1951 entitled "Fishing Operations by Foreign Vessels Invading Japanese Territorial Waters": 5 "In view of the fact that Korean fishing boats (shark) have recently engaged in fishing operations around the Tsushima Island after invading our territorial waters, an appropriate measure to control them is under discussion by the authorities concerned. At the present time, the fact that foreign fishing vessels which trespassed in our territorial waters and engaged in fishing operations does not constitute a violation of the alien registration law. Nor does any law govern this problem. Should such incidents occur again in the future, inspection and search should be strictly conducted on the spot. The utmost caution is urged lest such trespassing be used as a means of secret passage and smuggling. At the same time, it is urged that a special effort be made to have them withdraw from our territorial waters." 8 It appears that without domestic legislation governing the subject, Japan observes the 3-mile limit as a reserved fishing zone for her own nationals." Nevertheless, a fishing license may be granted to an alien who wishes to fish within Japanese territorial waters under the provision of the fishery law, which does not contain any special provisions prohibiting aliens from so doing. Mr. Katayama was of the opinion that "the application of the fishery law to aliens should be determined by the terms of a treaty (of commerce, navigation, etc.) or a law and the government policy of the contracting countries, if there is any provision to this effect." 9 He pointed out that in the absence of such a treaty, however, it should be decided according to each particular case. He concluded that "even if a license is granted to aliens, the issuing authorities may restrict or prohibit the use of the license, or revoke it at its own discretion whenever it is deemed necessary *** 10 Under the provisions of articles 10 and 15 11 of the fishery law, local governments are empowered to issue licenses and enact local ordinances regulating fishing. However, it is construed that these local ordinances are not applicable to operations by foreign fishing boats outside the territorial sea.12 Although there is no law regulating exclusive fishery zones established beyond the 3-mile limit, so-called prohibited zones of dragnet fishing have been established by local government ordinances. In this respect, Profs. Taoka Ryôichi and Tabata Shigejirô stated: 13 "The prohibited zones of dragnet fishing, which have been established by prefectural governments for the purpose of protecting species of fish, sometimes extend to 7 or 10 miles from the coast. They were, however, not created by treaty, but by domestic law on a local basis. Therefore, these local ordinances will not be enforced against foreign vessels beyond the 3-mile limit ***” They went on to say that "since few foreign fishing vessels approach the seas adjacent to Japan, no serious inconvenience is likely to occur at present. If many foreign ships come often to the neighboring seas for fishing purposes in the future, it will be necessary to establish a 'contiguous zone' as far as the problem of the prohibited zones of dragnet fishing 14 is concerned." Throughout the U.N. Conferences on the Law of the Sea in 1958 and 1960, Japan remained one of the "stanchest upholders of the 3-mile limit." 15 The up-to-date position of Japan was spelled out in the statement made by Ambassador Matsudaira before the plenary meeting on December 10, 1958, on the question of convening a second U.N. Conference on the Law of the Sea. He declared that: 16 We maintain our position: "1. My Government believes that the 3-mile limit is the only established rule in the body of international law. Any extension of the breadth of territorial seas Notice No. 135, Maritime Police Bureau, Kaijô hoan hôreishû [Collection of Laws and Regulations Relating to Maritime Security), v. 8, 1952, p. 1090. 6 Law No. 125, Apr. 28, 1952. 7 C. John Colombos, "The International Law of the Sea" (London: Longmans, Green & Co., 1959), p. 130. Law No. 267, Dec. 15, 1949, as amended by law Nos. 128 and 235, 1961. See Japan. Ministry of Foreign Affairs, Nihon ni jokeru ippan gaikokujin no kokunaihôjô no chii (The Status of Aliens Residing in Japan Under Domestic Law), 1953, p. 133. Fusakichi Katayama, Gyoghôhô [The Fishery Law], (Tokyo: Suisansha, 1942), p. 23. See also Ide Masataka, Gyogyôhô [The Fishery Law] (Tokyo: Nihon Hyôron Sha), 1943, p. 25. 10 Katayama, Gyogyôhô, p. 23. 11 See appendix. 12 Maritime Police Notice No. 477, Oct. 9, 1951, entitled "Application of the Fisheries Control Regulations of To, Do, Fu, or Ken (Metropolis, Province and Prefecture).' See also arts. 1 and 8 of the Criminal Code. 13 R. Taoka and S. Tabata, Kokusaihô kôwa [Lecture on International Law], (Tokyo: Yûshindô), 1950, 14 Ibid. p. 96. 15 Philip C. Jessup, "The Law of the Sea Around Us," AJIL LV (1961), p. 105. 