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within the zone; and give preferential harvesting rights to U.S. fishermen within the zone, with surplus stocks to be shared with foreign nations. Further, the bill would require submission to Congress, for possible disapproval, within 60 days of signing, of all bilateral fishing agreements (other than treaties) with foreign nations which would permit fishing within the 200-mile zone, or fishing for anadromous fish beyond the zone if subject to a management plan. Other provisions include the banning of seafood imports from foreign nations which refuse to grant equitable access to U.S. fishermen with respect to waters previously fished by them, and the imposition of penalties against violators of the Act or implementing regulations.
A different bill, but also providing for a 200-mile fishery zone this one to last until such time as an international agreement on the subject comes into force or is provisionally applied—was introduced in the Senate by Senator Warren G. Magnuson. S. 961, the Magnuson Fisheries Management and Conservation Act, was reported favorably by the Senate Commerce Committee on October 7, 1975 (Senate Report No. 94-416), but unfavorably (7-6) by the Senate Foreign Relations Committee on November 8, 1975 (Senate Report No. 94459).
The primary purposes of the legislation, as described in the latter report, are: (a) to unilaterally extend U.S. fishery jurisdiction from 12 to 200 miles on an interim basis to protect the domestic fishing industry; (b) to extend U.S. control over anadromous fish (salmon) wherever they may range on the high seas; and (c) to establish a national fishery management program. The Senate bill would permit foreign fishermen who have traditionally fished in U.S. waters to catch stocks not fully exploited by U.S. fishermen; authorize agreements and direct review of existing agreements; set standards for management and conservation; establish seven Regional Fishery Management Councils and an appellate body, the Fishery Management Review Board, to consider disputes; and authorize annual funds for carrying out and enforcing the bill.
The Senate Foreign Relations Committee's comments and recommendations are set forth in its report as follows:
The Committee was of the opinion that to adopt S. 961 at this time would be inconsistent with the spirit of existing U.S. international legal obligations, particularly the 1958 Convention on the High Seas which specifically identifies freedom of fishing as an essential element of the overall high seas freedoms. Fortysix nations have signed this Convention and the United States, since 1966, has consistently opposed all other unilateral claims on the basis that they are violations of international law. The Committee believes that the drastic reversal of our position called for in S. 961 might seriously subvert U.S. credibility on all future ocean issues and negotiations.
Specifically, the Committee is concerned that S.961 might undermine the current efforts of the Third United Nations Law of the Sea Conference to reach a comprehensive multilateral agreement on these and other marine problems. ...
. . If the Conference is permitted to complete its task, there is strong indication that a 200-mile economic zone will be established which will fully protect U.S. coastal fishery interests. Should the Conference fail, there will be more than enough time to take unilateral action to protect our coastal resources. Therefore, the Committee recommends that the Senate not pass S. 961 at this time.
The Senate Committee on Commerce summarized its arguments in favor of the bill as follows:
As a result of the Committee's examination of the question of fisheries jurisdiction, it has concluded that: (1) the following stocks of fish of direct interest and importance to U.S. fishermen have been overfished-haddock, herring, mackerel, menhaden, sable fish, shrimp, yellowtail flounder, and halibut. It is also noted that the pollack, yellowfin sole, and hake, although of lesser importance to U.S. fishermen, have also been overfished; (2) the overfishing of these stocks of fish are in large measure attributable to massive foreign fishing efforts in waters immediately off the shores of the Nation; (3) international fishery agreements to which the United States is party and which purport to regulate and control fishing efforts on overfished stocks have been ineffective in that goal; (4) a generally acceptable treaty on marine fisheries management jurisdiction will not be negotiated, signed, ratified, and implemented until late in this decade and there is danger of further overfishing of other stocks; and (5) therefore, the United States in its own interest and in the interest of preserving threatened stocks of fish must take emergency action to manage, regulate, and control the taking of fish within 200 nautical miles of its shore, and the taking of anadromous species of fish and Continental Shelf fishery resources beyond such limit, pending international agreement on an acceptable treaty.
The Senate Armed Services Committee reported S. 961 favorably by a vote of 9 to 7 on December 3, 1975. The Senate approved the bill on January 28, 1976, by a vote of 77–19.
United States v. FNV Taiyo Maru, No. 28, 395 F. Supp. 413 (1975), was a forfeiture suit by the United States against a Japanese fishing vessel for violation of legislation regulating fishing in the territorial sea and the contiguous zone (16 U.S.C. 1081, 1091 et seq.). The vessel was seized on the high seas 9.28 miles from the coastline after pursuit initiated from beyond the U.S. territorial sea, but within the contiguous fisheries zone established by Act of Congress in 1966 (80 Stat. 908). The owner of the vessel filed a motion to dismiss on the ground that the Court lacked jurisdiction because the seizure was on the high seas and was thus in violation of U.S. treaty obligations. It was argued that pursuit could not be conducted to apprehend a foreign vessel unless it had violated a regulation or law passed for a purpose explicitly recognized as a basis for contiguous zone jurisdiction in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (TIAS 5639; 15 UST 1606; entered into force for the United States September 10, 1964). At issue was whether United States treaty obligations prevented the initiation of pursuit from within the contiguous fishery zone to enforce the regulations of maritime jurisdiction established for that zone by domestic legislation.
