Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp.
Date: 1992-11-24
9 As a preliminary point, it must be observed, first, that the European Community must respect international law in the exercise of its powers and that, consequently, Article 6 abovementioned must be interpreted, and its scope limited, in the light of the relevant rules of the international law of the sea.
10 In this connexion, account must be taken of the Geneva Conventions of 29 April 1958 on the Territorial Sea and the Contiguous Zone (United Nations Treaty Series, vol. 516, p. 205), on the High Seas (United Nations Treaty Series, vol. 450, p. 11) and on Fishing and Conservation of the Living Resources of the High Seas (United Nations Treaty Series, vol. 559, p. 285), in so far as they codify general rules recognized by international custom, and also of the United Nations Convention of 10 December 1982 on the Law of the Sea (Third Conference of the United Nations on the Law of the Sea ° Official Documents, vol. XVII, 1984, Document A/Conf. 62/122 and corrections, hereinafter "the United Nations Convention on the Law of the Sea"). It has not entered into force, but many of its provisions are considered to express the current state of customary international maritime law (see judgments of the International Court of Justice in the Delimitation of the Maritime Boundary in the Gulf of Maine Region Case, Canada v United States of America, ICJ [1984], p. 294, paragraph 94; Continental Shelf Case, Libyan Arab Jamahiriya v Malta, ICJ [1985], p. 30, paragraph 27; Military and Paramilitary Activity in and against Nicaragua Case, Nicaragua v United States of America, substantive issues, ICJ [1986], p. 111-112, paragraphs 212 and 214).
11 The object of the prohibition in question is to conserve protected species. Its basis is to be found in particular in a multilateral convention signed by the European Community in 1982, that is the Convention for the Conservation of Salmon in the North Atlantic (OJ 1982 L 378, p. 25), which prohibits fishing for salmon beyond the limits of the zones of fisheries jurisdiction of the coastal States. That Convention meets the obligation of all members of the international community to cooperate in conserving and managing the living resources of the high seas, as provided for by Article 118 of the United Nations Convention on the Law of the Sea. Moreover, Article 6 of the Geneva Convention of 29 April 1958 on Fishing and Conservation of the Living Resources of the High Seas recognizes the interest of coastal States in the living resources in the part of the high sea adjacent to the waters within their jurisdiction. In the light of the aims of the prohibition laid down in Article 6(1)(b) of the Regulation, this provision must be interpreted so as to give it the greatest practical effect, within the limits of international law.
Nationality of the vessel
13 In answer to that question, under international law a vessel in principle has only one nationality, that of the State in which it is registered (see in particular Articles 5 and 6 of the Geneva Convention on the High Seas of 29 April 1958 and Articles 91 and 92 of the United Nations Convention on the Law of the Sea).
14 It follows that a Member State may not treat a vessel which is already registered in a non-member country and therefore has the nationality of that country as a vessel flying the flag of that Member State.
15 The fact that the sole link between a vessel and the State of which it holds the nationality is the administrative formality of registration cannot prevent the application of that rule. It was for the State that conferred its nationality in the first place to determine at its absolute discretion the conditions on which it would grant its nationality (see in particular Article 5 of the Geneva Convention on the High Seas of 29 April 1958 and also Article 91 of the United Nations Convention on the Law of the Sea).
18 In that connection, it must be emphasized that the law governing the crew' s activities does not depend on the nationality of the crew members, but on the State in which the vessel is registered and, where appropriate, the sea area in which the boat is located.
20 Consequently, the answer to the first question must be that Article 6(1)(b) of Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources, may not be applied to the master and other crew members qua nationals of a Member State, irrespective of the State in which the vessel is registered and the sea area in which the vessel is located.
Applicability of Article 6 in different sea areas
22 In answer to that question, the abovementioned provision may not be applied to a vessel on the high seas registered in a non-member country, since in principle such a vessel is there governed only by the law of its flag.
23 It is true that in 1982 the European Community signed the abovementioned Convention for the Conservation of Salmon in the North Atlantic. However, that Convention may not be invoked against non-signatory States and cannot, therefore, be applied to vessels registered in those States.
24 As far as the other sea areas are concerned, the Community has the power to adopt rules classifying as illegal the transport and storage in the exclusive economic zone, the territorial sea, inland waters and ports of the Member States of salmon caught within the regions referred to in Article 6(1)(b) of the Regulation.
25 However, the jurisdiction of the coastal State in some of those areas is not absolute. Thus, although the territorial sea falls under the sovereignty of the coastal State, the latter must respect the right of innocent passage through it of vessels flying the flag of other States (Articles 14 to 23 of the Geneva Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958; Articles 17 to 32 of the United Nations Convention on the Law of the Sea). As far as the exclusive economic zone is concerned, the coastal State must in exercising its powers observe in particular freedom of navigation (see Article 58(1) of the United Nations Convention on the Law of the Sea).
26 It follows that Community legislation may not be applied in respect of a vessel registered in a non-member country and sailing in the exclusive economic zone of a Member State, since that vessel enjoys freedom of navigation in that area.
27 Nor may it be applied in respect of such a vessel crossing the territorial waters of a Member State in so far as the vessel is exercising the right of innocent passage in those waters.
28 Conversely, Community legislation may be applied to it when it sails in the inland waters or, more especially, is in a port of a Member State, where it is generally subject to the unlimited jurisdiction of that State.
29 For those reasons, the answer to the fourth question must be that Article 6(1)(b) of Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources may in principle be applied to a vessel registered in a non-member country only when that vessel is in the inland waters or in the port of a Member State.
Confiscation of the cargo