18 U.N. General Assembly XIII (1958), Ors. Sixth committee, Summary Records of Meetings, Dec. 10, 1958. could be made only when it is generally, expressly, and specifically recognized and accepted by all nations. "2. Any extension of the breadth of territorial seas could become invalid unless it were realized through a convention or an agreement. Neither a unilateral act nor a municipal law could have any legal effect under international law, as such. Any such action, we feel, is nothing but an attempt for unilateral acquisition of the common property of mankind. It is undoubtedly against law. "3. Japan recognizes no exclusive fishing limits outside the territorial seas." In the conference of 1958, Japan was one of the nations which voted against the Convention on the Continental Shelf of 1958.17 The problem with which present-day Japan is confronted is not the regulation of foreign fishing vessels within its territorial waters as few ships approach the coast of Japan. It lies rather in trespassing Japanese fishing boats on the territorial seas or the alleged exclusive fishery zones of neighboring countries. Actually, all the States bordering on the Pacific have complained about Japanese encroachment on their fishing grounds, and have taken restrictive measures.18 It is, then, quite obvious that it is largely Japan's interest in fishing on the high seas which has dictated its policy with regard to territorial seas. APPENDIX THE FISHERY LAW OF JAPAN ART. 10. Any person who intends to have a fishery right created shall file an application for the grant with the governor of To, Do, Fu or Ken (metropolis, province, or prefecture) therefor. ART. 65. The competent minister or the governor of To, Do, Fu or Ken may, for the purpose of propagation and protection of aquatic animals and plants, fisheries supervision or other fisheries adjustment, issue necessary ministrial ordinances or regulations concerning the following items: (1) Restriction or prohibition relating to gathering and taking aquatic animals and plants; (2) Restriction or prohibition relating to sale or possession of aquatic animals and plants or products therefrom; (3) Restriction or prohibition relating to fishing gears or fishing boats; (4) Restriction relating to the number or qualification of fisheries operators; II. Necessary penal provisions may be stipulated in the ministrial ordinances or regulations as prescribed in the preceding paragraph. III. The penalties which may be stipulated in the penal provisions as mentioned in the preceding paragraph shall be, in case of the ministrial ordinances, penal servitude for a period not exceeding 2 years, a fine not exceeding 50,000 yen, detention or minor fine, or concurrent imposition, and in the case of regulations, penal servitude for a period not exceeding 6 months, a fine not exceeding 10,000 yen, detention or minor fine, or concurrent imposition. FRANCE FISHING REGULATIONS WITHIN TERRITORIAL WATERS; ENFORCEMENT SURVEY OF LEGISLATION 1 There are two types of legislation in regard to fishing in France: one concerns fishing in the rivers and all waters within the national territory, and the other maritime fishing. In the first case fishing is regulated by the Rural and Forestry Code.2 In its article 402 the code states that no person shall be permitted to fish in such waters 3 if he does not belong to a fishing association or similar organization concerned with fishing which is regularly approved by the prefect of the province in accordance with the regulations issued by the Ministry of Agriculture and the provisions 17 Arthur Dean, "The Second Geneva Conference of the Law of the Sea: The Right for Freedom of the Sea," ibid., LIV (1960); Richard Young, "Sedentary Fisheries and the Conference on the Continental Shelf," ibid., LV (1960); Shigeru Oda, "Japan and the United Nations Conference on the Law of the Sea," The Japanese Annual of International Law, No. 3 (1959), p. 86. 18 Countries which have had frequent difficulties with the fishing interests of Japan include: Malaya, El Salvador, Panama, South Korea, Communist China, Australia, and the United States. 1 Dalloz. Répertoire de Droit Public et Administrative, Paris, 1959-60; P. Avron. La législation et la règlementation des pèches maritimes. Paris, 1951; Guerin and Avron. Précis de législation maritime. Paris, 1949-56. 2 Dalloz. Code Rural-Code Forestier. Paris, 1961. 3 Ibid., p. 108. This article was amended by law No. 57-362 of March 23, 1957. of the Rural and Forestry Code of France. Membership in such organizations requires the payment of taxes for such activity in addition to the license fees, both of which are fixed by the High Council of Fishing, a body within the Department of Agriculture. In the provisions of the code the protection of fishing so as best to profit the Nation is the paramount concern. The code also contains penal provisions against violations of such laws and regulations. The penalties consist mainly of fines and confiscation of fishing equipment as well as of the catch. The law of course is more severe in the case of recidivists and in such cases the penalties are doubled and in some instances even imprisonment is provided for. The second type of legislation, which is the main topic of this survey, is that concerning maritime fishing which also covers fishing within the territorial waters of France. Under the special legislation for this type of fishing three categories of fishing may be defined: deep sea fishing, fishing on the high seas—that is, more than 50 miles off the coast-and finally seacoast fishing—that is, fishing close to shore-which also includes fishing in the territorial waters of France. After several conflicting legislative experiments in the past century, fishing in the territorial waters of France was defined and put under the absolute control of the French Republic by a law passed in 1888 and the right to fish in such waters was established within a limit set at 3 nautical miles from the low water mark and reserved to French nationals and completely forbidden to foreigners.