|II.||Substantive International Law - Second Part|
|2.||LAW OF THE SEA|
(Spain v. Canada)
Jurisdiction of the Court
Judgment of 4 December 1998
I.C.J. Reports 1998, p. 432
[p. 461-462] 70. According to international law, in order for a measure to be characterized as a "conservation and management measure", it is sufficient that its purpose is to conserve and manage living resources and that, to this end, it satisfies various technical requirements.
It is in this sense that the terms "conservation and management measures" have long been understood by States in the treaties which they conclude. Notably, this is the sense in which "conservation and management measures" is used in paragraph 4 of Article 62 of the 1982 United Nations Convention an the Law of the Sea (see also 1923 Convention between the United States of America and Canada for the Preservation of the Halibut Fisheries of the Northern Pacific Ocean, especially Articles 1 and 2; 1930 Convention between the United States of America and Canada for the Preservation of the Halibut Fisheries of the Northern Pacific Ocean and Bering Sea, Arts. 1, 2 and 3; 1949 International Convention for the Northwest Atlantic Fisheries, Art. IV (2) and especially Art. VIII; 1959 North-East Atlantic Fisheries Convention, Art. 7; 1973 Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and the Belts, Art. I and especially Art. X. Cf. 1958 Geneva Convention an Fishing and Conservation of the Living Resources of the High Seas, Art. 2). The same usage is to be found in the practice of States. Typically, in their enactments and administrative acts, States describe such measures by reference to such criteria as: the limitation of catches through quotas; the regulation of catches by prescribing periods and zones in which fishing is permitted; and the setting of limits on the size of fish which may be caught or the types of fishing gear which may be used (see, among very many examples, Algerian Legislative Decree No. 94-13 of 28 May 1994, establishing the general rules relating to fisheries; Argentine Law No. 24922 of 6 January 1998, establishing the Federal Fishing Regime; Malagasy Ordinance No. 93-022 of 1993 regulating fishing and aquaculture; New Zealand Fisheries Act 1996; as well as, for the European Union, the basic texts formed by Regulation (EEC) No. 3760/92 of 20 December 1992, establishing a Community system for fisheries and aquaculture, and Regulation (EC) No. 894/97 of 29 April 1997, laying down certain technical measures for the conservation of fisheries resources. For NAFO practice, see its document entitled Conservation and Enforcement Measures (NAFO/FC/Doc. 96/1)). International law thus characterizes "conservation and management measures" by reference to factual and scientific criteria.
In certain international agreements (for example the United Nations Agreement on Straddling Stocks of 1995 and the "Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas" (FAO 1993), neither of which has entered into force) the parties have expressly stipulated, "for purposes of th[e] Agreement", that what is generally understood by "conservation and management measures" must comply with the obligations of international law that they have undertaken pursuant to these agreements, such as, compatibility with maximum sustainable yield, concern for the needs of developing States, the duty to exchange scientific data, effective flag State control of its vessels, and the maintenance of detailed records of fishing vessels.
The question of who may take conservation and management measures, and the areas to which they may relate, is neither in international law generally nor in these agreements treated as an element of the definition of conservation and management measures. The authority from which such measures derive, the area affected by them, and the way in which they are to be enforced do not belong to the essential attributes intrinsic to the very concept of conservation and management measures; they are, in contrast, elements to be taken into consideration for the purpose of determining the legality of such measures under international law.