| Return to Contents The Channel Islands' Position In International Law Richard Plender QC Since international law is the law applying in then sovereign States and international organizations [1], the Channel Islands have, formally speaking, no independent status or position in international law. Although not normally listed by the Foreign and Commonwealth Office as part of the ’s "dependent territories" [2], they are part of the territories for which the United Kingdom is internatioponsible [3] . This is not a modern development. While it is possible to find instances in the islands’ history when Lords of the Islands or bailiffs concluded dealings with foreign sovereigns, those events were exceptional. Since Plantagenet times, Kings of England have asserted and exercised the right to deal with foreign sovereigns about the Channel Islands, which had come to be termed, in the fifteenth century, part of the dominia transmarina. Nowadays it is the United Kingdom which bears responsibility for the conclusion of treaties binding upon her in respect of the territory comprising the two bailiwicks. The United Kingdom represents the interests of the islands in organizations governed by public international law. The United Kingdom is alone competent to determine the extent of the marine jurisdiction claimed in respect of the islands. Nevertheless, the islands’ special constitutional history has made it necessary to adapt a number of international practices when the United Kingdom enters into engagements affecting the Channel Islands. In this article I shall identify three aspects of international practice which are of current concern: treaties, international organizations and fisheries. Treaties The proposition that the Channel Islands cannoo treaties [4] in their own name is so well established that it may be a source of surprise that the makinverse submission in the Court of Appeal led to decisive authority on the subject in 1989 [5] . The point arose in connection with the "CMention on the Contract for the International Carriage of Goods by Road [6] . The defendant was a road haulage company incorporated in Jersey. It contracted to carry a load of chloride batteries from the first plaintiff’s premises in Manchester to the premises of a consignee on the island, the second plaintiff. In the course of the journey the batteries were destroyed by fire. If the proceedings were brought in Jersey, the defendant would have been entitled to rely on exemption clauses in the contract. If, however, the CMR Convention were applicable, it would have prevented the defendant from relying on those exemption clauses. Article 1 of the Convention deals with its area of application. It provides: "The Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country, irrespective of the place of residence and nationality of the parties". The English Court of Appeal held that in this context the word "countries" meant "States". That was clear from the composite phrase "two different countries, of which at least one is a Contracting country". Jersey was not a State nor capable of being a Contracting country. Accordingly the Convention did not apply to the carriage of goods between England and Jersey. The problem of determining whether an international treaty engagement, entered into by the United Kingdom, applies in respect of the islands, is among the most recurrent of the questions facing them. The difficulty is capable of arising in relation to any treaty - of which there are very many - which applies territorially but fails to specify whether or not it applies to the Channel Islands. The Channel Islands are by no means alone in being confronted by the problem of determining whether a treaty applies in respect of the territory of a dependent or subordinate authority. Nor are they alone in having to reconcile the subordinate authority’s exclusive jurisdiction in respect of defined domestic matters with the sovereign State’s power to enter into international engagements in respect of the dependent territory. This problem is frequently encountered in federal States. It w, for instance, at the centre of a leading Australian constitutional case in 1983 Commonwealth v Tasmania (The Franklin Dam Case) [7] . The problem has been exacerbated in recent years by the growth of international regulation and by a development in customary international law, now reflected in Article 29 of the Vienna ntion on the Law of Treaties [8] . Following the conclusion of the the Organization for European Economic Cooperation and Development in 1948 [9] ("the O.E.E.C. Convention") it became apparent that uncertainty could arise as to the territorial application of treaties ratified simply by "the United Kingdom of Great Britain and Northern Ireland", even where they were intended to apply only within Europe. The O.E.E.C. Convention was ratified by the United Kingdom, without indication as to its territorial application. Shortly thereafter the United Kingdom and the United States concluded an exchange of notes governing the application of the O.E.E.C. Convention, essentially for the provision oll Aid [10] ("the U.S.-U.K. Agreement"). Again there was no territorial application clause. The U.S.