Hostname: page-component-cd9895bd7-7cvxr Total loading time: 0 Render date: 2024-12-27T21:42:57.042Z Has data issue: false hasContentIssue false
  • English
  • Français

Netherlands fisheries in a European and international legal context*

Published online by Cambridge University Press:  07 July 2009

Erik Jaap Molenaar
Get access

Extract

The Netherlands' special relationship with the sea is widely known. For instance due to the prominent role of its merchant and naval fleet in particularly the 17th and 18th centuries or due to Hugo de Groot, one of the founding fathers of modern international law in general and the international law of the sea in particular. In present times the Netherlands no longer ranks among the main players in marine issues. As regards marine capture fisheries, the quantitative involvement of the Netherlands is still fairly sizeable in a European context, but not very significant on a global scale. This does not mean, however, that the involvement of the Netherlands in marine capture fisheries is a purely domestic affair. Fishing vessels flying the Netherlands flag do not just operate within the maritime zones of the Netherlands or other Member States of the European Union (EU) but also on the high seas and within the maritime zones of non-EU Member States. Also, Netherlands companies and individuals have (beneficial) ownership of vessels under foreign flag.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 33 , December 2002 , pp. 119 - 170
Copyright
Copyright © T.M.C. Asser Press 2002

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 UNTS 396; Trb. 1983 No. 83; <www.un.org/Depts/los>.

2. Art. 56(1)(a) of the LOS Convention.

3. Art. 116 of the LOS Convention.

4. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 December 1995. In force 11 December 2001, 34 ILM (1995) 1542; Trb. 1976 No. 279; <www.un.org/Depts/los>.

5. E.g., Arts. 63–67, 166(b) and 117–118 of the LOS Convention and Arts. 5, 7(a) and (b) and 8 of the 1995 Fish Stocks Agreement.

6. The implications of the recently concluded 2003 Treaty of Accession (Treaty of Accession to the European Union, Athens, 16 April 2003 (text at <europa.eu.int/comm/enlargement>)), which allows ten states to become EU Member States, will not be examined in this article. The ten prospective EU Members are: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.

7. For a historical background see Koers, A.W., ‘The Netherlands and International Fisheries Law’, in van Panhuys, H.F. et al. , eds., International Law in the Netherlands (Alphen a/d Rijn, Sijthoff & Noordhoff 1978) pp. 315–331.Google Scholar

8. The acronym RFOs is meant to encompass a broad range of inter-governmental organizations related to fisheries that either perform management functions, (scientific) advisory roles or strive for development cooperation. RFMOs encompasses a smaller group of organisations that are charged with management functions.

9. See the Preamble to the Statute for the Kingdom of the Netherlands, of 28 October 1954 [Statuut voor het Koninkrijk der Nederlanden] Stb. 1954 No. 503, as amended.

10. Treaty establishing the European Economic Community, Rome, 25 March 1957. In force 1 January 1958, consolidated version at <europe.eu.int/eur-lex>. The EC Treaty has, inter alia, been amended by the 1986 Single European Act, the 1992 EU Treaty, the 1997 Amsterdam Treaty and the 2001 Treaty of Nice.

11. Art. 299(1) and Annex II to the EC Treaty. See also the definition of ‘Community waters’ in Art. 3(a) of Reg. No. 2371/2002, infra n. 49, reproduced in full at infra n. 52. Note that the new Netherlands coalition government's Statement of Policy [Regeerakkoord] of 16 May 2003 contains a commitment to ensure that the Netherlands Antilles and Aruba will obtain a status under Art. 299(2) of the EC Treaty (at p. 10).

12. See, inter alia, Molenaar, E.J., ‘Marine Fisheries in the Netherlands Antilles and Aruba in the Context of International Law’, 18 International Journal of Marine and Coastal Law (2003) pp. 127–144.Google Scholar

13. This implies that two other components of the CFP – the common structural policy and the common market organisation – are also not examined.

14. Cf., the EC declaration upon formal confirmation of the LOS Convention (available at <www.un.org/Depts/los>). For a discussion on enforcement see Berg, A., Implementing and Enforcing European Fisheries Law. The Implementation and the Enforcement of the Common Fisheries Policy in the Netherlands and in the United Kingdom (The Hague, Kluwer Law International 1999)Google Scholar; and Long, R.J. and Curran, P.A., Enforcing the Common Fisheries Policy (Oxford, Blackwell 2000).CrossRefGoogle Scholar

15. Note for instance the differences between the declaration mentioned in n. 14 and the EC declaration upon signature of the 1995 Fish Stocks Agreement (available at <www.un.org/Depts/los>). See Churchill, R.R., ‘The European Community and its Role in Some Issues of International Fisheries Law’, in Hey, E., ed., Developments in International Fisheries Law (The Hague, Kluwer Law International 1999), pp. 533–573, at pp. 538–540 and 556–558Google Scholar on disagreements on competence in relation to the 1995 Fish Stocks Agreement and the 1993 FAO Compliance Agreement (infra n. 121). See also Chapter V of Reg. No. 2371/2002, infra n. 49, which indicates that the enforcement competence of the EU is expanding.

16. Art. 3 of the LOS Convention.

17. Arts. 1 and 2 of the Act on the Limits of the Netherlands Territorial Sea, of 9 January 1985 [Wet grenzen Nederlandse territoriale zee] Stb. 1985 No. 129. For more information on the Netherlands maritime zones and baselines see Dotinga, H.M. and Soons, A.H.A., ‘The Netherlands and the Law of the Sea’, in Treves, T. and Pineschi, L., eds., The Law of the Sea. The European Union and its Member States, (The Hague, Martinus Nijhoff Publishers 1997) pp. 365–426.Google Scholar

18. Art. 2(2) of the 1985 Act, supra n. 17. The dividing-line between the territorial sea and internal waters is a straight line. The Netherlands argues that these are not straight baselines within the meaning of Arts. 7, 9 or 10 of the LOS Convention as they have no effect on the outer limit of the territorial sea (cf., Dotinga and Soons, loc. cit. n. 17, at p. 368; see also Parliamentary Papers, Second Chamber, 1982–1983, 17654, Nos. 1–3, p. 9). It is nevertheless submitted that these straight lines are not inconsistent with the LOS Convention, if only because the Netherlands would also have been entitled to the more advantageous method of drawing straight baselines. See also infra n. 84.

19. Arts. 55, 56 and, in contradistinction, 77(3) of the LOS Convention.

20. Art. 57 of the LOS Convention.

21. Authorization Act Establishment Fishery Zone, of 8 June 1977 [Machtigingswet instelling visserijzone] Stb. 1977 No. 345. The FZ was effectively established on 25 December 1977; (Executive Decree pursuant to Article 1 Authorization Act Establishment Fishery Zone, of 23 November 1977 [Uitvoeringsbesluit ex artikel I Machtigingswet instelling visserijzone] Stb. 1977 No. 665).

22. OJ 1981, C 105/1.

23. Art. 2 of the 1977 Act, supra n. 21, in conjunction with Art. 1 of the 1977 Executive Decree, supra n. 21.

24. Art. 55 of the LOS Convention.

25. Art. 1(1) of the Kingdom Act Establishment Exclusive Economic Zone, of 27 May 1999 [Rijkswet instelling exclusieve economische zone] Stb. 1999 No. 281. The entry into force of this Act, and thereby the effective establishment of the Netherlands EEZ, took place on 28 April 2000 (Decree Limits Netherlands Exclusive Economic Zone, of 13 March 2000 [Besluit grenzen Nederlandse exclusieve economische zone] Stb. 2000 No. 167).

