Fisheries Jurisdiction (Spain v. Canada)

On 28 March 1995 Spain filed an application instituting proceedings against Canada with respect to a dispute relating to the Canadian Coastal Fisheries Protection Act (as amended on 12 May  1994), to the implementing regulations of that Act and to certain measures taken on the basis of that legislation. The dispute deals in particular with the boarding on the high seas, on 9 March 1995, of a fishing boat, the Estai, flying the Spanish flag and with a Spanish crew, by a Canadian patrol boat, the Cape Roger.

Spain alleged that the boarding of the Estai by the Cape Roger occurred "after successive attempts at boarding by gunboats manned by individuals armed with automatic weapons". It added that "the boat and its crew were forcibly escorted away and held incommunicado in the Canadian port of St. John's, Newfoundland, where the captain of the boat was imprisoned and subjected to criminal proceedings for having fished on the high seas". In its Application, Spain 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, 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".

As a basis of the Court's jurisdiction, Spain referred to the declarations of both States by which they accept that jurisdiction as compulsory (Article 36, paragraph 2, of the Statute of the Court).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.   On 21 April 1995, Canada informed the Court that it lacked jurisdiction to deal with the case because of a reservation made in its Declaration recognizing the compulsory jurisdiction of the Court of 10 May 1994. In this Declaration, Canada said the Court had a compulsory jurisdiction "over all disputes . . . other than . . . disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area . . . and the enforcement of such measures".

On December 4, 1998, the International Court of Justice (ICJ) ruled (12-5) that it lacks jurisdiction to adjudicate the dispute brought by the Kingdom of Spain against Canada in 1995. The Court agreed with Canada that the words of an Optional Clause declaration, including a reservation contained therein, must be interpreted in a natural and reasonable way, having due regard to the intention of the state making the reservation at the time when it accepted the Court's compulsory jurisdiction. Such state's intention, in turn, may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, the circumstances of its preparation, and the purposes intended to be served. The Court thus stressed that a reservation to a declaration should be interpreted in a manner compatible with the effect sought by the reserving state; reservations operate to define the parameters of a state's acceptance of the Court's compulsory jurisdiction.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. The Court addressed what it saw as Spain's four main arguments in favor 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 (4) the pursuit, boarding and seizure of the Spanish ship cannot be regarded in international law as the enforcement of conservation and management measures. 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. 

This is the first time since the judgment in Aegean Sea Continental Shelf (Greece v. Turkey) rendered in 1978 that the Court has found, at a preliminary stage, that it is without jurisdiction to entertain an application. The Court's refusal to entertain Portugal's Application in the case concerning East Timor (Portugal v. Australia) in 1995, although technically a dismissal, was based on a finding at the merits stage that the Court could not exercise the jurisdiction conferred upon it to adjudicate the dispute referred by Portugal in the absence of Indonesia as a necessary third party.

Source : http://www.asil.org/insigh28.cfm