- U.K. Agreement was modified by ex of notes, particularly one dated January 3rd, 1950 [11] . Uncertainty as to whether the O.E.E.C. Convention and the U.S. - U.K. Agreement applied to the Channel islands persisted at least until May 14th, 1955, when the United States confirmed that the U. Agreement applied to the Islands [12] . Similar difficulties arose in relation to other international agreements. In view of these uncertainties the Foreign Office made the followiclaration in 1950 [13] : "any treaty or international agreement to which His Majesty’s Government in the United Kingdom may become a party after the date of the present despatch will not be considered as applying to the Channel Islands or Isle of Man by reason only of the fact that it applies to the United Kingdom of Great Britain and Northern Ireland, and any signature, ratification, acceptance or accession on behalf of the United Kingdom will not extend to the Islands unless they are expressly included. For the purposes of any treaty or international agreement to which His Majesty’s Government may become a party hereafter, the Channel Islands and the Isle of Man will, unless the contrary is expressly stated in each case, be included among the territories for whose international relations His Majesty’s Government are responsible." That declaration was formally reported to the States by letter dated March 8th, 1951. That letter, and the declaration to which it referred, reflected the constitutional convention whereby the United Kingdom does not legislate for the islands without their consent in matters of domestic concern; and the practice whereby the insular authorities are consulted before an international agreement is reached which applies to the islands. Shortly the Home Office wrote to the insular authorities a letter which qualified the 1950 Declaration in point of detail, while retaining its substance [14] . In the early 1960's the position of the Channel Islands, in this respect, was affected by the movement for de-colonialism. The International Law Commission, working in 1962 on the Draft Articles in the Law of Treaties, set out to avoid framing an operative rule on the territorial application of treaties in a form likely to be associated with the "colonial application clause" whereby treaties were said to apply only to the metropories of the contracting parties, unless specifically extended to named dependencies [15] . The Commission proposed instead that there should be a presumption that treaties apply to the whole of the territories for the international relations of which a State is responsible. This proposal was later to mature into Article 69 of the Vienna Convention on the Law of Treaties. Under the influence of this proposal, and contemporary distaste for "colonial application" clauses generally, difficulties arose over the application to the islands of international agreements which were silent as to their territorial scope. This led the Home Office to write to the Lieutenant Governor of Guernsey, on February 3rd 1961 in the following terms: "The extent of territorial application of an international agreement is a matter to be determined by the agreement itself in accordance with the decisions at the negotiations; it may be shown expressly, by specifying the territories in relation to which a contracting party is to be bound, or by implication. The decision conveyed in the letter of March 8th, 1951 did not change and could not have changed the rule of international law under which the signature, ratification or accession of any State to an international agreement is presumed to be in respect not only of the State itself but of all the territories for whose international relations it is responsible, unless this presumption is displaced by the wording of the agreement itself or by necessary implication ... The position then is that the United Kingdom’s acceptance of agreements containing no indication of limited territorial application binds all the United Kingdom’s dependent territories, including the Channel Islands and the Isle of Man. Before concluding such agreements, however, Her Majesty’s Government will always endeavour to discuss the implications as fully as possible with the Insular Authorities." Although that letter reversed the policy announced by the declaration made in 1950, its effect was only to assert that the presumption to be applied in interpreting treaties was to be the converse of that previously declared. In future, where an agreement was silent as to its territorial application, it would be presumed to apply to the Channel Islands unless the contrary intention appeared from the text. The presumption, it must be added, is rebuttable. In the words of the Australian delegate, when debating within the International Law Commission the text that matured into Article 29 of the Vienna Convention: "Article [29] is only a residual rule of interpretation, and cannot in any way be construed as a norm requiring a State to express its consent to be bound by treaties without first establishing whether the treaty is acceptable and applicable in all the nent parts of the State. That will continue to be a matter for international law and practice" [16] . In Case 32/79, Commission v Ungdom [17], the Commission of the European Communities applied, in relation to the Isle of Man, the presumption that treaties extend to the whole of the territories for the international relations of which the United Kingdom is responsible. In doing so the Commission indicated that it was well aware that the rule is by no means inflexible; and that the outcome in each case depends on the ascertainment of the intentions of the authors. The point at issue was whether Community measures relating to conservation of fisheries applied in Manx waters. To that question Protocol No 3 to the United Kingdom’s Act of Accession yielded no clear answer. The United Kingdom drew attention to