26. Art. 1(2) of the 1999 Kingdom Act, supra n. 25.

27. Cf., the depiction of the Netherlands in the Table Containing the Summary of National Claims to Maritime Zones at <www.un.org/Depts/los>. The Netherlands is not unique in this respect. For example, Australia has an EEZ but also an Australian Fishery Zone (AFZ), which it uses in the context of fisheries.

27a. See info at <www.un.org/depts/los>.

28. Act of 30 May 1963, Stb. 1963 No. 312, as amended.

29. Supra n. 21.

30. Supra n. 17.

31. The 1970 Decree Designation Sea Area and Coastal Waters, of 21 April 1970 [Besluit aanwijzing zeegebied en kustwateren 1970] Stb. 1970 No. 176, as amended.

32. Cf., the Judgment of the Court of Appeal in The Hague (economic chamber for criminal cases), on 15 November 1996 (Roll No. 2200105495, Parket No. 1009338594). This concerns the Zeegat van Goeree, the Brouwershavense Gat and the Eastern Scheldt (Art. 2(3), (4) and (5) of the 1970 Decree, supra n. 31. See also Molenaar, E.J., ‘Zeegat van Goeree. Rariteit binnen Nederlandse Visserijwetgeving’, [Goeree Passage. Curiosity within Netherlands’ Fisheries Legislation], 74 NJB (1999) pp. 550–553Google Scholar; 32 NYIL (2001) pp. 318–321.

33. Regulation Establishment 12-Mile Zone, of 23 August 1983 [Regeling instelling 12-mijlszone]; Stc. 1983 No. 165).

34. Fifth Policy Document on Spatial Planning [Vijfde Nota voor de Ruimtelijke Ordering], Part 1: National Spatial Policy [Nationaal ruimtelijk beleid] (The Hague, Sdu 2000) at p. 129.Google Scholar

35. See Quality Status Report 2000. Region II. Greater North Sea; available at <www.ospar.org>

36. See the info at <www.edc.uri.edu/Ime>. The North Sea is listed as LME #22.

37. OSPAR QSR Greater North Sea 2000, supra n. 35, at p. 90.

38. See the info on ‘TACs and quotas’ at <europa.eu.int/comm/dgs/fisheries/index_en.htm> and <www.pvis.nl> (the latter in Dutch only).

39. See Evaluation Fisheries Agreements concluded by the European Community, IFREMER, August 1999, available at <europa.eu.int/comm/fisheries>, at p. 29.

40. See Arts. 68 and 77(4) of the LOS Convention.

41. Art. 77(4) of the LOS Convention defines sedentary species as ‘organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil’.

42. For info see <home.planet.nl/~camphuys/Cetacea.html>.

43. Arts. 2(1), 56(1)(a) and 77 of the LOS Convention.

44. See Arts. 62 and 69–71 of the LOS Convention.

45. Art. 5(1) of the 1963 Fisheries Act. In the other maritime zones, fishing is only permitted under license, which could in theory be applied for by foreigners. See Arts. 7(2) and 10(2).

46. Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, London, 18 November 1980. In force 17 March 1982, 1285 UNTS 129; <www.neafc.org>.

47. Cf., Simmonds, K.R., ‘The European Economic Community and the New Law of the Sea’, 218 Recueil des Cours de l'Académie de Droit International No. VI (1989) pp. 9–166, at 41–43.Google Scholar

48. See supra n. 22.

49. OJ 2002, L 358/59. See also COM(2002) 185 final, Proposal for a Council Regulation on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy. The previous two CFP framework regulations were EEC Council Regulation No. 170/83 and EEC Council Regulation No. 3760/92.

50. Arts. 3(1)(c) and 12 of the EC Treaty. See Churchill, R.R., EEC Fisheries Law (Dordrecht, Martinus Nijhoff Publishers 1987) at pp. 124–132.Google Scholar

51. Cf., Art. 17(1) of Reg. No. 2371/2002, supra n. 49.

52. Cf., Art. 3(a) of Reg. No. 2371/2002, supra n. 49.

53. OJ 1985, L 302/23 (Arts. 156–164 (Spain); Arts. 347–353 (Portugal)); OJ 1994, C 241/21 (Arts. 89–95 (Finland); Arts. 116–122 (Sweden)).

54. Cf., Art. 17(2) of Reg. No. 2371/2002, supra n. 49.

55. See COM(2002) 181 final, Communication from the Commission on the reform of the Common Fisheries Policy (‘Roadmap’) (text at <europa.eu.int/eur-lex>), at pp. 12–13.

56. See Simmonds, loc. cit. n. 47, at p. 45.

57. Art. 19(1) of COM(2002) 185 final, supra n. 49, stipulated that the review of access rules would not concern the 12 nm zone.

58. See COM(2001) 135 final, Green Paper: On the Future of the Common Fisheries Policy, (text at <europa.eu.int/eur-lex>), at p. 24.

59. Parliamentary Papers, Second Chamber 1998–1999, 26737, No. 1, p. 12.

60. Art. 18(1) of Reg. No. 2371/2002, supra n. 49.

61. See Art. 29 of Council Regulation (EC) No. 850/1998, of 30 March 1998 ‘for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms’, as corrected (consolidated text at <europa.eu.int/eur-lex>) which contains the so-called ‘plaice-box’.

62. Art. 20(5) of Reg. No. 2371/2002, supra n. 49.

63. See also subsection 6.3.

64. Art. 20(3) of Reg. No. 2371/2002, supra n. 49.

65. On Netherlands practice see Van der Schans, J.W., Governance of Marine Resources, Conceptual Clarifications and Two Case Studies (Delft, Eburon 2001), in particular pp. 326–392Google Scholar. A 1997 European Parliament Report proposed that ‘the distribution of TACs should be rationalised by allocating fishing rights amongst fishermen, taking the principle of relative stability as the point of departure’ and ‘the possible transferability of fishing rights should be examined’ (Report on the Common Fisheries Policy after the year 2002, Committee on Fisheries, Doc. PE 220.887/fin, of 2 October 1997, at pp. 9 and 23–24).

66. On this topic and its relation with the notion of relative stability see, inter alia, Morin, M., ‘The Fisheries Resources in the European Union. The Distribution of TACs: the Principle of Relative Stability and Quota-Hopping’, 24 Marine Policy (2000) pp. 265–273CrossRefGoogle Scholar. The Factortame case before the Court of Justice of the European Community is in this respect a landmark-decision (The Queen v. Secretary of Slate for Transport, ex parte: Factortame e.a.; case C-221/89, ECR 1991, p. 3905).

67. See subsection 5.1.

68. See supra n. 22.

69. Cf., Hatcher, A., Frere, J., Pascoe, S. and Robinson, K., ‘“Quota-hopping” and the Foreign Ownership of UK Fishing Vessels’, 26 Marine Policy (2002) at p. 2.CrossRefGoogle Scholar

70. Art. 20(1) of Reg. No. 2371/2002, supra n. 49.

71. See the CFP Roadmap, supra n. 55, at pp. 13 and 23 and COM(2002) 185 final, supra n. 49, p. 5. See also the proposal made in the 1997 European Parliament Report, supra n. 65.

