R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (No 1)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER |
| Judgment Date | 05 December 2001 |
| Neutral Citation | [2001] EWHC 1174 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2001 |
| Docket Number | NO: CO/2764/01 |
[2001] EWHC 1174 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Scott Baker
NO: CO/2764/01
MR D VAUGHAN QC and MR F RANDOLPH (instructed by Thomas Cooper & Stibbard, Ibex House, 42–47 Minories, London EC3N IHA) appeared on behalf of the Claimant
MR K PARKER QC and MR D BEARD (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Wednesday, 5th December 2001
INTRODUCTION
This case is about a licence to fish for Patagonian Toothfish (Dissostichus Eleginoides) in the territorial waters of South Georgia and the South Sandwich Islands (SGSSI). Such a licence is a very valuable asset. The Claimant hoped for and expected a licence for 400 tonnes for its vessel Jacqueline for the 2001 season. Toothfish is said to sell for around US$9,000 per tonne on the quay (a sterling equivalent of about £2.5m for 400 tonnes). The cost of a 400 tonne licence is just under £223,000. The Claimant was refused a licence following a direction given by the Secretary of State for Foreign and Commonwealth Affairs (the Defendant in these proceedings) on 7th June 2001.
BACKGROUND
Fishing in SGSSI waters is regulated pursuant to the Convention on the Conservation of Antarctic Marine Living Resources ("CCAMLR") to which the United Kingdom is a signatory. Annual total allowable catches ("TACs") are set by the CCAMLR Commission for each of the CCAMLR designated blocks of ocean. The SGSSI are in sub-areas 48.3 and 48.4. TACs are concerned with the limitation of fishing activity for specific species in specific areas. They are not concerned with the identity or nationality of vessels fishing for the TAC. TACs are based on scientific recommendations produced by CCAMLR's scientific committee and are not subject to political negotiations.
All the coastal state countries that are signatories to CCAMLR operate 200 mile exclusive economic zones (EEZs) or maritime zones (which for present purposes makes no difference). The relevant zone in this case is that operated by the United Kingdom in relation to SGSSI. EEZs are governed as to public international law by the United Nations Convention on the Law of the Sea. Article 62(1) of the Convention provides that the coastal state shall promote the objective of optimum utilisation of the living resources in the EEZ. Article 62(2) provides that the coastal state shall determine its capacity to harvest the living resources of the EEZ. Where the state does not have the capacity to harvest the entire allowable catch, it shall give other states access to the surplus. In doing so, the state is obliged under Article 62(3) to take into account all relevant factors. These include (i) the significance of the living resources of the area to the economy of the state concerned, and its other national interests; (ii) the requirements of developing countries in the subregion or region in harvesting part of the surplus and (iii) the need to minimise economic dislocation in states whose nationals have habitually fished in the zone, or which have made substantial efforts in research and identification of stocks.
SGSSI is an Overseas Territory of the United Kingdom. Its constitution is set out in the SGSSI Order 1985 ("the 1985 Order"). For about 80 years, until 1985, SGSSI was a dependency of the Falkland Islands, but since 1985 it has been a wholly separate and distinct Overseas Territory. Section 4 of the 1985 Order creates the office of the Commissioner. Section 5 provides as follows:
"The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order or any law and such other powers and duties as Her Majesty may from time to time be pleased to assign to him and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State."
By section 7 the Commissioner may constitute offices for SGSSI and appoint persons to fill those offices. By section 9 he is empowered to make laws "for the peace order and good government" of SGSSI. Provisions for the direction of Overseas Territories Government by Her Majesty's government are common in the constitutions of Overseas Territories but, in practice, formal instructions are almost never issued. Persuasive negotiation and advice usually achieves the desired result.
By a proclamation of 7th May 1993 (the 1993 Proclamation) the Commissioner of SGSSI declared a maritime zone over an area extending 200 nautical miles from SGSSI within which the government of SGSSI has exclusive jurisdiction over fisheries. The regime for controlling fisheries in the waters of SGSSI has been enacted under the powers conferred on the Commissioner by the 1985 Order. On 23rd July 1993 the Commissioner enacted the Fisheries (Conservation and Management) Ordinance 1993 (the 1993 Ordinance). The effect of the 1993 Ordinance which was replaced by a similar ordinance in 2000 (the 2000 Ordinance) was to prohibit fishing in the relevant area of the maritime zone without a licence.
