Who rules the waves?

David Wyn Williams

The cod war has now settled down from the excited initial moves to a war of attrition. If it runs according to form, it will end in a few months' time with a temporary truce, so that both parties can attend the United Nations' conference on the Law of the Sea at Santiago next spring in a more relaxed fashion. Similarly, press reaction has lapsed from a close and understandably one-sided discussion of the issues involved between Iceland and the UK, to sparse and languid reporting of the facts, It is, therefore, a good time to look a some of the deeper issues involved in the disputed claim by Iceland to a fifty-mile fishery limit.

The first thing to realise is that there is in reality no legal magic in numbers, although many politicians behave as if there is. Even before the recent extension, Iceland's fishing zone already extended in one or two places beyond fifty miles from the nearest mainland coast. Britain, similarly, had (and still has) a twelve-mile limit, but this extends from twelve miles beyond the outmost islands of the Outer Hebrides in North West Scotland, to cover all the waters on the mainland side of those boundaries, in some cases up to thirty miles offshore.

The second point is that there is nothing unique or even European about the cod war. The Icelandic dispute is against both Britain and West Germany (the latter is often forgot' ten), but just the same sort of dispute is going on between Morocco and Spain, over a Moroccan claim to an extended fishing zone off her coast. This ' war' is also being waged with naval intervention, impounded fishing boats, threats of shooting. Recently also Pakistan, fed up with mechanised trawlers and drifters stripping bare her offshore breeding grounds, and thus making her twelve-mile fishing zone of nugatory value, also extended her limits, amid protests, to fifty miles. Across the Atlantic the Trudeau government in Canada extended the home fishing grounds by declaring a number of ' fishing closing lines,' across the mouths of the big bays, such as the Gulf of St Lawrence. Several South American states have for years maintained a claim to 200-mile wide fishing zones off their shores. This has led to many squabbles with the United States, and the so-called 'tuna war' with Ecuador. The dispute has led to cutting of aid by the US government, but with little tangible effect.

One must also bear in mind the claims to the continental shelf, made in order to have exclusive rights to the resources to be found In or on the sea bed. These claims give the UK government the right to deal as they please with half the sea bed of the North Sea. Similarly it gives control of the forest of drills in the Gulf of Mexico, and their produce, to the US Government, Other claims to extended jurisdiction for different purposes have also been made in recent years. Canada in 1970 imposed very strict pollution controls over a zone 100 miles wide off her Arctic coasts, after the USS 'Manhattan' proved that oil tankers could make the Northern Passage past those coasts. Earlier this year, South Africa declared her intention to impose a ban on any oil tanker sailing within twelve miles of her shores. Nor should it escape attention that France purported to prevent shipping entering within 60 miles of the coast of Muratoa Atoll during the French atomic bomb test period. Elsewhere, Malaysia and Indonesia, by both declaring territorial seas twelve miles wide, have laid claim to control over all ship

ping using the Malacca Straits that lie between them, to the consternation of Japan and the fury of Singapore. When Canada's pollution zone was challenged with a threat of action before the International Court Trudeau retorted by making this legally impossible, laconically commenting that he would not allow it "until the law catches up with technology."

It is through such a tangled skein of state practice that anyone seeking to define the rules of law must wend his way. To see how the confusion developed, it is perhaps best to take a long step backwards to the early 'thirties. Even in those days, the various coastal states of the world were disputing how wide their claims could be. A large group of the more traditional states, led by ourselves and the United States, contended that under international law states could only lay claim to a minimal strip of sea around their coasts as an area of exclusive jurisdiction, or territorial sea. For historical reasons, this width was, they claimed, no more than three nautical miles from the low-tide line on the shore. These states traditionally followed open-sea policies largely because in those days only two major interests were affected by such claims, security and trading routes. With powerful navies, narrow seas along their own coasts were no disadvantage, and were a great advantage along others' coasts, Other states, such as the USSR, laid claim to twelve-mile zones, to increase security. A conference convened at the Hague by the League of Nations to try to reach some compromise failed. After 1945, however, new interests started to emerge, and new attitudes harden. One of the first moves was made by the United States of America. In 1945, in what is known as the Truman Declaration, that President, on behalf of the United States, laid claim to the sea bed of the continental shelf contiguous to the shores of the United States, He did so in order to bring within Federal control the oil wells that had sprouted throughout the shallow waters of the Gulf of Mexico during the war. But his proclamation started a fashion and by 1958, when a Conference on the Law of the Sea was convened under the auspices of the United Nations at Geneva, there was clear agreement on the part of the participants to the acceptance in law of continental shelf claims.