72. The ICCAT Criteria for the Allocation of Fishing Possibilities were adopted in November 2001 (text available at <www.iccat.es>, under ‘Management’).

73. Art. 20(4) of Reg. No. 2371/2002, supra n. 49.

74. See Art. 12(i) of Council Regulation (EC) No. 2341/2002 of 20 December 2002 fixing for 2003 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2002, L 356/12).

75. See Churchill, op. cit. n. 50, at p. 177 and 180. An exception exists for the French Department of Guyana (see Art. 12(iv) of EC Council Regulation No. 2555/2001, supra n. 74).

76. The Hague, 3 February 1958. In force 1 November 1960, 381 UNTS 165; Trb. 1958 No. 18.

77. The English translation of the Treaty referred to in supra n. 76 uses ‘inland waterways’ instead. The Dutch and the French texts, which use binnenwateren (Trb. 1958 No. 18) and les eaux intérieures respectively, indicate that ‘internal waters’ were meant.

78. The term ‘territories’ excludes areas in which coastal states have sovereign rights.

79. See supra n. 18. This right is based on the treaties ensuing from the separation of Belgium from the Netherlands in 1839, in particular on Art. IX(6) of the Annex to the Treaties of 1839 (inter alia, London, 19 April 1839; British and Foreign State Papers 1838–1839, p. 990Google Scholar) and on the ‘Regulations on Fishing in the Scheldt attached to the Convention between the Netherlands and Belgium of 1843’ (Antwerp, 20 May 1843 (Reglement ter uitvoering van artikel 9 van het Traktaat van 19 April 1839, betreffende de uitoefening van het regt der visscherij en van den vischhandel)Google Scholar). See, inter alia, L.J. Bouchez, ‘The Netherlands and the Law of International Rivers’, in Van Panhuys et al., op. cit. n. 7, pp. 215–288, at p. 258; and the info (in Dutch) at <www.scheldenet.nl>.

80. Koers, loc. cit. n. 7, at p. 319 does not mention Luxembourg nationals.

81. Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany concerning Arrangements for Cooperation in the Ems Estuary, The Hague, 8 April 1960. In force 1 August 1963, 509 UNTS 64. The Dutch and German texts of the treaty are equally authentic (for both texts see Trb. 1960 No. 67).

82. While Germany claims the entire area on the basis of historic title, the Netherlands holds that the thalweg of the principal channels forms the boundary (see Dotinga and Soons, loc. cit. n. 17, at p. 403 and R. Wolfram, ‘Germany and the Law of the Sea’, in Treves and Pineschi, eds., op. cit. n. 17, pp. 199–224, at pp. 205–208). For a map of the disputed area see the Annex to the Frontier Treaty, infra n. 213. Art. 46(1) of the Treaty provides that the Treaty does not affect the outstanding issue of the boundary. The ‘line’ established by Art. 1 of the Supplementary Agreement to the Ems-Dollard Treaty (Bennekom, 14 May 1962. In force 1 August 1963, 509 UNTS 140; Trb. 1962 No. 54) was only agreed to for the purpose of the exploitation of non-living resources. By way of the Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany concerning the Lateral Delimitation of the Continental Shelf in the Vicinity of the Coast (Bonn, 1 December 1964. In force 18 September 1965, 550 UNTS 128; Trb. 1964 No. 184), the two states agreed on a lateral delimitation of their continental shelves, by means of a seaward extension of the ‘line’ mentioned above (Art. 1). The 1964 Treaty does not affect the course of the international frontier in the Ems Estuary (Art. 2). Despite these instruments, agreement has yet to be reached on the lateral delimitation of the territorial sea.

83. See the Explanatory Note to the 1985 Act, supra n. 17; and Parliamentary Papers, Second Chamber, 1982–1983, 17654, Nos. 1–3, p. 9).

84. Art. 3(2) of the 1985 Act, supra n. 17, lays down a dividing-line for the Netherlands territorial sea and internal waters. This line ‘crosses’ the Ems Estuary, connecting the Islands of Rottumeroog (the Netherlands) and Borkum (Germany). This line is not intended as a straight baseline pursuant to Arts. 7, 9 or 10 of the LOS Convention. Whether the line would be consistent with these particular provisions or with international law in general, goes beyond the scope of this article. Wolfrum, op. cit. n. 82, at p. 206 takes the view that the line violates the historic title of Germany.

85. See, inter alia, Art. 41(3) of the Ems-Dollard Treaty.

86. See the 1998 Decree registration fishing vessels, 17 February 1998, [Besluit registratie vissersvaartuigen] Stb. 1998 No. 61).

87. See Arts. 299 and 300 and Annex II of the EC Treaty.

87a. Spain has nevertheless issued Royal Decree 1315/1977, of 1 August 1997, establishing a Fisheries Protection Zone in the Mediterranean Sea (text at <www.un.org/depts/los>).

88. See COM(2002) 535 final, of 9 October 2002, Communication from the Commission to the Council and the European Parliament laying down a Community Action Plan for the conservation and sustainable exploitation of fisheries resources in the Mediterranean Sea under the Common Fisheries Policy.

89. Denmark (6–12 nm and 4–12 nm; specific species; specific locations), France (6–12 nm; all species, specific locations), Germany (3–12 nm; demersal species, shrimps and prawns; North Sea coast), Ireland (6–12 nm; herring, mackerel; specific locations) and the United Kingdom (6–12 nm; herring; specific locations). See Annex I to Reg. No. 2371/2002, supra n. 49.

90. Art. 18 and Annex II to Reg. No. 2371/2002, supra n. 49.

91. Arts. 6(1) and 6bis of the Royal Decree establishing Additional National Measures for the Conservation and Management of Fish Stocks and Control of Fishing Activities [Koninklijk besluit tot vaststelling van aanvullende nationale maatregelen voor de instandhouding en het beheer van de visbestanden en voor controle op de visserijactiviteiten]; 14 August 1989, as amended; consolidated version at <www.just.fgov.be> (in Dutch, French and German).

92. See Art. 1(1) of Reg. No. 2371/2002, supra n. 49.

93. This is, inter alia, evident in the words ‘certain’ and ‘where catch limitations are required’ in the title to Reg. No. 2341/2002, supra n. 74.

94. Chapter V of Reg. No. 2371/2002, supra n. 49.

95. See ‘Facts and Figures on the CFP, 2001’ and ‘TACs and quotas 2003’; both at <europa.eu.int/comm/fisheries>.

96. See <www.pfa-frozenfish.com>.

97. Information kindly provided by R. Banning, PFA-secretariat, 23 September 2002.

98. See Hatcher et al., loc. cit. n. 69, at pp. 1, 6 and 8.

99. Ibid., at p. 1.

100. The latter includes subsidised joint ventures that use vessels formerly flagged in EU Member States.

101. See Reg. No. 2341/2002, supra n. 74.

102. Agreement between the European Economic Community and the Government of the People's Republic of Angola on fishing off Angola, 30 April 1987 (OJ 1987, L 341/2) and the 2002 Protocol thereto (Council Decision 2002/1008/EC of 9 December 2002 (OJ 2002, L 351/90; see Art. 2) and Council Regulation (EC) No. 2345/2002 of 16 December 2002 (OJ 2002, L 351/1)).

103. Agreement on cooperation in the sea fisheries sector between the European Community and the Islamic Republic of Mauritania, 20 June 1996 (OJ 1996, L 334/20); and the 2001 Protocol thereto (Council Regulation (EC) No. 2528/2001, OJ 2001, L 341/1).