On June 17, 1975, the District Court for the District of Maine denied the defendant's motion to dismiss. The Court said it was persuaded that neither the language nor the history of the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the High Seas (TIAS 5200; 13 UST 2312; entered into force September 30, 1962) showed an intention to limit the right of a coastal state to exercise exclusive fishery jurisdiction within 12 miles of its coast, to establish a contiguous zone for such a purpose, or to conduct hot pursuit from such a zone. The Court stated:
It is clear . . . that, in becoming a signatory to the 1958 Conventions, the United States could not have intended to accept any limitation on its right to conduct hot pursuit for violations of exclusive fishery rights occurring within 12 miles of its coast, since the Geneva Conference could not agree as to whether a contiguous zone could be established for the purpose of enforcing domestic fisheries law. It is apparent that Congress was well aware of its obligations under the 1958 Conventions when the 1966 Contiguous Fisheries Zone Act was enacted, and that Congress perceived no conflict between the Act and the treaty provisions. . . . (at p. 421.)
Continental Shelf Fishery Resources
The Department of State, on August 27, 1975, announced that talks between the United States and the Bahamas designed to permit U.S.-based fishermen access to the Bahamian spiny lobster resource on the Continental Shelf had failed. The Department called for peaceful settlement of the dispute and suggested that the issue be submitted to the International Court of Justice.
The Bahamas had declared jurisdiction over the spiny lobster as a living resource of the Continental Shelf on July 9, 1975. Similar action had been taken by the United States in January 1974 when it declared jurisdiction over American lobster as a living resource of the Continental Shelf.
The Department of State announcement stated that proposals advanced by the United States included joint conservation measures and cooperation in scientific research, limitations on United States fishing efforts, measures to ensure that there would be no competition for that portion of the resource Bahamian fishermen are able to take, license fees to be paid to the Bahamas, assistance in enforcement, and especially assistance in training Bahamian fishermen. It added that these proposals were not accepted by the Bahamas Government, and no counter-proposals were offered by it.
David H. Wallace, Chairman of the U.S. delegation, stated that severe hardship would be caused for many U.S. spiny lobster fishermen. He pointed out that United States fishermen had engaged in fishing for spiny lobster on the Bahamas Banks for many years. He also noted that a joint U.S.-Bahamian group of scientific experts had developed a report which clearly indicated a substantial availability of lobster on the banks which could be taken without prejudice to the stock or the plans of the Bahamas for expansion of their fishery.
Mr. Wallace announced that he had made the following statement to the Bahamian delegation:
Without questioning the validity of the Bahamian claim of jurisdiction over spiny lobster as a living resource of the Continental Shelf, the United States Government believes that the Bahamas have an obligation under international law to take into account the interests of fishermen that previously fished for spiny lobster in the area, and to negotiate reasonable arrangements regarding United States flag vessels to that end. We believe such arrangements would strengthen the interests of both countries in the conservation and effective utilization of the stocks, and would not in any sense be incompatible with the interests or jurisdiction of the Bahamas.
The Department of State announcement included the following plea for restraint in the matter and for peaceful settlement of the dispute:
Pending resolution of this issue, the United States calls on all concerned to avoid any acts or provocations that could result in violence. We call on the Government of the Commonwealth of the Bahamas to exercise restraint in this matter. For its part, the United States will enforce its laws to the fullest extent within the U.S. and with respect to American vessels.
The United States Government will continue to do everything possible to ensure that transitional arrangements will be made that fairly protect the interests of our fishermen and fishing vessels as well as those of the Bahamas. Accordingly, the United States Government immediately intends to pursue discussions between the two Governments regarding the accepted methods for the peaceful settlement of disputes, such as negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. In particular, we are suggesting to the Government of the Commonwealth of the Bahamas that the issue be submitted immediately to the International Court of Justice.
Dept. of State Bulletin, Vol. LXXIII, No. 1890, Sept. 15, 1975, pp. 414415. For U.S. action in Jan. 1974 regarding American lobster on the Continental Shelf, see the 1974 Digest, pp. 317-318.
On Aug. 27, 1975, the U.S. Embassy in Nassau transmitted a note to the Government of the Commonwealth of the Bahamas proposing that discussions be undertaken immediately regarding accepted methods for peaceful settlement of the dispute and stating U.S. readiness to agree to its submission to the International Court of Justice. See post, Ch. 13, § 3, p. 766.
On February 26, 1975, representatives of the United States and the Soviet Union signed at Washington an Agreement on Certain Fishery Problems on the High Seas in the Western Areas of the Middle Atlantic Ocean (TIAS 8021; 26 UST 138; entered into force in part February 26, 1975, in full April 1, 1975). The Agreement constitutes an extension and modification of the provisions of the Agreement between the two governments signed at Copenhagen June 21, 1973 (TIAS 7664; 24 UST 1603; entered into force July 1, 1973). The new Agreement provides for stricter enforcement of U.S. regulations relating to the taking of U.S. continental shelf fishery resources and strengthens measures aimed at minimizing gear conflicts between Soviet mobile (trawl) gear and U.S. fixed gear (lobster pots). It also calls for coordinated research programs, the entry of a limited number of fishing vessels of each country into designated ports of the other country, subject to advance notice, and regular visits of representatives of the two countries to exchange information and discuss problems relative to fishing grounds, operations of fishing fleets, and questions arising from application of the Agreement.
Notes exchanged Dec. 18 and 30, 1975 (TIAS 8221; 26 UST) extended the Agreement through Feb. 29, 1976, or until the effective date of a new agreement, provided the latter was signed prior to Mar, 1, 1976.