the special constitutional position of the Isle of Man and argued that on the proper interpretation of Protocol No 3, only the provisions relating to the free movement of goods are applicable in relation to the Isle of Man so that measures adopted by the Community in relation to the protection of fish stocks do not extend to that territory and to the waters subject to its jurisdiction. The Commission responded that: "In view of the close link as regards fisheries between the organization of the market and structural measures ... Protocol No 3 must be interpreted as meaning that the conservation measures adopted by the Community are also applicable to Isle of Man waters". However the Court of Justice avoided dealing with the issue. While at the international level the problem is commonly one of determining whether a treaty applies to the Channel Islands, at the domestic level the problem is that of securing appropriate participation by the insular authorities in the negotiation of a text designed to apply to either or both of the bailiwicks. The Home Office statement of 1961 says nothing about the insular authorities’ participation in negotiating teams (although from time to time this has been achieved). It does however contain an undertaking that the Government of the United Kingdom "will always endeavour to discuss the implications as fully as possible with the Insular Authorities". That policy is invariably followed. Nevertheless, difficulties remain. An example of such a difficulty arose in 1967 in relation to the Isle of Man (whose status is similar, for present purposes, to that of the two bailiwicks). The point at issue was the Marine (ecasting (Offences) Act, an enactment designed to give effect to the European Agreement for the Prevention of Broadcasts transmitted from Stations Outside National Territories [18] . The Manx authorities took the view that it was for the insular authorities to enact any legislation that might be necessary to give effect to the Agreement; and a Bill designed for that purpose was presented to the Tynwald but defeated on second reading in the House of Keys. In these circumstances the Government of the Unitom made use of a provision in the 1967 Act [19] providing for its extension to the Isle of Marder in Council [20] . Tynwald complained to the Privy Council that by bringing about a change in the criminal law of the island, without its consent, the United Kincted in breach of constitutional convention [21] . The circumstances of the case were exception Kilbrandon Report [22] itself observes, "the issue of broadcasting is in many we" [23] since radio signals emitted from one small territory can, almost invariably, be received in others, where they may constitute a nuisance. Through the International Telecommunications Union a limited number of radio frequencies are allocated to the United Kingdom for the British Islands as a whole. Moreover although the European Agreement for the Prevention of Broadcasts transmitted from Stations Outside National Territories permits contracting parties to specify the territories to which lies [24] it would have been embarrassing to make use of that provision so as to exclude the Isle of Man, since the United Kingdom had taken a leading part in promoting the Agreement, with the issue of Radio Caroline in mind. It was well known that this station was operated from a vessel supplied and serviced in the Isle of Man; so that the exercise of the United Kingdom’s power to refrain from applying the Agreement to the Isle of Man might have called in question her good faith. Further, the United Kingdom had conducted at least the latter part of the negotiations in the expectation, arising from discussions with the insular authorities, that the House of Keys would adopt the insular legislation proposed to it. To these considerations there may be added the fact that Parliament had a purely domestic interest in seeking to put an end to broadcasts directed principally at the United Kingdom from a vessel supplied and serviced in the Isle of Man. The episode cannot be taken to show that there is any general rule whereby the Government of the United Kingdom can, by concluding an international engagement, set aside the constitutional convention whereby Parliament refrains from legislating for the Channel Islands, in respect of any domestic matter forming the subject of that agreement. It is not possible to define exhaustively and precisely the circumstances in which it would be contrary to constitutional convention for Parliament to legislate for the islands without their consent in order to give effect to an international agreement; for in each case this involves an element of political judgment. Lord Kilbrandon’s committee, while reaffirming the convention restraining Parliament from legislating for the islands without their consent on domatters [25] added the following qualification: "It is the practice for the insular authorities to be consulted before an international agreement is reached which would apply to them. This is particularly necessary in any case in which application of the agreement to the Islands would require islation of a kind which would ordinarily be enacted in the island legislatures" [26] . The Kilbrandon Report added, however, that whereks to be excluded from the application of an international convention, or for special terms, its claim must be "reasonable in all the circumstances" [27] : a proposition with which it would be difficult to dissent. In my view, it is possible to go further. A significant step was