104. Information provided by R. Banning, PFA-secretariat, May 2003. If the access agreement would relate to the maritime zones off the coast of Western Sahara, and this seems likely in view of the type of fisheries that the PFA is generally engaged in, this may not be compatible with the principle that Non-Self-Governing Territories have permanent sovereignty over their natural resources (see UN Doc. S/2002/161, Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council).

105. With the Falkland Islands from 1988–1990, with Morocco between 2000–2001, and with Namibia between 1994–1996. Information provided by R. Banning, PFA-secretariat, 23 September 2002. Worth observing is the European Commission's perception of the disadvantages of private access agreements in comparison with public access agreements (Cf., COM(2002) 637 final, supra n. 137, at pp. 5–6).

106. See the DG Fisheries Press Release of 4 July 2002 at <europa.eu.int/comm/fisheries>.

107. Ibid.

108. See supra n. 22 and Churchill, op. cit. n. 50, at p. 169. See also Art. 133(3) of the EC Treaty, which contains an express basis for treaty-making in relation to trade in fishery products.

109. See Art. 1(2)(h) of Reg. No. 2371/2002, supra n. 49.

110. Cf., Churchill, op. cit. n. 50, at p. 174.

111. Art. 300(1) of the EC Treaty.

112. Art. 300(3) of the EC Treaty.

113. 22 May 2001, The Hague. On file with author. On 1 July 2003, the name of the Ministry of Agriculture, Nature Conservation and Fisheries was changed into Ministry of Agriculture, Nature and Food Quality.

114. See Arts. 2–4 of the 1996 EC-Mauritania Fisheries Agreement, supra n. 103, and Art. 177 of the EC Treaty. See also Acheampong, A., ‘Coherence Between EU Fisheries Agreements and EU Development Cooperation: The Case of West Africa’, ECDPM Working Paper No. 52 (Maastricht, ECDPM 1997Google Scholar; also available at <www.oneworld.org/ecdpm/pubs/wp52_gb.htm>).

115. E.g., the 2000 Cotonou Agreement, supra n. 133.

116. This is admitted in the European Commission Communication 2003/C 47/06, n. 140, at section 3.4.2.

117. Rome, 31 October 1995, <www.fao.org/fi>.

118. See e.g., Kaczynski, V.M. and Fluharty, D.L., ‘European Policies in West Africa: Who Benefits from Fisheries Agreements?’, 26 Marine Policy (2002) pp. 75–93 at 77 and 89CrossRefGoogle Scholar; and Gorez, B. and O'Riordan, B., A Report on the Future of the European Union-ACP Countries Fisheries Relations, Final Report, February 2003 (on file with author), at p. 61.Google Scholar

119. Within the meaning of Art. 63(1) of the LOS Convention.

120. See Art. 62(2) of the LOS Convention.

121. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome, 24 November 1993. In force 24 April 2003, 33 ILM (1994) 969; <www.fao.org/legal>.

122. E.g., Arts. 5, 6.3 and 11.2.7–11.2.8. It is worth noting that the Preamble to the EC-Mauritania agreement refers to the FAO Code of Conduct.

123. San Francisco, 26 June 1945. In force 24 October 1945, 1 UNTS xvi. See Art. 55, Trb. 1945 No. F321.

124. Rio Declaration on Environment and Development, Rio de Janeiro, 13 June 1992. 31 ILM (1992) p. 876; <www.unep.org>. See Principles 6–8.

125. See the 1st paragraph of the Preamble to the Agreement Establishing the World Trade Organization, Marrakesh, 15 April 1994. Text at <www.wto.org>; Trb. 1996 No. 325.

126. Johannesburg, 4 September 2002. Doc. A/CONF.199/20; <www.johannesburgsummit.org>. See Arts. 30(g) and 31(a) and (g).

127. See Acheampong, op. cit. n. 114.

128. Kaczynski and Fluharty, loc. cit. n. 118, at pp. 91–92.

129. See Gorez and O'Riordan, op. cit. n. 118, in general. On pp. 13–14 they also point to the current division of EU Member States in a southern European ‘Friends of Fishing’ camp and a northern European ‘Friends of Fish’ camp. Interestingly, the Netherlands is place in the latter camp despite its major stake in distant water fishing.

130. Conclusions of the Council of 30 October 1997 (Doc. 11784/97 of 4 November 1997).

131. Idem., para. 3.

132. Evaluation of the Fishery Agreements concluded by the European Community. Summary Report, (IFREMER: 1999Google Scholar), text at <europa.eu.int/comm/dgs/fisheries/index_en.htm>. Note, however, that the aspect of sustainable fishing does not feature prominently in the tender (No. 97/S 240–152919).

133. Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and its Member States, of the Other Part, Cotonou, 23 June 2000. In force 1 April 2003, text at Trb. 2001 No. 57; <europa.eu.int/comm/development>.

134. Art. 32 of the Agreement, supra n. 133. Arts. 23(d), 32(c)(i) and 53 relate directly to fisheries. The Lomé IV Convention still had a separate Title III (Development of fisheries; Arts. 58–68).

135. Council Resolution on fisheries and poverty reduction, of 8 November 2001 (Doc. No. 13938/01 of 14 November 2001).

136. See Arts. 1 and 2 of Reg. No. 2371/2002, supra n. 49. This was already proposed in a 1997 European Parliament Report, supra n. 65, at p. 9

137. COM(2002) 637 final, of 23 December 2002, Communication from the Commission on an integrated framework for fisheries partnership agreements with third countries.

138. See O'Riordan, B., ‘Fisheries Partnership Agreements. Goodbye to Irresponsible Fishing?’, 34 Samudra (2003) pp. 13–19Google Scholar; available at <www.icsf.net>.

139. Roadmap, supra n. 55, at p. 17.

140. 2003/C 47/06, OJ 2003, C 47/5.

141. See, inter alia, sections 6.2 and 7.

142. See sections 3.4, 3.4.2 and 4.2.4. section 3.4 also mentions the commitment under Art. 12.18 of the FAO Code of Conduct.

143. See supra n. 94.

144. See preambular para. (4) of Council Regulation (EC) No. 2792/1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector, as amended by Council Regulation (EC) No. 2369/2002 of 20 December 2002.

145. Communication from the Commission (COM(2002) 180 final, of 28 May 2002; available at <europe.eu.int/eur-lex>).

146. Adopted by consensus by FAO's Committee on Fisheries on 2 March 2001 and endorsed by the FAO Council on 23 June 2001; text available at <www.fao.org/fi>).

147. See Actions 1–4 and 15.

148. Cf., Kaczynski and Fluharty, loc. cit. n. 118, at p. 90.

149. The Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (Port Moresby, 2 April 1987) has recently been extended with another ten year period, starting on 15 June 2003 (for info and text of the amended treaty see <www.affa.gov.au> and <www.ffa.int>).

150. Note, however, that Art. 10(3) of the 2001 Protocol on Fisheries (Blantyre, 14 August 2001. Not in force, <www.sadc.int>) to the SADC Treaty (Treaty establishing the Southern African Development Community, Windhoek, 17 August 1992. In force; <www.sadc.int>) contemplates the ‘joint negotiation of foreign fishing access agreements with a regional or sub-regional dimension’.

