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Sedentary Fisheries and the Convention on the Continental Shelf

Published online by Cambridge University Press:  28 March 2017

Richard Young
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Extract

The Convention on the Continental Shelf of April 29, 1958—one of the works of the first United Nations Conference on the Law of the Sea— declares in Article 2(1) that the “coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” The fourth paragraph of the same article defines these resources as

the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Type
Research Article
Information
American Journal of International Law , Volume 55 , Issue 2 , April 1961 , pp. 359 - 373
Copyright
Copyright © American Society of International Law 1961

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References

1 Text in 1st U. N. Conference on the Law of the Sea (1958) (cited hereafter as 1958 Geneva Conference), 2 Official Records 142-143, U.N. Doc. A/CONF.13/38 ; 52 A.J.I.L. 858-862 (1958).

2 Sedentary fisheries are not negligible, however. Pearl-shell, much of it found in the high seas, exported from Australia in 1958-1959 was valued at more than $1,300,000. Statesman’s Year-Book (1960-1961) 473. An annual take of 45 to 95 tons of Libyan sponges is said to have brought in recent years export prices averaging $12,000 per ton. In the peak year of 1947, sponges sold at Tarpon Springs, Florida, had a sale value of $1,742,000. Morgan, World Sea Fisheries 228, 242 (1956).

3 Art. 13. Text in 1958 Geneva Conference, 2 Official Records 139-141, U.N, Doc. A/CONF.13/38; 52 A.J.I.L. 851-858 (1958).

4 Le Droit des Gens (translated by Fenwick in Classics of International Law), Book I, See. 287 (1758).

5 E.g., 1 Twiss, The Law of Nations 312-313 (2d ed., 1884) ; 1 Oppenheim, International Law 333 note (1st ed., 1905) ; 1 Westlake, International Law 190-191 (1st ed., 1904) ; Lindley, Acquisition and Government of Backward Territory in International Law 68-69 (1926). All cite Vattel as authority; all, incidentally, are British.

6 Fulton, The Sovereignty of the Sea 696-697 (1911).

7 1 Calvo, Droit International 481 (5th ed., 1896). An example of state practice in accord with Calvo’s view was the British refusal in 1825 to recognize a French claim to property rights in oyster beds more than one league off the French coast—a dispute settled by the Anglo-French Convention of 1839. 2 Smith, Great Britain and the Law of Nations 148-149 (1935) ; Leonard, International Regulation of Fisheries 35-42 (1944).

8 1 Gidel, Droit International Public de la Mer 500-501 (1932).

9 For Twiss, see 2 Smith, Great Britain and the Law of Nations 121 (1935). Among modern commentators see O’Connell, , “Sedentary Fisheries and the Australian Continental Shelf,” 49 A.J.I.L. 185, 206 (1955)Google Scholar; Johnson, , “The Legal Status of the Sea-Bed and Subsoil,” 16 Zeitschrift für Völkerrecht 469 (1956)Google Scholar. Contra, Mouton, The Continental Shelf 150 (1952).

10 After some years of decline, efforts are reportedly now being made in India to revive the pearl and chank fishing industry. During the 1960 season a record number of 15,000,000 oysters were said to have been taken off Tuticorin, New York Times, Aug. 25, 1960.

11 1 McNair (ed.), International Law Opinions 259-264 (1956).

12 Hurst, , “Whose Is the Bed of the Sea?” 4 British Year Book of International Law 34, 42 (1923-1924)Google Scholar.

13 League of Nations Doc. C.74.M.39.1929.V, 162. Views to the same effect were also expressed by India, New Zealand, the Union of South Africa, and Australia: ibid. 106, 166, 176; Doc. C.74(a).M.39(a).1929.V, 2. The 1952 comments are printed in International Law Commission, 1953 Report 69-70, U.N. Doc.A/2456.

14 l Oppenheim, International Law 576 (7th ed., Lauterpacht, 1948). In the 8th ed. (1955), p. 628, the phrase “by strictly local occupation” was omitted.

15 International Law Commission, 1951 Report 20, U.N. Doc. A/1316; 45 A.J.I.L. Supp. 145-146 (1951).

16 International Law Commission, 1953 Report 14, U.N. Doc. A/2456; 48 A.J.I.L. Supp. 32 (1954).

17 The comments of governments on the 1951 draft are printed in the Commission’s 1953 Report 42-72.

18 Mouton, The Continental Shelf 151-161 (1952); Young, , “The International Law Commission and the Continental Shelf,” 46 A.J.I.L. 127-128 (1952)Google Scholar.

19 U.N. Doc. A/CN.4/60, pp. 104-105 (Feb. 19, 1953).

20 International Law Commission, 5th Session (1953), Summary Records of the 198th-201st, 205th, 208th, 209th Meetings, U.N. Docs. A/CN.4/SR. 198-201, 205, 208, 209.

21 “The American oyster fishery is domestic, since that fishery is confined to the coastal waters.” Statement of the U.S. Acting Commissioner of Fisheries, Dec. 7, 1935, quoted in 1 Hyde, International Law 760 (2d ed., 1945).