* Since 1892 the French Government has been systematically enacting laws to encourage and assist sea fishing for the benefit of the country's economy. The principle embodied in the law of 1888 of preserving the territorial waters of the country to French nationals was later extended to all French colonies," possessions, and protectorates and, except for a few amendments regarding procedural matters and the amount of penalties, the law of 1888 is still the basic law of the country. With regard to its own nationals the competent French authorities, for the purpose of preserving fish resources or for other national interests, may order the cessation of fishing within the territorial waters on a temporary basis at any time. French legislation on deep sea fishing is also based on the protection of such resources, and the entire legislation in force regulates fishing in such a manner as to prevent damage to the national economy. Stricter controls were applied after the development of petroleum products which may pollute the waters and destroy marine life. In fact the need for such controls was pointed out in an international convention signed in London in 1954. The urgency of developing such principles of protection was more stressed than ever and French legal writers pointed out that rules for protecting the seabed must also be provided. In the international field the agreements and regulations are aimed at avoiding conflicts between fishermen of various nationalities and at enforcing a policy which will protect the resources of the sea for the benefit of all nations concerned. For this purpose France has signed a number of international agreements such as the Franco-British Convention of 1839, the Franco-Spanish Convention of 1886, the Franco-Italian Convention of 1908, the Hague Convention of 1882, and the International Convention of the North Atlantic Ocean signed in Washington in 1949 and other minor agreements. The International Convention of 1936 was not signed by France but was acceded to in 1946.6 The basic maritime fishing law of France which reserves the exercise of fishing in territorial waters to French nationals provides the penalties to enforce this prohibition. Such penalties consist of heavy fines and imprisonment for up to 3 months applied against the captain and crew of fishing boats. For repeaters who commit an offense within 2 years after the first violation such penalties are doubled and the vessel is held until all fines and other costs are paid. If this is not done within 90 days from the infliction of the final penalty the boat is sold in favor of the legal claimants. This French law which reserves such rights in territorial waters to nationals does not prohibit the free traffic and anchoring of foreign fishing boats within the territorial waters provided they do not fish and comply with certain regulations regarding traffic and anchoring. "Journal Officiel," 1888, p. 937. 5 Decree of Nov. 22, 1928, "Journal Officiel," Nov. 28, 1929. Dalloz. "Répertoire de Droit Public et Administrative," v. II, La Pèche Maritime. Paris, 1959, p. 481. TRANSLATION OF PERTINENT STATUTES "LAW FORBIDDING FOREIGNERS TO FISH IN THE TERRITORIAL WATERS OF FRANCE AND ALGERIA 7 8 "ART. 1. Fishing in the territorial waters of France and Algeria within a limit set at three marine miles from the low water mark set at low tide shall be forbidden to all foreign boats. "In bays the demarkation line of three miles is measured from a straight line drawn across the bay on the side nearest the entrance [to the bay] at the first point where the opening does not exceed ten miles. In each maritime district and in Algeria special decrees shall be issued to determine the line from which this shall be measured. "ART. 2. If the captain of a foreign boat or the members of its crew are caught casting nets in the reserved part of French territorial waters, or exercising any fishing activities there, the captain shall be punished by a fine of not less then 3,600 NF [New French Francs] and not more than 36,000 NF.9 'ART. 3. In cases of recidivists the fine provided for in the preceding Article shall be doubled; in addition, the confiscation of the equipment and the catch is obligatory, and their sale is carried out in accordance with the provision of Article 6 of the present Law. Furthermore the captain of the delinquent boat may be subjected to imprisonment for from 15 days to 3 months. A person who in the two years preceding the commission of the offense has violated the present Law and has been punished for it shall be considered a recidivist.10 "ART. 4. Officers and noncommissioned officers of the [French] Navy or of any vessel protecting fishing as well as all police in charge of maritime fishing shall investigate the offense and draw up a transcript of proceedings and conduct the offender and the boat, or have them conducted, to the nearest French port. "They shall submit their reports, transcripts of proceedings, and documents verifying the offense to the proper officer of the Maritime Commissioner. "ART. 5. [This Article deals with procedural matters and the filing of a charge gainst violators.] "ART. 6. The officer or agent who conducted or ordered the conducting of a boat to a French port shall deliver it into the hands of the Maritime District Office which shall confiscate the fishing equipment and the catch found on board regardless of who the owner is. The catch shall be sold at once in the port where the boat was taken in accordance with the formalities prescribed by Article 42 of the Law of April 15, 1829. The