151. See supra n. 132.

152. Evaluation EU Fisheries Agreements; Netherlands View with regard to New Guidelines [Evaluatie EU Visserijovereenkomsten; Nederlandse Visie met betrekking tot Nieuwe Beleidsrichtlijnen]; Version 4, 6 October 2000.

153. The first meeting of the FAO Working Group took place in March 2001 and the second in April 2002.

154. The main groups of species defined as sardine, sardinellas, horse mackerels and mackerel.

155. Opened for signature and entered into force on 16 October 1945; Stb. 1945 No. I 77; <www.fao.org/Legal>. As a consequence of its signature on 16 October 1945 and pursuant to Art. XXI of the constitution the Kingdom became a party to the FAO Constitution on behalf of the Netherlands exclusively. This adherence was formally confirmed on 13 October 1947 (Trb. 1964 No. 103). The Working Group is funded by Norway (50%), Netherlands (25%) and FAO (25%).

156. Report of the Workshop on the Management of Shared Small Pelagic Fishery Resources in Northwest Africa (FAO Fisheries Reports No. R675; FAO, Rome: 2002). See pp. 7 and 13 and Appendix III.

157. These instances are intended (Cf., COM (2002) 185 final, supra n. 49, at p. 4) to replace the more or less similar ones in Arts. 45 and 46 of Reg. No. 850/98, supra n. 61, even though the latter could at the time of writing still be invoked. In case a regional advisory council would be established for the North Sea pursuant to Art. 31 of Reg. No. 2371/2002, supra n. 49, this will, in view of its composition (see paras. (2) and (3)) and its functions, in principle not increase the residual competence of the Netherlands.

158. Arts. 1(1) and 3(b) of Reg. No. 2371/2002, supra n. 49.

159. See COM (2002) 185 final, supra n. 49, at p. 2.

160. See supra n. 93 and accompanying text.

161. See paras. 3.3 and 3.4.

162. See, inter alia, Molenaar, E.J., ‘The South Tasman Rise Arrangement of 2000 and Other Initiatives on Management and Conservation of Orange Roughy’, 16 International Journal of Marine and Coastal Law (2001) pp. 77–124.Google Scholar

163. This is the Sea Days Regulation [Zeedagenregeling].

164. See the Policy Decree Shell Fishery Coastal Waters 1999–2003 [Beleidsbesluit Schelpdiervisserij Kustwateren 1999–2003] at <www.minlnv.nl>(in Dutch), at p. 6, which formulates as policy objectives for the coastal fishery in the Wadden Sea and Eastern Scheldt: (a) conservation and recovery of natural biotopes and (b) avoidance of food shortage for birds as a consequence of shellfisheries. See also the Decision Determination Food Reservation Eastern Scheldt [Besluit vaststellen voedselreservering Oosterschelde] TRC 2000/10817, of 16 November 2000 (at <www.minlnv.nl> (Dutch).

165. Policy Shellfisheries North Sea Coastal Zone [Beleidslijn schelpdiervisserij Noordzee kustzone] of 20 December 2002; No. TRC 2002/10920; at <www.minlnv.nl> (Dutch)).

166. See the Decision of the Netherlands Competition Authority [Nederlandse Mededingingsautoriteit] of 14 January 2003 in case 2269 (No. 2269/326; text at <www.minlnv.nl> (Dutch)).

167. See supra n. 159 and accompanying text.

168. See Reg. No. 348/81 (import of whales), Reg. No. 338/97 (trade in endangered species), 338/97/EC and Council Directive No. 83/129 (import skins of certain seal pups); all amended. See, however, Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended (consolidated version at <europa.eu.int/eur-lex>) which, inter alia, applies to whales (see Annex IV) and COM (2003) 451 final, of 24 July 2003, Proposal for a Council Regulation laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No. 88/98.

169. Arts. 56(1)(a) and 65. Such competence is presumed to exist within areas under its sovereignty.

170. Act of 28 September 1960 [Wet op de Wahisvangst] Stb. 1960 No. 410, as amended.

171. Art. 2(3).

172. Sb. 1998 No. 402. See Art. 4(1)(a).

173. See Arts. 9–18.

174. For some general comments on the scope of application of Netherlands law see supra n. 199 and accompanying text.

175. See the Regulation Designating Fish, Crustaceans and Shellfish, of 29 December 1982 [Regeling aanwijzing vissen, schaal- en schelpdieren] Sbt. 1982 No. 253, as amended).

176. International Convention for the Regulation of Whaling, Washington DC, 2 December 1946. In force 10 November 1948, 161 UNTS 72; Stb. I 534; <www.iwcoffice.org>. The Kingdom acceded to the Convention on behalf of the Netherlands on 14 June 1977 (Trb. 1977 No. 103), on behalf of the Netherlands Antilles on 16 February 1982 (Trb. 1982 No. 30 and 90) and on behalf of Aruba on 1 January 1986 (Trb. 1986 No. 71 or 1987 No. 70).

177. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, DC, 3 March 1973. In force 1 July 1975, 993 UNTS 243; Trb. 1975 No. 23 <www.cites.org>. The Kingdom became a party on behalf of the entire Kingdom on 19 April 1984 (Trb. 1984 No. 47 and 1986 No. 1).

178. Convention on the Conservation of European Wildlife and Natural Habitats, Berne, 19 September 1979. In force 1 June 1982, Trb. 1979 No. 175; <www.nature.coe.int>. The Kingdom ratified on behalf of the Netherlands on 28 October 1980 (Trb. 1980 No. 60).

179. Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979. In force 1 November 1983, Trb. 1980 No. 145; <www.wcms.uk/cms>. The Convention was ratified for the entire Kingdom on 5 June 1981 (Trb. 1983 No. 151).

180. Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, New York, 17 March 1992. In force 29 March 1994, UNTS Reg. No. 30865; Trb. 1992 No. 137; <www.ascobans.org>. The Kingdom ratified on behalf of the Netherlands on 29 December 1992 (Trb. 1994 No. 114).

181. Agreement on the Conservation of Seals in the Wadden Sea, Bonn, 16 October 1990. In force 1 October 1991, Trb. 1990 No. 174; <http://cwss.www.de>. The Kingdom ratified on behalf of the Netherlands on 11 July 1991 (Trb. 1991 No. 136).

182. Cf., Seal Management Plan 2002–2006, at section 4, text at <http://cwss.www.de>. See also §§ 56–61 of the 1994 Leeuwarden Declaration, text at <http://cwss.www.de>.

183. Info at <http://cwss.www.de>.

184. Cf., the position taken in Parliamentary Papers, Second Chamber, 1999–2000, 27205, No. 3, pp. 5–6.

185. In view of the growing interest in shell fisheries, future licenses will only be granted if commercial fishing activity can be proven to have taken place before 1 January 1999 (Policy Decree Shell Fishery Coastal Waters 1999–2003, supra n. 164, at p. 13). See also infra n. 198.

186. Info kindly provided by Mr. J.M.M. Kouwenhoven, Ministry of Agriculture, Nature Management and Fisheries, July 2002. See also supra n. 91.

187. See Molenaar, E.J., ‘The Concept of “Real Interest’ and Other Aspects of Co-operation through Regional Fisheries Management Mechanisms’, 15 International Journal of Marine and Coastal Law (2000) pp. 475–531.CrossRefGoogle Scholar

188. See Arts. 2(1), 49, 56(1)(a)and 116 of the LOS Convention.

189. See Art. 6(2) of the 1989 Royal Decree, supra n. 91, which contains an exception for such vessels.

190. Art. 41(4) of the Ems-Dollard Treaty. Para. (3) stipulates that the right to fish shall cover fishing of every kind, except for mussel-fishing east of the eastern limit of the main fairway, which is reserved for German fishermen.