taken towards clarification of the position of the bailiwicks, in relation to treaties, when the Legal Advisers to the Foreign and Commonwealth Office communicated to the insular authorities their Memorandum dated 1993 on the application of treaties to Crown encies [28] . This records, in particular, that the Home Office, the Foreign and Commonwealth Office and the Cabinet Office (in respect of European treaties) all have standard operating procedures according to which the Crown Dependencies are to be consulted at an early stage about any treaty which is under negotiation and which is to apply, or is capable of being applied, in respect of the United Kingdom’s non-metropolitan territory. The object of the consultation is to ascertain whether there are particular considerations in respect of any Crown dependency which need to be taken into account in the text of a treaty, as well as to ascertain whether or not each Crown dependency wreaty to apply to it [29] . The Memorandum refrains from stating that a treaty will never be applied to an island contrary to the wishes of the insular authorities; but formally records the existence of a long-standing practice of consultation. The settled practice, whereby the islands are to be consulted before the United Kingdom enters into any international engagement which falls to be implemented in the islands, so as to affect persons or property there, appears to have matured into a constitutional convention, and is an any event an adjunct to one. If the insular authorities (acting reasonably) object to the assumption of such an engagement in respect of the islands, or call for special terms, the United Kingdom must seek to ensure in the course of negotiations that the application of the agreement to the islands is excluded by a suitable territorial application clause or that special terms are obtained, even though this may complicate the Uniom’s negotiations [30] . If the emerging agreement is one that the Government of the United Kingdom wishes to sign and ratify, in the wider interest, notwithstanding the fact that it may contain terms that the insular authorities would not have accepted had they been a sovereign State, the islands’ authorities must take such steps as may be appropriate to ensure that there shall be no breach of the international obligation assumed on behalf of those territories by the sovereign. Only if they fail to do so (or in other very exceptional circumstances) will it be consonant with constitutional convention for the Parliament to adopt unilaterally legislation applying to the islands on a matter which would have been domestic, but for the conclusion of the international agreement. Participation in International Organizations Just as the conclusion of treaties is in principle a matter for sovereign States, so the same is true of participation in international organizations. Different considerations apply in the case of the relatively informal arrangements made within the Commonwealth. The States of Jersey and of Guernsey are formally represented in the Commonwealth Parliamentary Association. Founded in 1911 as the Empire Parliamentary Association, this body was renamed the Commonwealth Parliamentary Association and acquired a general council in 1949 and now encompasses approximately 140 national and state or provincial parliaments. It aims to provide a forum for the discussion of matters of common parliamentary interest; to disseminate information on parliamentary institutions and spread knowledge of constitutional, legislative, economic, social and cultural issues. Jersey and Guernsey are also separately represented in the Commonwealth Games Federation (both have Commonwealth medalists for shooting). The Channel Islands’ Law Officers attend meetings of Ministers of Law and Attorneys General of small Commonwealth jurisdictions. In particular, both islands were represented at their sixth Meeting of this informally-constituted body, in Barbados from July 28th to August 1st, 1997, where the principal subjects of discussion were the environment and world trade. On the former issue, delegates expressed concern about the need for early notice of trans-shipment as well as the potential deleterious effects this would have on their surrounding marine environment, especially those countries within semi-enclosed seas, which also depended on activities such as fisheries and tourism as vital sources of income. On the latter, they indicated their concern about the difficulties encountered by small States in complying with agreements concluded under the aegis of the World Trade Organization, particularly the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Channel Islands do not participate directly in the work of the World Trade Organization; but in common with other small jurisdictions they are liable to be radically affected by it. Indeed, the Channel Islands have a special propensity to be affected by that Organization and by agreements concluded under its aegis since the islands are subject to certain rules of Community law including those governing customs matters and quantiictions [31] . It is by no means easy to determine the extent to which that expression embraces rules applied pursuant to certain of the agreements ratified by the European Community pursuant to the World Trade Organization. It is established, however, that the European Community has sole competence, pursuant to Article 113 of the EC Treaty, to conclude multilateral agreements on trade in goods, under the aegis of that body; and that the Community is jointly