22 Mouton, , “The Continental Shelf,” 85 Hague Academy Recueil des Cours 441-445 (I, 1954)Google Scholar, a well-considered analysis. A full-length study critical of the Commission’s marriage of sedentary fisheries and the continental shelf is Papandreou, La Situation Juridique des Pêcheries Sédentaires en Haute-Mer (1958).

23 International Law Commission, 1956 Report 42, U.N. Doc. A/3159 ; 51 A. J.I.L. 154 (1957).

24 Report of the Conference, U.N. Doc. A/CONF.10/6 (July, 1955) ; Papers Presented at the Conference, U.N. Doc. A/CONF.10/7 (January, 1956).

25 Sverdrup, Johnson, and Fleming, The Oceans 306, 315, 319-320 (1942).

26 Allan, Australian Shells 266 (1950).

27 Lord Asquith of Bishopstone, Award in Petroleum Development Ltd. v. Sheikh of Abu Dhabi, 1955 Int. Law Rep. 155 note.

28 The spiny lobster of the Gulf of Mexico, a pedestrian, has been known to travel 100 miles in about as many days. Walton Smith, “Biology of the Spiny Lobster,” U.S. Fish and Wildlife Service, Fishery Bulletin 89, Gulf of Mexico: Its Origin, Waters, and Marine Life 464 (1954).

29 Preparatory Doc. No. 10, Examination of Living Resources Associated with the Sea Bed of the Continental Shelf, U.N. Doc. A/CONF.13/13 (Nov. 6, 1957).

30 The proceedings may be followed in 1958 Geneva Conference, 6 Official Records 48-72, U.N. Doc. A/CONF.13/42. See also Whiteman, , “Conference on the Law of the Sea: Convention on the Continental Shelf,” 52 A.J.I.L. 638-640 (1958)Google Scholar; García-Amador, Exploitation and Conservation of the Resources of the Sea 126-128 (1959).

31 1958 Geneva Conference, 6 Official Records 143, U.N. Doc. A/CONI\13/42.

32 Whiteman, loc. cit. 638 note.

33 The proceedings in the plenary sessions are reported in 1958 Geneva Conference, 2 Official Records 13-15, U.N. Doc. A/CONF.13/38.

34 It seems unlikely that controversy will soon arise over oysters grown on racks suspended in the water, as is the case in certain Norwegian fjords. This technique is employed because the deep bottom waters of the fjords, cut off from free circulation with ocean waters by high sills at the entrances, accumulate amounts of hydrogen sulphide toxic to oysters and most marine life. Sverdrup, Johnson, and Fleming, The Oceans 802 (1942). Yet one may speculate: Are such oysters sedentary?

35 García-Amador, Exploitation and Conservation of the Resources of the Sea 1S8 (1959).

36 An example is the United Arab Republic decree on the continental shelf of Sept. 3, 1958, which is framed in harmony with the convention. Text (translated) in 54 A.J.I.L. 491-492 (1960).

37 Cf. the rejection by the International Court of Justice in the Fisheries Case of the ten-mile limit for territorial bays, on the ground of its not having “acquired the authority of a general rule of international law.” [1951] I.C.J. Rep. 116, 131.

38 See note 7 above. Another instance may be found in the Australian pearling legislation of 1888 and 1889, which undertook to regulate pearling beyond territorial limits, but which, in accordance with ordinary jurisdictional principles, was expressly confined to British ships. Federal Council of Australasia, Queensland Pearl-Shell and Bêche-de-Mer Fisheries (Extra-territorial) Act, 51 Vict. No. 1 (1888) ; Western Australian Act, 52 Vict. No. 1 (1889) ; texts in 18 Hertslet, Commercial Treaties 573, 576.

39 The effect of the change in basis is easily seen in the history of the 1952-1953 Australian legislation asserting jurisdiction over pearl fisheries beyond territorial limits. The Pearl Fisheries Act 1952, Act. No. 8 of 1952, was apparently conceived on traditional theories of occupation and use, and its validity against non-nationals was seriously questioned. Pankhurst, , “The Fisheries Act and the Pearl Fisheries Act,” 1 Sydney Law Review 96-104 (1953)Google Scholar. The Act was never brought into force in its original form. After the International Law Commission’s reversal of view in 1953, the statute was immediately amended so as to found the claim of jurisdiction on the shelf doctrine. Pearl Fisheries Act (No. 2) 1953, Act No. 38 of 1953.

40 Mouton, , “The Continental Shelf,” 85 Hague Academy Recueil des Cours 444 (I, 1954)Google Scholar.

41 Although sedentary fisheries may exist in shallow areas of the high seas which do not lie upon any continental shelf, they are not believed to present a problem of practical importance.

42 International Law Commission, 1956 Report 42, U.N. Doc. A/3159. But as Professor Waldock has observed, explanations in a commentary are unlikely to impress states bent on enlarging their maritime claims.

43 Sørensen, “Law of the Sea,” International Conciliation, No. 520, p. 231 (1958).