191. Cf., the Judgments rendered by the District Court of Groningen, on 2 March 2001 (case No. AWB 01/102 BESLU V03; text also at <www.rechtspraak.nl>, LJN No. AB0387 (in Dutch)) and on 17 May 2001 (case No. AWB 01/352 BESLU V06, AWB 01/353; text also at <www.rechtspraak.nl>, LJN No. AB1990 (in Dutch); see also JB (2001) No. 186).

192. Cf., inter alia, Art. 32(1) of the Ems-Dollard Treaty which determines that ‘with respect to the Ems Estuary’ a state's vessels ‘shall be deemed to be within’ that state's territory. Art. 35(1) stipulates that supervision in the common fishing area shall be exercised jointly, but that the inspectors of each state shall only be competent with respect to their own fishermen. An exception is made for certain enforcement measures where offenders are caught in the act (Art. 35(1) is a lex specialis to Art. 33(3); see also Art. 32(1) for vessels of third states). Although ‘fishermen’ is used instead of ‘vessels’, it seems logical to assume that the distribution of jurisdiction concerns both, even though enforcement at sea will first of all be guided by the vessel's flag.

193. The Antarctic Treaty, Washington DC, 1 December 1959. In force 23 June 1961, 402 UNTS 71; Trb. 1965 No. 148; <www.antdiv.gov.au>. See Art. IV. The Kingdom of the Netherlands acceded on behalf of the entire Kingdom on 30 March 1967 (Trb. 1967 No. 63 and 1968 No. 21). The Kingdom became an Antarctic Treaty Consultative Party on 19 November 1990.

194. Cf., Orrego Vicuña, F. ‘Port State Jurisdiction in Antarctica: A New Approach to Inspection, Control and Enforcement’ in Vidas, D., ed. Implementing the Environmental Protection Regime for the Antarctic (Dordrecht, Kluwer Academic Publishers 2000) pp. 45–69, at p. 48.CrossRefGoogle Scholar

195. Art. 2(1) of the 1970 Decree, supra n. 31. For the dividing-line see supra n. 84.

196. Cf., Art. 1(a) of the Decree Limitation Free Fishery Coastal Waters, of 28 December 1993 [Besluit beperking vrije visserij kustwateren] Stb. 1994 No. 43, which ensures that an obligation applies to ‘the Netherlands part of the Dollard and Ems’ (Cf., Art. 2(1) of the 1970 Decree, supra n. 31), but only ‘as far as designated as common fishing area pursuant to the Ems-Dollard Treaty’. This view is also supported by Judge Vermeulen in the Judgment of 2 March 2001, supra n. 191.

197. See Art. 4 and 11 of the Ministerial Decree Fishing Fishery Zone, Sea Area and Coastal Waters, of 29 December 1977 [Beschikking visserij visserijzone, zeegebied en kustwateren] Stb. 1977 No. 255, as amended and Art. 7(2)(a) of the 1963 Fisheries Act, supra n. 45.

198. Based on a policy laid down in the letter of 21 May 1992 (No. Viss. 924356) by the Ministry of Agriculture, Nature Conservation and Fisheries to the Permanent Commission on Fisheries of the Second Chamber of Parliament. This policy was upheld in a procedure before the section Administrative Adjudication of the Council of State (Judgment of 24 February 1997, No. H01.95.0214).

199. This presumption ensues directly from international law. Arts. 8 and 9 of the 1829 Act on General Provisions, of 15 May 1829 [Wet Algemene Bepalingen] Stb. 1829 No. 28, as amended and Art. 2 of the 1881 Penal Code, of 3 March 1881 [Wetboek van Strafrecht] Stb. 1881 No. 35, as amended are consistent therewith.

200. Art. 8 of the 1881 Act, supra n. 199, and Art. 13a of the 1829 Act, ibid.

201. In particular Art. 32(1) (see supra n. 192 and accompanying text).

202. See e.g., Parliamentary Papers, Second Chamber 1985–1986, 19343, No. 9, p. 8.

203. See in this context the solution incorporated in Art. 6(2) of the 1996 Protocol, infra n. 209. Note also the apparent discontent of the German representatives to Sub-Commission ‘G’ (see below in main text) in relation to another but similar Netherlands enactment (Report of the 11th Meeting of Sub-Commission ‘G’ (April 2001), at section 8 (text at <www.waddenzee.nl> (in Dutch and German)).

204. The event was noted in NRC Handelsblad (23 May 2001). The prohibition for Netherlands vessels is based on the Structuurnota Zee- en Kustvisserij [Structural Policy Document Marine and Coastal Fisheries] 1993. This happened despite a letter dated 26 April 2001 from G.H. Faber, Deputy Minister for Agriculture, Nature Management and Fisheries of the Netherlands, to U. Bartels, Minister of Ernährung, Landwirtschaft und Forsten of Lower Saxon.

205. Cf., the Report of the 4th Meeting of Sub-Commission ‘G’ (see below in main text; up until 1998 known as ‘H’) (November 1997), section 6.

206. See supra n. 168.

207. For info see <http://cwss.www.de> (also in English); in particular pars 4.1.17–4.1.18 of the 1997 Trilateral Wadden Sea Plan.

208. See the functions of the Commission in Art. 30 and note that Art. 41 on fisheries is incorporated in Chapter 9 ‘Special Provisions’. See Art. 30(e).

209. Supplementary Protocol to the Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany concerning Arrangements for Cooperation in the Ems Estuary (Ems-Dollard Treaty), concerning Arrangements for Cooperation on Water and Nature Management in the Ems Estuary, signed aboard the MS Warsteiner Admiral, 22 August 1996. In force 29 April 1998, Trb. 1996 No. 258.

210. Art. 1.

211. Treaty concerning the Course of the Common Frontier, the Boundary Waters, Real Property Situated Near the Frontier, Traffic Crossing the Frontier on Land and Via Inland Waters, and Other Frontier Questions, The Hague, 8 April 1960. In force 1 August 1963, 508 UNTS 148; Trb. 1960 No. 68. The Frontier Treaty and the Ems-Dollard Treaty are part of the General Treaty for the Settlement of Frontier Questions and Other Problems Outstanding Between the Two Countries, The Hague, 8 April 1960. In force 1 August 1963, 508 UNTS 20; Trb. 1960 No. 67.

212. Cf., the Report of the 13th Meeting of Sub-Commission ‘G’ (March 2002), at section 4 (text at <www.waddenzee.nl> (in Dutch and German)).

213. See the Report of the 14th Meeting of Sub-Commission ‘G’ (October 2002), at section 6 (text at <www.waddenzee.nl> (in Dutch and German)). The Hond/Paap was designated by the Netherlands within the context of the Habitats Directive by 20 May 2003. On 8 July 2003 the European Commission approved the designation of this area and the other areas designated by the Netherlands (info at <www.minlnv.nl/natura2000>).

214. See the Report of the 12th Meeting of Sub-Commission ‘G’ (October 2001) at section 5 (text at <www.waddenzee.nl> (in Dutch and German)).

