone en pie de guerra a los Pescadores gallegos" ("The Agreement with Canada Puts the Galician Fishermen on a War Footing"), El Pais (Madrid ed.), 17 April 1995, cover;
69. and "Negro como el fletan" ("Black as Turbot"), El Pais (Madrid ed.), 17 April 1995, p. 12.
70. European Commission, "NAFO Annual Meeting, 12-16 September 1995", Press Release IP/95/ 988 (Brussels 15 September 1995), p. 2; "EU/NAFO: EU Pact with Canada Ensures North Atlantic Fish Quota Deal", The European Report No. 2067, 16 September 1995, p. 8.
71. David Balton, "Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks", (1996) 27 Ocean Development and International Law, at 126, n. 24.
72. The final text of the Agreement is UN G.A. Doc. A/CONF. 164/37 (8 September 1995), reprinted in (1995) 34 ILM 1542-1580. On 4 August 1995, the Conference adopted the agreement by consensus. On 4 December 1995, the Agreement was opened for signature in all the official languages, thus launching the period for ratification. Throughout this study it is referred to as the "UN Straddling Stocks Agreement". For timely assessments of these issues, see David Freestone, "The Effective Conservation and Management of High Seas Living Resources: Towards a New Regime?", (1995) 5 Canterbury Law Review (New Zealand), 341-362 and Balton, n. 116 above.