Quark Fishing Ltd v. the United Kingdom (dec.)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 89

September 2006

Quark Fishing Ltd v. the United Kingdom (dec.) - 15305/06

Decision 19.9.2006 [Section IV]

Article 56

Territorial application

Responsibility of the Contracting State not engaged in the absence of a declaration under Article 56 extending Protocol No. 1 to an overseas territory: inadmissible

Article 1

Responsibility of states

Principle that the responsibility of a Contracting State is capable of being engaged outside its national territory where it exercises “effective control” does not replace the system of declarations under Article 56: inadmissible

The applicant owns a fishing vessel which operated under a Falkland Islands flag and was specially equipped to fish the Patagonian tooth fish, found in the waters of the South Georgia and the South Sandwich Islands (“SGSSI”). Fishing in those waters is regulated pursuant to the Convention of the Conservation of Antarctic Living Resources ("CCAMLR") to which the United Kingdom is a party. Annual total allowable catches are set by the CCAMLR Commission to particular designated blocks of ocean. In the case of SGSSI the relevant coastal state enforcing those limits is the United Kingdom. From 1997 it operated a licensing system which limited the amount of fish caught by each licensed vessel. The applicant company’s vessel was granted a licence for every year from 1997 until 2001, when its request was refused by the SGSSI authorities without any reasons being spelled out. The applicant company applied for judicial review of the refusal before the Supreme Court of the Falkland Islands. Evidence was submitted indicating that the Foreign and Commonwealth Office (“FCO”) had intervened in order to reduce the number of United Kingdom flagged vessels receiving licences in favour of vessels from other coastal states to avoid adverse diplomatic repercussions in a sensitive area and had indicated that licences should be given to United Kingdom vessels with the best conservation-compliance record, which in their view excluded the applicant. Had it not been for this intervention the SGSSI Director would have given a licence to the applicant. In June 2001 the Chief Justice declared that the SGSSI decision had not been properly based on relevant matters to be taken into account and accordingly was unlawful. The application was remitted for fresh consideration. Later that month the Secretary of State for the Foreign and Commonwealth Office in London formally instructed the SGSSI Commissioner to instruct the SGSSI Director of Fisheries to allocate licences to two United Kingdom flagged vessels (which did not include the applicant’s).

The applicant challenged the lawfulness of the instruction in the High Court. In December 2001 a High Court judge found that the criteria on which the licences were granted had not been made clear or transparent and there had been manifest unfairness in the way in which the FCO had issued its instructions to exclude the applicant. The instruction was accordingly held to be unlawful and quashed. The Court of Appeal upheld the lower court’s decision. The applicant had sought damages for the losses from the 2001 season and this claim, stayed during the earlier proceedings, was revived, Article 1 of Protocol No. 1 being invoked. The claim for damages was struck out, the justice in question having accepted the argument of the Secretary of State that Protocol No. 1 had not been extended to the SGSSI. The Court of Appeal rejected the applicant’s appeal, finding that the applicant was unable to bring a claim for damages based on Article 1 of Protocol No. 1 because the latter provision had not been extended to the SGSSI by the United Kingdom. It held that the issue of control over territory was not relevant to a case such as that before it, where a declaration had to be made for the provision in question to apply. The House of Lords dismissed the applicant’s appeal.

Before the European Court the applicant company complained of an unlawful interference with its possessions, namely, its entitlement to a licence for fishing, invoking Article 1 of Protocol No.1. The Court noted that the courts in the United Kingdom had been unanimous in finding that the SGSSI was a territory for which the United Kingdom was responsible within the meaning of Article 56 of the Convention. No declaration extending Protocol No. 1 to that territory had been lodged by the United Kingdom. The applicants had sought to rely on Convention case-law indicating that in certain circumstances the responsibility of a Contracting State was capable of being engaged outside its national territory where it exercised effective control. This “effective control” principle does not, however, replace the system of declarations which the Contracting States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible.

The applicants had contended, in addition, that the declarations system set out in Article 56 was outdated, given that it was geared to the colonial systems in the aftermath of the Second World War. The Court agreed that the situation had changed considerably since the time when the Contracting Parties drafted the Convention, including Article 56 (former Article 63). If, however, the Contracting States wish to bring the declarations system to an end, this can only be possible through an amendment to the Convention to which those States agree through signature and ratification. The fact that the United Kingdom had extended the Convention itself to the SGSSI gave no ground for finding that Protocol No. 1 also had to apply or for the Court to require the United Kingdom somehow had to justify its failure to extend that Protocol. There is no obligation under the Convention for any Contracting State to ratify any particular protocol or to give reasons for their decisions in that regard concerning their national jurisdictions. Still less can there be any such obligation as regards the territories falling under the scope of Article 56. In these circumstances, Article 1 of Protocol No. 1 was not applicable and the Court had no jurisdiction to entertain the complaints under this provision: incompatible ratione materia.

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