215. See supra n. 9.

216. See, inter alia, the Preamble and Arts. 6(1) and 41.

217. Translation by the author.

218. See, inter alia, Arts. 7 and 13.

219. Cf., Soons, A.H.A., ‘Comments’, in Dekker, I.F. and Post, H.H.G., eds., On the Foundations and Sources of International Law (The Hague, T.M.C. Asser Press 2003) pp. 65–71, at p. 70.Google Scholar

220. Cf., Art. 11(3).

221. Cf., Art. 6(2).

222. In particular Arts. 3(1)(a) and (b) and 24–28. See also Art. 4(1) of the Draft articles on the Responsibility of States for Internationally Wrongful Acts (adopted by the International Law Commission in 2001. For text and commentaries see <www.un.org/law/ilc>).

223. See Molenaar, supra n. 12, at pp. 127–128. See also the ‘IUU Vessel Red List’ of April 2003 of the Antarctic and Southern Ocean Coalition (ASOC) which features two fishing vessels registered in the Netherlands Antilles (info at <www.asoc.org>).

224. E.g., the Charter of the United Nations.

225. Cf., Aust, A., Modern Treaty Law and Practice (Cambridge, Cambridge University Press 2000) pp. 165–166 and 168.Google Scholar

226. Some treaties may for instance allow dependent territories to be a separate (associated) member (e.g., the Netherlands Antilles and Aruba with respect to the World Meteorological Organization (info at <www.wmo.ch>).

227. The Netherlands deposited its instrument of ratification, in relation to the Kingdom in Europe exclusively, on 28 June 1996 (Stb. 1996 No. 357; <www.un.org/Depts/los>).

228. Act of 18 October 2001 (Stb. 2001 No. 535).

229. See Explanatory Note to the 2001 Act, infra n. 228, at p. 21 (Parliamentary Papers, Second Chamber 2000–2001, 27892 (R 1693) No. 3).

230. Pursuant to EU Council of Ministers Decision 10176/97 of 8 June 1998 and the EU. Since July 2003 all EU Member States and the EU were in a position to ratify the 1995 Fish Stocks Agreement simultaneously. However, when this was attempted, the depositary (the Secretary-General of the UN) took the view that the procedures in Art. 47(2) of the Agreement had not been fulfilled. At the time of writing, these procedures were in the process of being fulfilled.

231. The EU deposited its instrument of acceptance on 6 August 1996.

231a. As a consequence of the Kingdom's membership to the FAO (see n. 157) and die absence of objections to relevant FAO instruments.

232. See supra n. 255b and accompanying text.

233. Convention for the Conservation of Salmon in the North Atlantic Ocean, Reykjavik, 2 March 1982. In force 1 October 1983, 1338 UNTS 33; <www.nasco.int>. See Art. 1(1).

234. Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, supra n. 46. See Art. 1.

235. International Convention for the Conservation of Atlantic Tunas, Rio de Janeiro, 14 May 1966. In force 21 March 1969, UNTS No. 9587 (1969); <www.iccat.es>. See Art. I.

236. See Koers, op. cit n. 7, at p. 324.

237. See Churchill, op. cit. n. 50, at pp. 187–188. Denmark nevertheless became a Party on behalf of the Faroe Islands, and later also on behalf of Greenland (see below in main text).

238. Art. 1 of the NEAFC Convention. See also the ‘Coastal state process’ and the ‘two pillars’ as for example referred to in the Report of the 19th Annual NEAFC Meeting (2000), at pp. 9–12 and Annexes D and H (text at <www.neafc.org>).

239. The Netherlands firm Jaczon (info at <www.jaczon.nl>) has nevertheless a financial interest in some fishing vessels registered in the Seychelles that target tuna.

240. But see subsection 7.3 with regard to the Netherlands Antilles.

241. The concerns IBSFC (International Baltic Sea Fishery Commission), IOTC (Indian Ocean Tuna Commission) and NAFO (Northwest Atlantic Fisheries Organization). Note that the Netherlands has a small quota of redfish that can be caught in the NAFO Regulatory Area (see Reg. No. 2341/2002, supra n. 74, at p. 44).

242. Convention on the Conservation and Management of the Fishery Resources in the South East Atlantic Ocean, Windhoek, 20 April 2001. In force 13 April 2003; <www.oceanlaw.net> or <www.mfmr.gov.na/seafo/seafo.htm>.

243. E.g., in relation to the IATTC (Inter-American Tropical Tuna Commission). See info at <www.iattc.org>.

244. Fishery Committee for the Eastern Central Atlantic, Instituted by FAO Council Resolution 1/48 (June 1967).

245. Western Central Atlantic Fishery Commission. Established by FAO Council Resolution 4/61 (November 1973).

246. See e.g., the EC declaration upon formal confirmation of the LOS Convention (available at <www.un.org/Depts/los>). Spain and France also participate in WECAFC, even though they have no territories within its regulatory area. Note also that the 2000 Cotonou Agreement, supra n. 133, has been ratified by the EU as well as by the individual Member States.

247. Cf., FAO Doc. WECAFC/IX/99/5E, para. 2 of which does not refer to Aruba.

248. This is part of a broader review of FAO regional fishery bodies, as decided by the FAO Committee of Fisheries (COFI) at its Twenty-Second Session in 1997 (see FAO Fishery Report No. 562, par. 31).

249. General Fisheries Commission for the Mediterranean. See Art. II of the 1997 Agreement for the Establishment of the General Fisheries Commission for the Mediterranean (adopted by the FAO Council at its 113th Session in November 1997 but not yet in force at the time of writing (text at <www.oceanlaw.net>)) which provides for voting procedures that take account of the situation in which either the EU or its Member States or both have competence.

250. Information kindly provided by J. Spencer, European Commission, October 2002.

251. See e.g., the EC declaration upon formal confirmation of the LOS Convention (available at <www.un.org/Depts/los>).

252. The ICES Convention (Convention for the International Council for the Exploration of the Sea, Copenhagen, 12 September 1964. In force 22 July 1968, 7 ILM (1968) p. 302; Trb. 1966 No. 193: <www.ices.dk>) was ratified by the Kingdom on behalf of the Netherlands on 13 February 1967 (Trb. 1968 No. 43) and on behalf of Aruba on 1 January 1986 (Trb. 1989 No. 143).

253. Text at <www.caricom-fisheries.com>. See also Singh-Renton, S., Mahon, R. and McConney, P., ‘Small Caribbean (CARICOM) states get involved in management of shared large pelagic species’, 27 Marine Policy (2003) pp. 39–46.CrossRefGoogle Scholar

254. See the CRFM text at ‘Membership’.

255. See ‘Preparation for Expansion of Domestic Fisheries for Large Pelagic Species by CARICOM Countries’, (FAO TCP Project RLA/0070) Report of the First Workshop (2002), in particular at pp. 4 and 14–15. The Draft Report of the Second Workshop (held in February 2003) still showed uncertainty as to the most appropriate way forward (on file with author). This uncertainty remained after the First CRFM Forum Meeting in March 2003 (information provided by S. Singh-Renton, August 2003).