competent with the Mem to conclude the General Agreement on Trade in Services and the TRIPS Agreement [32] . The Agreement establishing the World Trade Organization was approved by Council Decision 94/800/EC of December 22nd, 1994 [33] and thrmally incorporated into Community law. The European Court has indicated that some, at least, of the provisions laid down by agreements concluded under the aegis of the World Trade Organization constitute rules governing the removal of quantitative restrictions on trade, including trade between Member States. That appears, for instance from the ruling given in response to a request from the Hoge Raad in Case C-316/95. Generics BV rench Laboratories [34], where the point at issue was the TRIPS Agreement. While some aspects of TRIPS are concerned with the promotion of free trade in services and are therefore inapplicable to the Channel Islands, others relate to the removal of obstacles to trade in goods and thus appear in principle applicable. The TRIPS Agreement, which came into effect on January 1st, 1995, is a part of the Marrakesh Agreement establishing the World Trade Organization, and joined to date rs [35] . It is the most comprehensive multilateral agreement on intellectual property. It establishes substantially higher standards of protection for a full range of industrial property rights than are embodied in current international agreements such as the Paris Conventioal property (patents, trademarks and trade secrets) [36] or the Berne Convention for copyrights [37] . The intrty rights covered by the TRIPS Agreement are: copyrights, patents, trademarks, industrial designs, trade secrets (undisclosed information), integrated circuits (semiconductors), and geographical indications. In the area of copyrights, the TRIPS Agreement e parties to comply with provisions of the Berne Convention, except for that Convention's requirements on moral rights [38] ; protects computer programs as literary works and databases as compilations under copyright; imposes an immediate obligation on parties to grant owners of computer programs and sound recordings the right to authorize or prohibit the rental of their products; establishes a 50-year term for protection of sound recordings, as well as requiring signatories to provide protection for existing sound recordings and sets a minimum 50-year term for protection of motion pictures and other works where companies may be the author. In the area of patents, the TRIPS Agreement requires parties to protect product and process patents for virtually all types of inventions, including pharmaceuticals and agricultural chemicals; establishes a patent term of 20 years from the date the application is filed; requires prompt implementation of procedures to permit the filing of patent applications covering pharmaceuticals and agricultural chemicals upon entry into force of the agreement; and sets limits on the use of compulsory licensing, a method by which a government can compel a patent holder to license the patent to someone else. Limits include that such licensing be restricted to the purpose for which authorized and that the patent owner receive adequate remuneration. In the area of trademarks, the TRIPS Agreement requires parties to register service marks as well as trademarks; enhances protection for internationally well-known marks; prohibits the mandatory linking of trademarks; and prohibits the compulsory licensing of marks. In other areas, the TRIPS Agreement provides rules for protecting trade secrets that enable owners to prevent unauthorized use or disclosure of confidential information; and protects non-generic geographical indications used to identify wines and spirits. For example, it seems that once it is in force in relation to the Channel Islands, TRIPS would protect the name "Jersey Royal" so that it may be used to describe only those potatoes grown on the island; and the name "Guernsey Tom", so that it may be used to describe only those tomatoes grown on Guernsey; but it would not go so far as to prohibit the use of the word "jersey" to describe knitwear produced outside the island. The TRIPS Agreement contains obligations to provide effective enforcement for industrial property rights both internally and at the borders. Parties are required to provide "expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements." The Agreement requires that rights holders have access to civil and administrative procedures and includes provisions on injunctions, damages and obtaining evidence. It also provides for criminal procedures "at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale." Disputes involving the TRIPS Agreement or other aspects of the Uruguay Round Agreement will be handled by the General Council of the World Trade Organization, acting as the Dispute Settlement Body. If a dispute settlement panel finds that a Contracting State has made provision for inadequate protection or enforcement, the complainant will have the right to retaliate in other sectors. There is, however, a five-ye in the use of integrated dispute settlement procedures for disputes involving indirect violations of the TRIPS Agreement [39] . It appears inevitable that both bailiwicks of the Channel Islands will have to adopt legislation to secure the application of the TRIPS Agreement, in so far as it has a bearing upon the free movement of goods. It is understood that the States have already put in hand proposals to apply locally legislation akin to the United Kingdom’s Copyright Act 1988. Of the other international organizations