4.1 The European Community
It is proposed now to address in particular the problem that has arisen in regard to the “nationality of catches”, and to consider some possible areas where some problems might arise in allocating responsibility. It is, in particular, hoped to clarify what is meant by the phrase the “nationality of catches” in view of the fact that it is sometimes used as a basis for allocating responsibility for providing information.
If the phrase is used as a means of identifying the responsibility of the party to compile the data, there should be no problem with its use. For example, if it is said that catch has the nationality of the flag State where it is the flag state making the reporting, or that it has the nationality of the coastal State where it has been caught by a vessel of the flag State, there can be no problem. The problem arises once the phrase is used as a basis for making decisions about who should report; in fact, it is not very helpful to talk about the nationality of a catch for the purpose of data collection, except as a short hand expression to indicate where the responsibility lies.
For example, fish caught within an EEZ of a particular State might be said to have the nationality of that State, but the term could be quite misleading if it is intended to suggest that catches have a nationality simply because the fish have been caught in the EEZ of a particular State, or at another extreme that they have a nationality simply because they were caught by a vessel flying the flag of a particular State.
In this regard (i.e. on the “nationality” of a catch) the 1982 UN Convention is silent. All it does is give sovereign rights over the marine living resources to the coastal State, but until the fish are caught, they can hardly be said to have a nationality or indeed, to be owned. Once caught e.g. within an EEZ, the fish may well be regarded as belonging to (i.e. having the nationality of) the coastal State for certain purposes under national law. They may well continue, (depending how the national law has chosen to characterise the matter, if at all) to be fish having the nationality of the coastal State even though caught by another flag State. But, if for statistical purposes, it is thought better to have the information provided by the flag State, even though caught within the EEZ, then that could be acceptable. However, it is most probably better not to talk about “nationality” in this context except possibly as shorthand for the obligation of the flag State or the coastal State to provide that information.
In other words, the nationality of a catch is at bottom not an important issue for conservation and management purposes, though it could become so in other contexts, as was discussed in the preceding heading 3. As mentioned, the provisions of the 1982 UN Convention regarding the collection of data are for the most part silent on who should provide the information, emphasising instead the need to provide it. It is only in the UN Fish Stocks Agreement that an obligation is placed squarely on the flag State, but even there it is not placed on the flag State exclusively.
It is interesting to note that the CWP itself uses the term “nationality of catch” and “nationality of catch data” interchangeably in its Report of the 17th Session, 1997, (paragraphs 19-24). It is suggested that the term “nationality of catch data” is preferred inasmuch as it lessens the impression that the nationality of the catch is important for fisheries conservation and management; such a phrase also emphasises more the origin of the catch data, which is more important.
Before turning to consider the situation under national laws, it is proposed to consider the situation arising under European Community law, which raises another dimension to the use of the term “nationality of catch”, and which shows how origin of catch issues can arise under European Community law. It has to be stressed however, that the issues raised here are peculiar to the European Community. What follows is a brief summary of one case that was considered by the European Court of Justice, but it should not be thought that this case is dispositive of the entire matter, as similar issues of interpretation can arise under other Community laws.
The facts of the case are as follows: some British trawlers cast empty nets into the Baltic Sea some 40 to 80 miles off the Polish coast. These nets were then taken over by Polish trawlers, which trawled with them though without taking them on board, nor did the British vessels enter Polish Territorial Waters. When the trawl was completed, the British trawlers lifted the nets, the ends of which had been passed to them by the Polish vessels, the contents of the nets were taken on board the British trawlers, which then took the fish to UK. In UK, they were treated as being of Community origin and thus entitled to duty free admission. However, this view was contested by the EC. Following an exchange of letters, the matter ended up in the European Court of Justice, and after a lengthy analysis of the Regulation in question, the court declared:
“that by not levying customs duties on the importation into its territory offish caught during joint fishing operations in which vessels flying the British flag took part together with vessels flying the flag of a non-member country, the latter having performed the essential part of the operation of catching the fish and the former having merely raised the nets out of the water, the United Kingdom has failed to fulfil its obligations under article 4 (2) (f) of Regulation (EEC) no 802/68 of the council on the common definition of the origin of goods and under Regulation (EEC) no 950/68 of the Council on the common customs tariff, as amended by Regulation no 3000/79”7This case is a very useful illustration of the problems which can arise once we enter the realm of the domestic laws of particular countries, for although it was Community law being applied. It was in effect the equivalent of national law for our purposes. Further, it shows how a matter such as origin of catch can become enmeshed with a question of nationality of catch, when in truth the legal core of the issue was not either of these, but the interpretation of an EC regulation, and in particular of the words “taken from the sea” and “originating in the country in which the last substantial process or operation that is economically justified was performed”. Applying these words to the facts, the conclusion of the court was that the most significant “operation in fishing was carried out by Polish vessels”.7 Judgment of the court, 28 March, 1985. European Court Reports 1985, p 1169
Similar issues can arise under national laws, e.g. because of the way the import laws of the country are drafted, or because of federal structures which introduce such complications.