Post-war circumstances had also put new pressures on world resources. Trawling fleets were increasingly thorough, increasingly far from home. Some of the South American states, annoyed at the way American fleets were scouring their offshore waters, laid claim to 200-mile coastal zones, either as territorial sea or merely as exclusive fishing zones. There was also a gradual extension of territorial seas from three miles to six or twelve miles. The 1958 conference at Geneva failed to reach agreement on any solution to this problem of width of the territorial sea, although the resultant treaty did contain an agreement that, in all events, the zone could not extend more than twelve miles from shore.

Even those states which stuck rigidly to a three mile limit, as the UK has, tended to use this provision to extend control, at least for fisheries, to twelve miles — as we did in the Fishery Limits Act, 1964.

Yet from 1958 to 1961 we had been engaged in what must now be seen as Round One of our cod war with Iceland, over her proclamation of a twelve-mile fishery zone. which we then claimed was illegal. The war came to an effective end in 1960 when both sides declared a stand-off while they attended a reconvened Law of the Sea conference at Geneva in 1960. This, however, achieved no result, but agreement was reached with Iceland in early 1961, by an exchange of notes between the two countries, recognising the limits claimed. It was a breach of this agreement that Iceland's further extension was de-.

clared. Iceland's allegations that this exchange of notes was invalid, had lapsed, and/or had expired were dismissed by the International Court in its preliminary ruling earlier this summer as ill-founded and therefore, as far as the Court is concerned, this treaty still stands.

One factor lying behind the 1961 agreement, and not disputed then, was also itself the subject of a dispute that the United Kingdom took to the International Court, and lost.

This was a squabble that blew up between this country and another Scandinavian nation. Norway. The argument was over the base lines from which the width of the fishing zones were measured. Traditionally this is the low-water mark, but a Norwegian royal decree replaced this natural base line along Norway's Arctic coast with a series of base lines which followed generally the line of the coast. but extended along the outer edge of the islands off the coast. These substantially increased Norwegian waters. Britain contested the legality of these base lines, and after a protracted period of dispute the matter came before the International Court of Justice. In a decision which broke new ground, the Court held that in general terms the Norwegian decision was legal, as there was no clear line between land and water on the coasts in question, and the economic interests of Norway ought to be taken into account. This decision in 1951 became generally accepted, and resulted on our part in the Territorial Waters Order in Council of 1964 which established a series of such base lines round Western Scotland. Iceland also laid down such base lines and the UK accepted these in 1961.

Yet again there was encroachment on the open sea. Throughout the last decade these encroachments continued at an undramatic level. But then technology raised a new problem. Who owned the deep sea bed? And associated with it was the problem of where the continental shelf ended. Advanced technology had broken through the limit set in the 1958 treaty, of 200 metres. At the initiative of Malta, the matter was brought before the United Nations General Assembly. The inevitable committee was set up and a sort of moratorium declared. Suggestions were made that the sea bed should, like the Antarctic, be made international territory. Further discussions hardened to the determination to have a repeat of the very largely successful 1958 conference on the Law of the Sea.

Originally scheduled for 1972, this is now to be held in Santiago next spring. Over recent years, partly no doubt as a result of this but partly also as a reaction to various technological changes, the pace of encroachment has continued. Few states now have only three mile territorial sea zones. Canada and France have both abandoned these limits in favour of twelve mile limits in the last couple of years, and Australia is of course intent on doing this as well. Even the United States has admitted on the record that the case for a three-mile limit is becoming untenable. Other states have gone beyond this to eighteen or even thirty miles, as Nigeria and Ghana have recently. Beyond the territorial belts, control in specified forms, as has been mentioned already, is increasing.

It is in this climate that the substantive merits of Iceland's claim should be noted. She is, it is true, in breach of the 1961 exchange of notes. On our application, the International Court has recognised its continuing validity. But the Court will probably not be able to examine the merits before the Santiago con ference is convened. The current court order allows Iceland until early next year to file a defence on the merits, if it decides to do so. Delays in International Court proceedings are not exactly unknown. It is usually the court and the law it tries to enforce that suffers, not the parties.

As an Icelandic consul in Britain remarked recently, it is an economic clash that is taking place, it is not a dispute between the Icelandic and the British peoples. No matter whose fault it is that the Icelandic inshore waters are overfished, the faintly ridiculous spectacle of a couple of dozen trawlers being pursued round fishing grounds by a dozen assorted naval vessels, coastguard vessels and ocean tugs, all pretending to be overgrown dodgem cars, hardly redounds to anyone's credit. Nor does it catch many fish.

David Wyn Williams, a frequent contributor to The Spectator, is a solicitor and a teacher of International Law.