in which the United Kingdom participates, the one whose current activities are of special interest to the Channel Islands is the Organization for Economic Cooperation and Development (OECD) In recent years the OECD has set out to discourage the maintenance of "tax havens". According to the Organization: "In this age of global markets, some governments have attempted to attract mobile activity and investment by offering preferential tax treatment ... this has had the negative result of encouraging tax havens and destructive tax practices." The OECD issued in 1997 certain "Guidelines on Harmful P Tax Regimes" [40], encouraging governments to curb such practices. The Secretariat of the Organiza an Ad Hoc Group of Experts to examine the question. Earlier this year the Ad Hoc Group published its Final Report [41] . This identified five characteristics that might be found in tax havens: low or zero effective tax rates; an unwillingness to make information available; a lack of transparency; no requirement that real business activity be carried on; and in the case of a haven regime within a country with an otherwise acceptable tax system, a separation of the special regime from the domestic economy (a "ring fence"). The Secretariat of the OECD has drawn up a provisional list of tax havens which, it is understood, includes the Channel Islands. The inuthorities and the United Kingdom are, at this stage, confronted with the diplomatic task of persuading the Secretariat that the Islands’ inclusion in the provisional list should not be retained in the definitive list expected to emerge in 1999 [42] . Fisheries No issue arising in public international law is more pressing in the Channel Islands today than the question of fisheries. Historically the demarcation of the respective fisheries jurisdictions of the Channel Islands and of France have been regulated by bilateral treaties, concluded between the United Kingdom and France, the insular authorities being actively involved in the negotiations conducted on the islands’ behahe former. Chief of these bilateral treaties are the Convention of August 2nd, 1839 [43], the Agreement of January 30th, 1951 [44] and the Exf Notes dated 9th pril 10th, 1964 [45] governing fisheries ("the old agreements"). In recent years, the efficacy of these treaties has been called in question, partly by disputes as to their application in certain localities and partly by uncertainties as to the effects of European Community law. Of the local disputes, the most famous, for intnal lawyers, is that concerning the Ecréhos and Minquiers, which was referred by Special Agreement to the International Court of Justice for adjudication [46] . The Court unanimously upheld the United Kingdom’s claim to sovereignty over the islets, while declaring it unnecessary to pronounce upon historical controversies antedating 1204! More recently, local difficulties have arisen particularly in relation to the Gulf of Granville. The most pressing of the issues presehe uncertainties as to the effects of European Community law is the question whether insular legislation governing fishery conservation [47] can be enforced against French fishermen in the islands’ territorial sea. That depends on the question whether the insular authorities have lost their capacity to regulate fishery conservation in their waters, in consequence of the United Kingdom’s accession to the Community. Simply stated, the question is whether the Community’s fishery regime applies in the islands’ waters. If it does, the old agreements must be taken to be superseded, to the extent that they are incompatible with the Community’s regime. ows from Article 30(3) of the Vienna Convention on the Law of Treaties [48] which provides that "When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty". Protocol No 3 to the United Kingdom’s Act of Accession is far from pellucid on that issue. In derogation from Article 227(5) of the Treaty, which provides that Community law shall be inapplicable to the islands save to the extent necessary to secure the implementation of the special arrangements made in relation to them, Protocol No 3 provides for the application of "such provisions of Community rules ... as to allow free movement and observance of normal conditions of trade in [agricultural and fishery products]" [49] . On a literal reading, the words "normal conditions oenote quality and marketing standards [50] rather than access and conservation. Had it been the intention of the draftsmen to apply to the islands the whole of the Common Fisheries Policy (or Common Agricultural Policy) other than the rules concerning financial aid, Protocol 3 could have been drafted much more simply. The effect of the last paragraph of Article 1(2) of Protocol 3 is as follows. The "Community rules necessary to allow free movement and the observance of normal conditions of competition in trade" in these products are set out exhaustively in the special regulation, dating from 1973, whi trade in agricultural products between the Community and the Channel Islands and Isle of Man [51] . The rules there designated relate to ting standards, not access and conservation [52] . Furthermore, rules governing the "normal conditions of competition" apply to trade in fishery products whereas the "quality and marketing standards" in the Regulation of 1973 apply to imports and exports of fish. The implication is that these matters do not apply to fishery products landed in the Channel Islands which are not exported. If the expression "normal conditions of competition" were