proceeds from such sale shall be consigned to the Seamen's Institute of such District until judgment is rendered. "Regardless of the fine [penalties] provided for in Articles 2 and 3 the court shall order the destruction of the prohibited equipment and the seizure of all non-prohibited equipment together with all fish products found on the boat or their sales price. Non-prohibited equipment shall be sold. "The proceeds from such sale, as well as those from the fishing products, shall be handed over to the Fund for Disabled Seamen. "ART. 7. The prosecution shall be carried out by the Office of the Prosecutor of the Republic or an officer of the Maritime District's Commissioner. "Such officers shall be entitled, in this case, to state the matter and defend their findings before the court. "If proceedings have not been instituted within three months from the date of the commission of the offense, public action shall be prescribed. "ART. 8. The proceedings are taken before the "police correctional court" [Court of General Sessions] in the district in which the port is located or the offenders have been taken. The court shall make its ruling as soon as possible. "ART. 9. As prescribed in Article 6, the transcript of proceedings of the officers or agents entrusted with establishing the offense shall constitute evidence. In the absence of transcripts the offense shall be established by witnesses. "ART. 10. The boat shall be held until payment in full of all expenses for custody and maintenance, court costs, and fines has been made. If all these state debts have not been paid in three months from the day the sentence became final, the boat shall be sold by the Maritime Office for the benefit of the various creditors, in the presence of the tax collector in charge of fines. 7 "Journal Officiel," Mars-Avril, 1888. p. 937-938. Since the establishment of Algeria's independence in 1962 this provision no longer applies to that country. This article was thus amended by the Law of March 30, 1928. 10 Article 4 was amended by the Laws of March 30, 1928 and April 16, 1928 (Dalloz. Code Pénal. Paris, 1961). "The following shall have preferential claims over the returns from the sale: "Expenses for custody and maintenance during the boat's detention claimed by the Maritime Office; "Court costs; "Amount of fines. "The preferential order of these debts shall be regulated by Article 191 of the Commercial Code. "The remainder of the proceeds from the sale shall be deposited in favor of the owners of the boat. "A shipowner who has been sentenced in [a court of] first instance and appeals may only ask the court for the release of the boat after depositing the fines and all other expenses imposed upon him."1 "ART. 11. The present Law shall not interfere with the free movement of foreign fishing boats sailing or anchoring in French territorial waters. A decree issued by the competent authorities shall, however, determine the special police regulations to which, in this case, such fishing boats must conform. Violations of such regulations shall be established and acted upon in the manner established in the present Law; they will be punished by a fine of not less than 60 and not more than 360 NF, without prejudice to the right of holding the boat. "ART. 12. [In the above provisions] there is no departure from the provisions of international conventions and related laws." COMMONWEALTH OF AUSTRALIA An Act relating to Pearl Shell, Trochus, Beche-de-mer and Green Snail Fisheries in certain Australian Waters, as amended. (Assented to 13th March, 1952; amended 6th March, 1953, and 17th September, 1953.) Be it enacted by the Queen's Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows: PART I. PRELIMINARY 1. This Act may be cited as the Pearl Fisheries Act 1952. 2. This Act shall come into operation on a date to be fixed by Proclamation. 3. (1) The laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth, known as The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1888 and The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act of 1889 are repealed. (2) Section eight of the Acts Interpretation Act 1901–1950 applies to the repeal effected by this section as if the laws repealed were Acts passed by the Parliament. 4. This Act is divided into Parts, as folllows: Part I. Preliminary. Part II. Administration. Part III. Regulation of Pearl Fisheries. Part IV. Research and Development. Part V. Miscellaneous. 5. (1) In this Act, unless the contrary intention appears— "Australian waters' means (a) Australian waters beyond territorial limits; (b) the waters adjacent to a Territory within territorial limits; and (c) the waters adjacent to a Territory not being part of the Commonwealth, and beyond territorial limits, being waters that are above the continental shelf;" "boat" means a boat which does not exceed two tons dead weight and belongs to and is ordinarily attached to or carried on board a pearling ship but does not include such a boat in respect of a time during which the boat is used in or for the purpose of pearling independently of a pearling ship; "diver's tender" means the person attending on a diver and in charge of the diving operations while the diver is under water; "officer" means (a) a person permanently or temporarily employed in the Public Service of the Commonwealth or of a Territory or by an authority of the Commonwealth and authorized to perform duties under this Act; 11 This article was amended by the law of Apr. 16, 1933. Dalloz. Code Pénal, Paris, 1961. |