The Director of Fisheries is charged with various responsibilities under section 4 of the 2000 Ordinance. These include issuing fishing licences. By section 4.2 the performance of his duties may be subject to the direction of the Commissioner. Thus the route for the direction of the Secretary of State in this case was through the Commissioner to the Director of Fisheries. Under section 4(5) the Director is required to have regard to provisions of CCAMLR when discharging his duties.
In summary, what happened in the present case was this. For the 2001 season, following advice from the Secretary of State, the Director issued licences to ten vessels but those vessels did not include the Claimant. The Claimant sought judicial review of the Director's decision not to give them a licence and the Supreme Court of SGSSI quashed the Director's decision. The Secretary of State then gave a direction to the Commissioner in the same terms as the advice that had previously been given and the Commissioner then gave a corresponding direction to the Director. The Claimant was again refused a licence on 7th June 2001 and now seeks judicial review of the Secretary of State's decision.
There was no targeted fishing for Toothfish in what is now the maritime zone until the end of the 1980s when USSR flagged vessels began to fish for Toothfish there. Following the economic collapse of the former Soviet republics, the USSR flagged vessels reduced their fishing activities in the area. The Chileans then began to exploit the fishing. However, it was not until the 1996/1997 fishing season that any United Kingdom or United Kingdom Overseas Territory flagged vessels began to fish for Toothfish in the maritime zone.
Fishing in the sub-Antarctic and Antarctic waters of the Southern Ocean is regulated by CCAMLR. The treaty was negotiated in the late 1970s to address both the threat of over-exploitation of fin fish in the Southern Ocean and concern at the implications of large scale fishing for the crustacean krill which is an ecological linchpin of the Southern Ocean food web and the staple food of many marine species.
CCAMLR was adopted in May 1980 and came into force two years later in April 1982. The Secretariat for CCAMLR is based in Hobart, Tasmania. CCAMLR is open to any state or Regional Economic Integration Organisation ("REIO"), for example the European Community. The executive body of CCAMLR is its Commission ("the CCAMLR Commission"), made up of members who are state parties plus REIOs. Acceding states which have not become members have observer status along with a range of inter-governmental and non-governmental organisations. Currently, the CCAMLR Commission is made up of 23 states plus the European Community (represented by the EU Commission). The United Kingdom was a founding state of CCAMLR and has been an active key member in the CCAMLR Commission ever since. The CCAMLR Commission meets annually in Hobart for two weeks in the autumn for the purpose of reviewing existing conservation measures and adopting new measures.
At its annual meetings the CCAMLR Commission adopts conservation measures under the provisions of Article 9(1)(f) and 2 of the Convention. These measures include matters such as the opening and closing of fishing seasons, TACs, specifications for fishing gear and so forth. Conservation measures become binding on all members of the Commission 180 days after their adoption unless a member places a reservation on the measure within 90 days.
It is for the member states of CCAMLR to implement CCAMLR measures. States are legally responsible for and have jurisdiction over their own flagged vessels. Coastal member states, such as the United Kingdom, with exclusive economic or maritime zones within the CCAMLR area are able to enforce CCAMLR regulations within those zones also in respect of foreign flagged vessels. Beyond the EEZ, on the high seas, no state has control over fishing or use of other resources save in relation to its own flagged vessels.
The majority of those states with Overseas Territories within the CCAMLR area have declared 200 mile EEZs around their territories. These include France around the islands of Kerguelen and Crozet, Australia around Heard Island, Norway around Bouvet...
To continue reading
Request your trial
-
R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs
...of the Secretary of State's instruction on conventional public law grounds, and succeeded both in the High Court and on appeal: [2001] EWHC Admin 1174; [2002] EWCA Civ 1409. There is no further appeal on that aspect of the case. But an issue remains whether Quark is entitled to damages. O......
-
Mitchell et Al v Melidor et Al
...Environment [2004] UKPC 6 mentioned Finucane's (Geraldine) Application [2013] NIQB 45 mentioned R (Quark Fishing Ltd) v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 mentioned R v. IRC, ex parte National Federation of Self-Employed and Small Businesses Lt......
- Re Williamson's Application for Judicial Review
-
R. v. United Kingdom (Secretary of State for Foreign and Commonwealth Affairs); Ex parte Quark Fishing Ltd., [2005] N.R. Uned. 144 (HL)
...of the Secretary of State's instruction on conventional public law grounds, and succeeded both in the High Court and on appeal: [2001] EWHC Admin 1174; [2002] EWCA Civ 1409. There is no further appeal on that aspect of the case. But an issue remains whether Quark is entitled to damages......