taken to include European Community rules on access and conservation, those rules would apply to fish caught by Channel Island vessels and exported but would not apply to fishery products landed for consumption in the Channel Islands. This would be unworkable, not to say absurd. On the other hand, a workable distinction can be drawn between quality and marketing standards and other rules. The former rules are essentiarned with the size and freshness of fish [53] . It is true that in Case 32/79, Commission d Kingdom [54] the Court of Justice of the European Communitiesfound that in adopting a measure relating to conservation of fish stocks in Manx waters, the United Kingdom acted in breach of European Community rules on non-discrimination and on consultation with the Commission. The decision is, however, based on the proposition that the United Kingdom must take responsibility for measures that it had adopted. That does not imply that the common fisheries regime applies to Manx waters, still less that the enactment of legislation even by the United Kingdom’s authorities brings those waters within it. Legislation extending the maritime jurisdiction of dependent territories of certain Member States which unambiguously fall outside the Common Fisheries Policy has been enacted by the metropolitan authorities and not the local authorities. This is the case with the 200-mng zone of the Faroes [55] and the 200-mile exclusive economic zones of New Caledonia, French Poly French Southern territory, Wallis and Futuna, various French islands in the Indian Ocean and Clipperton Island [56] . In these cases there has been no suggestion that the enactment of the legislation by the metropolitan power brings the dependent territory concerned within the ambit of the Common Fisheries Policy. The Faroes, in particular, are treated just like any other non-European Community Member State as far as fisheries are concerned. There is some practice by the European Community institu suggests that they appear to assume that Protocol 3 has extended European Community rules on access and conservation to the Channel Islands and the Isle of Man. One of the short-term conservation measures of the late 1970s - Council Regulation 1779/77 [57] - applied to the waters around the Isle of Man. This is the only European Community conservation measure to apply specifically to Manx or Channel Island waters. Other regulations usually apply simply to "waters coming under the sovereignty or within the jurisdiction" of Member States. Against that, there are examples of practice which suggest that the European Community institutions do not regard the Channel Islands and Isle of Man as covered by European Community access and conservation measures. An Council Regulation 3760/92 establishing a Community System for Fisheries and Aquaculture [58], like its predecessor, Regulation 170/83, identifies the Member States which may fish in the twelve mile zone of each Member State. Under the entry for the United Kingdom there is no mention of the right of French vessels to fish in the six to twelve mile zone off Guernsey or of Belgian, French and Irish vessels to fish in the six to twelve mile zone off the Isle of Man, although these vee such rights under United Kingdom law [59] . The implication must be, therefore, that the Council does not regard the Channel Islands and the Isle of Man as subject to European Community rules on access. The fact that no mention is made of the right of French vessels to fish in the three to twelve mile zone off Jersey is, on its own, equivocal, and this right might fall under the notion of "neighbourhood relations" referred to in Article 6 of the Regulations. In the United Kingdom-France Exchange of Notes ce Activities of Fishermen in the Vicinity of the Channel Islands and the French Coast of the Cotentin Peninsula and, in particular, on the Schole Bank of July 1992 [60], it is provided that the Guernsey authorities will prescribe measures for the twelve mile zone off Guernsey "reflecting the technical conservation and management measures relating to sea fishing made from ti by the European Communities and applicable in ICES Area VIIe" [61] . If European Community rules on conservation applied to Channel Island waters, this provision would be superfluous as such rules, being contained in an European Community Regulation, would apply automatically to these waters without the need for any legislative intervention by the Guernsey (or for that matter the British) authorities. Indeed any such intervention would be illegal under Community law. As far as I am aware, the Commission has not objected to the Exchange of Notes. Thus, the practice of the institutions in relation to the aon of the Common Fisheries Policy to the Channel Islands is mixed although the tendency suggests that the institutions have not hitherto considered Channel Island and Manx waters as covered by European Community access and conservation measures [62] . On practical grounds there is much to be said for the proposition that the conservation and management of fisheries in the region would be best achieved by the application of a harmonised regime to the region, rather than separate measures adopted by the authorities of Jersey, Guernsey, and France (together with the European Community in the adjacent waters). That result can be achieved, however, by international cooperation and consultation. It does not require the imposition of a uniform regime. The amendment of the old agreements by new measures, based on public international