In general, the main “villains” that continued to creep on (or thicken) jurisdiction
after the signature of UNCLOS are the following. Firstly, Chile and its policy of mar
presencial advanced in 1990,
94 which would mean in practice the affirmation of
undue rights far beyond the 200-nm zone, thereby posing a threat to the careful
balance struck at UNCLOS. Such a view could not have been more distant from
reality, as the mar presencial is merely a space of special interest to Chile, due to the
economic and security activities that may play out within the zone. It is no claim to
exclusive jurisdiction, but a geopolitical (or oceanopolítico, in Spanish) concept,
which sought to foster efforts against predatory fishing by foreign fleets in the waters
adjacent to the Chilean EEZ. The concept, crafted by the Admiral of the Chilean
Navy, Jorge Martínez Busch,
95 in a time prior to the 1995 UNFSA,
96 intended to
supplement UNCLOS’ serious deficiencies in surmounting abusive extraction of
straddling and highly migratory fish species. Interestingly, the notion of “presential
sea” is at the roots of the year-long political and legal battle between Chile and the
European Union regarding the exploitation of swordfish stocks in the South-Eastern
Pacific Ocean.
97
Another excessive claimant was Canada, a developed state that passed municipal
legislation to conserve fish stock in the Grand Banks of the coast of Newfoundland—the Canadian Coastal Fisheries Protection Act, amended in 1994. The main
problem was that the statute, after the amendment, asserted jurisdiction over specific
parts of the Grand Banks, known as “nose” and “tail”, which lie beyond the 200-nm
limit. Enforcement of the abovementioned legislation resulted in the boarding and
seizure of the Spanish fishing vessel Estai approximately 245 nm off the Canadian
coast, i.e. beyond the Canadian EEZ. According to Canada, the newly reformed
legislation extended the area of application of the Act in order to include the
Regulatory Area of the Northwest Atlantic Fisheries Organization (NAFO).
98 The
case, also known as the “Turbot war”, was brought by Spain to the ICJ, which in its
judgment of 4 December 1998 decided that it had no jurisdiction to hear the case.
94 For further details on the mar presencial, see generally Vicuña (1993).
95 The concept of mar presencial was presented in a lecture at Viñas del Mar on 4 May 1990. See
Yturriaga (1990), p. 228.
96 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, UNTS 2167, New York, 4 August 1995.
97 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the
South-Eastern Pacific Ocean (Chile/European Community), International Tribunal for the Law of
the Sea, 15 March 2001.
98 Concerning the admission of the case before the ICJ, Canada stated that the Court had compulsory
jurisdiction “over all disputes other than disputes arising out of or concerning conservation and
management measures taken by Canada with respect to vessels fishing in the [Northwest Atlantic
Fisheries Organization’s] Regulatory Area and the enforcement of such measures”. That had been
the reservation made by Canada on 10 May 1994, excluding the Court’s jurisdiction. The Canadian
delegation argued that the dispute referred to in the Spanish Application concerned matters covered
by the reservation, and this thesis was ultimately adopted by the Bench.
6.3 Reasons for Alarm?
159
after the signature of UNCLOS are the following. Firstly, Chile and its policy of mar
presencial advanced in 1990,
94 which would mean in practice the affirmation of
undue rights far beyond the 200-nm zone, thereby posing a threat to the careful
balance struck at UNCLOS. Such a view could not have been more distant from
reality, as the mar presencial is merely a space of special interest to Chile, due to the
economic and security activities that may play out within the zone. It is no claim to
exclusive jurisdiction, but a geopolitical (or oceanopolítico, in Spanish) concept,
which sought to foster efforts against predatory fishing by foreign fleets in the waters
adjacent to the Chilean EEZ. The concept, crafted by the Admiral of the Chilean
Navy, Jorge Martínez Busch,
95 in a time prior to the 1995 UNFSA,
96 intended to
supplement UNCLOS’ serious deficiencies in surmounting abusive extraction of
straddling and highly migratory fish species. Interestingly, the notion of “presential
sea” is at the roots of the year-long political and legal battle between Chile and the
European Union regarding the exploitation of swordfish stocks in the South-Eastern
Pacific Ocean.
97
Another excessive claimant was Canada, a developed state that passed municipal
legislation to conserve fish stock in the Grand Banks of the coast of Newfoundland—the Canadian Coastal Fisheries Protection Act, amended in 1994. The main
problem was that the statute, after the amendment, asserted jurisdiction over specific
parts of the Grand Banks, known as “nose” and “tail”, which lie beyond the 200-nm
limit. Enforcement of the abovementioned legislation resulted in the boarding and
seizure of the Spanish fishing vessel Estai approximately 245 nm off the Canadian
coast, i.e. beyond the Canadian EEZ. According to Canada, the newly reformed
legislation extended the area of application of the Act in order to include the
Regulatory Area of the Northwest Atlantic Fisheries Organization (NAFO).
98 The
case, also known as the “Turbot war”, was brought by Spain to the ICJ, which in its
judgment of 4 December 1998 decided that it had no jurisdiction to hear the case.
94 For further details on the mar presencial, see generally Vicuña (1993).
95 The concept of mar presencial was presented in a lecture at Viñas del Mar on 4 May 1990. See
Yturriaga (1990), p. 228.
96 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, UNTS 2167, New York, 4 August 1995.
97 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the
South-Eastern Pacific Ocean (Chile/European Community), International Tribunal for the Law of
the Sea, 15 March 2001.
98 Concerning the admission of the case before the ICJ, Canada stated that the Court had compulsory
jurisdiction “over all disputes other than disputes arising out of or concerning conservation and
management measures taken by Canada with respect to vessels fishing in the [Northwest Atlantic
Fisheries Organization’s] Regulatory Area and the enforcement of such measures”. That had been
the reservation made by Canada on 10 May 1994, excluding the Court’s jurisdiction. The Canadian
delegation argued that the dispute referred to in the Spanish Application concerned matters covered
by the reservation, and this thesis was ultimately adopted by the Bench.
6.3 Reasons for Alarm?
159