255a. See e.g. WECAFC – Report of the tenth session of the Western Central Atlantic Fishery Commission and of the seventh session of the Committee for the Development and Management of Fisheries in the Lesser Antilles, Bridgetown, Barbados, 24–27 October 2001 (FAO Fisheries Reports -R660), at Table 1(E), Appendix E and WECAFC – Report of the ninth session of the Western Central Atlantic Fishery Commission and of the sixth session of the Committee for the Development and Management of Fisheries in the Lesser Antilles, Castries, Saint Lucia, 27–30 September 1999 (FAO Fisheries Reports – R612; WECAFC/IX/99/5E), at par. 2, which both refer to the Netherlands Antilles on a similar footing as WECAFC members. Over the years the WECAFC Secretariat has established a pragmatic working relationship with the Netherlands Antilles and Aruba. For instance, certain technical communications or invitations to technical meetings or to WECAFC Commission meetings are sent directly to the appropriate government officials in the Netherlands Antilles and Aruba. This procedure was also followed for the Eleventh Session of the Commission which is scheduled to be held in Grenada from 21–24 October 2003 (information kindly provided by Mr. B. Chakalall, Secretary of WECAFC, on 12 August 2003).

256. See supra n. 11.

257. E.g., in relation to the ICCAT Convention by France on behalf of St-Pierre et Miquelon and by the United Kingdom on behalf of some or all of its overseas territories and dependencies.

258. See Molenaar, loc. cit. n. 12, at pp. 127–128.

259. See e.g., ICCAT Recommendation 02–17 which imposes bans on the import of Atlantic bigeye tuna and its products in any form from Bolivia.

260. See Press release (PR/12/02) of 8 July 2002, from the French Embassy in Canberra, Australia (text at <www.ambafrance-au.org>) and Molenaar, loc. cit. n. 12.

261. ICCAT Report of the biennial period 2002–03, Part I (2002), Vol. 1, p. 246.

262. See ICCAT Resolutions 94–6 and 01–17.

263. See supra n. 257.

264. See supra n. 262.

265. See Molenaar, loc. cit. n. 12, at pp. 140–142.

266. Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Ottawa, 24 October 1978. In force 1 January 1979, 1135 UNTS 369; <www.nafo.ca>.

267. As Denmark (on behalf of the Faroe Islands) was identified as a non-Contracting Party to the CCAMLR Convention with an interest in fishing or trade in Patagonian toothfish, it was invited to attend the 18th Meeting of CCAMLR in 1999 (see Doc. CCAMLR-XVIII, pars. 1.5, 2.10 and 16.2). Denmark did not attend the subsequent (19th) meeting, presumably because it was no longer engaged in relevant fishing or trade and/or no longer had an interest in becoming involved in the CCAMLR Convention.

268. Art. 299(6)(a) of the EC Treaty stipulates that the EC Treaty does not apply to the Faroe Islands.

269. Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980. In force 7 April 1982, 19 ILM 837 (1980); Trb. 1985 No. 78; <www.ccamlr.org>. See Arts. I(2), II(1) and (2) and VI.

270. The Kingdom acceded on 23 February 1990. The CCAMLR Convention entered into force for the entire Kingdom on 25 March 1990, in accordance with Article XXVIII(2) (Trb. 1990 No. 73).

271. The exclusive EU competence in fisheries is nevertheless mentioned as the main reason why the Netherlands is not a member of the ‘Krill-commission’ (Parliamentary Papers, Second Chamber, 1996–1997, 25211, No. 3, p. 15).

272. This also caused confusion within the CCAMLR Secretariat, which contacted the Embassy of the Kingdom of the Netherlands in Yarralumla, Australia for clarification (see CCAMLR Comm. Circ. 03/47 of 24 June 2003). While a representative of the Netherlands Antilles was sent an invitation to attend the XXIInd Annual CCAMLR Meeting (2003), no representative attended.

273. In view of Declaration No. 25 to the 1992 EU Treaty (Maastricht), the EU may interfere where the position or behaviour of an OCT jeopardises vital EU positions or interests, for instance those on combating IUU fishing.

274. Cf., Koers, loc. cit. n. 7, at pp. 326–328.

275. See supra n. 176.

276. Cf., Churchill, op. cit. n. 50, at p. 189.

277. See COM(92) 316 final, of 15 July 1992, Communication from the Commission to the Council concerning the conservation of whales within the framework of the International whaling Commission, which contains a draft Council Decision to give the Commission a negotiation man date.

278. See supra n. 168.

279. See supra nn. 180 and 181.

280. Cf., Art. 2 of ASCOBANS and Arts. III and VI(1) of the Wadden Sea Seals Agreement.

281. See, inter alia, Arts. 1.2(d), 6.2.1, 8.3.1, 8.3.2, 8.4 and 8.6.

282. Information obtained from <www.wcms.uk/cms>.

283. Information provided by R. Strempel, ASCOBANS on 24 July 2003.

284. See supra nn. 269 and 270.

285. See supra n. 193.

286. London, 1 June 1972. In force 11 March 1978, 11 ILM 251.

287. See supra n. 193.

288. See Molenaar, E.J., ‘CCAMLR and Southern Ocean Fisheries’, 16 International Journal of Marine and Coastal Law (2001) pp. 465–499 at pp. 490–497.CrossRefGoogle Scholar

289. Ibid.

289a. At the XXIInd Annual CCAMLR Meeting (2003), however, the treatment of the Portuguese vessel Santo Antero (Doc. CCAMLR-XXII (Preliminary Version of 12 November 2003), paras. 8.20(i) and 8.23–8.26) was questioned by several CCAMLR members along the same lines as in 1999 in relation to the Lugalpesca. The 1999 debate was not re-opened, however.

290. See supra n. 270.

291. See Part VI of the Rules of Procedure of the Commission (text at <www.ccamlr.org>).

292. This is also the rationale behind Art. 8(3) of the 1995 Fish Stocks Agreement.

293. See Docs. CCAMLR-XVI (1997), par. 11.5; Final Report of the XXI ATCM (1997), par. 161; CCAMLR-XVII (1998), par. 11.3 and CCAMLR-XXI (2002), par. 7.4.

294. See Doc. CCAMLR COMM CIRC 03/27, of 9 April 2003.

295. See Doc. CCAMLR COMM CIRC 03/31, of 24 April 2003. This document incorrectly refers to the Netherlands Antilles as a non-contracting party.

295a. See Doc. SCIC-03/16, ‘Provisional IUU Vessel List. Information from the Netherlands’.

295b. See Doc. CCAMLR-XXII, n. 289a, at paras 6.30, 8.20(ii) and 8.64.

296. These are Arts. XXI and XXII (as opposed to Art. IX(6)).

297. As CCAMLR found it necessary to adopt Resolution 14/XIX ‘Catch Documentation Scheme: Implementation by Acceding States and Non-Contracting Parties’, not all acceding parties share this view or act in accordance with it. Note that Bulgaria intended to ‘accept the conservation measures in force under CCAMLR and become a member of CCAMLR, should it resume harvesting activity’ (Doc. CCAMLR-XVII (1998), par. 11.3). Note also that although the first operative paragraph of ATCM Resolution 3(2002), which deals with cooperation by acceding parties, was mostly aimed at Canada, it would also be relevant to the Kingdom of the Netherlands.

298. In 2002 the Netherlands Ministry of Agriculture, Nature Conservation and Fisheries received a request from a Netherlands fishing company to explore fishing possibilities for krill in the CCAMLR Convention Area. The Ministry decided it was not politically opportune to submit this request to the European Commission as this would conflict with EU policy on fishing capacity (see also supra n. 144).

299. Cf., CCAMLR's Management of the Antarctic, in the Introduction section (text at <www.ccamlr.org>).