law, appears to be a more appropriate route than one based upon Community law. Conclusion The privileged position of the Island within the constitution of the United Kingdom is more than a matter of historical interest and sentimental attachment. It is essential for the maintenance of some of the Island’s principal industries. The current state of international affairs presents the Island, however, with a challenge unprecedented in its scale, if not in its nature. At a time of increasing international regulation, there is a tendency to subject ever more numerous and more detailed matters to treaties or to other forms of inter-State regulation. Since foreign affairs are matters for the Crown rather than the insular authorities, it requires both vigilance and ingenuity to ensure that proper account shall be taken of a community of some 85,000 people, when a state of some 55 million engages in forms of cooperation with other sovereign States. One of the central problems ar this area has been addressed in the 1993 Memorandum on the application of treaties to Crown Dependencies [63] ; but this is by no means the final resolution of the problem, as is demonstrated by continuing disputes over the island’s fisheries. It is possible that assistance will shortly come from an unexpected quarter. While the positions of Scotland and of Wales are not comparable with those of the Island, in terms of constitutional law, the creation of assemblies for those parts of the United Kingdom brings into being new legislatures having defined responsibilities for certain domestic matters. In common with the insular authorities, the new legislatures are likely to be concerned to ensure that their prerogatives shall be protected against the Crown, when the latter exercises functions in relation to foreign affairs. The three insular authorities, together with those of the devolved legislatures, share a common interest in ensuring that proper account shall be taken of their concerns in the formulation and application of rules of international law. Richard Plender QC is a specialist legal adviser to the States of Jersey on European Community Law. |
| Footnotes - (Top) [1] - Sir Robert Jennings and Sir Arthur Wat’s International Law, 9th ed., 1992, Vol. I, page 11 [2] - The following are normally limaining British dependent territories: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, Saint Helena, Saint Helena Dependencies (Ascension, Tristan da Cunha), South Georgia and the South Sandwich Islands, Turks and Caicos Islands. [3] - EC Treaty 227(4) [4] - In this context the wor is used in the sense in which it is used in Article 2(1)(a) of the Vienna Convention on the Law of Treaties, May 23rd, 1969, Cmnd. 7964: "an international agreement concluded between States in written form and governed by international law ..." (emphasis added) [5] - Chloride Industrial Batteries Ltd Freight Ltd [1989] 3 All ER 86 [6] - Geneva, May 19th, 1956, Cmnd. 34rated into UK law by the Carriage of Goods by Road Act [7] - (1983) 158 [8] - May 23rd, 1969, Cmnd. 7964. See ern Law of Treaties, 1974, 49-54; Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed., 1973, 87-92 [9] - Paris, December 14th, 196. 1646 [10] - Economic Cooperatient between the United Kingdom and the United States, July 6th, 1948, Cmnd. 7469 [11] - C61 [12] - CIM/2 [13] - Circular No 0018, October 16ted in F de L Bois, A Constitutional History of Jersey, page 269 [14] - Octob51 [15] - Cmnd. 7964. See T.O. Elias, T of Treaties, 1974, page 52 [16] - United Nations Conference on the Law of Treaon, Official Records, page 163 paragraph 57 [17] - [1980] E.C.R. 2403 at 2444, o 43 [18] - Strasbourg, January Cmnd. 3497 [19] - Secti0 [20] - The Marine etc ences) (Isle of Man) Order 1967, SI No 1276 [21] - Reference was made in Pagreement" over this issue: 751 H.C. Deb. col. 518 (Rt Hon Roy Jenkins, Written Answer) [22] - Report of the Royion on the Constitution, 1969 - 1973 [23] - Paragr 455 [24] - Arti [25] - Paragraph 1469, page as been strict adherence to the practice over a very long period, and it is in this sense that it can be said that a constitutional convention has been established whereby Parliament does not legislate for the islands without their consent on domestic matters". See also paragraph 1472, page 445 and paragraph 1513, page 457 [26] - Paragraph 111 [27] - Paragraph 14 [28] - Treaties: Applicatependencies: Presented to the States on June 22nd, 1993 by the Policy and Resources Committee, R.C. 160 [29] - Par 9 [30] - Kilbrandon Re3, page 455 [31] - Protocol No 3 to the United Kct of Accession, Article 1 [32] - Opinion 1/94, [1996] ECR I-5267. For commenee: D. Simon, 9 Europe (December 1994) 1-3; J.H.J. Bourgeois, 4 Revue du marché unique européen (1994)11-24; G. Friden, 4 Annales du droit luxembourgeois (1994) 339-350; E. Vermulst and B. Driessen, 10 Euridica (1994) 3-5; P. Hallström, [1994-95] Juridisk Tidskrift v Stockholms universitet 1037-1043; M.Hilf, [1995] Europäische Zeitschrift fürWirtschaftsrecht 7-8; C. Vilmart, 589-II Propriété industrielle; bulletin documentaire (1995) 92-93; K.S. Eisermann, [1995] Europäische Zeitschrift für Wirtschaftsrecht 331-335; C. Pellisé, [1995] Revista Jurídica de Catalunya 822-827; V. Constantinesco, [1995] Journal du droit international 412-419; J.Auvret-Finck, [1995] Revue trimestrielle de droit européen 322-336; R. Bierwagen, [1995] International Legal Materials 689-693; J. Bourgeois, [1995] Common Market Law Review 763-787; H. Cohen Jehoram, [1995] Informatierecht 123-128; J.Feenstra, [1995] Informatierecht 132-136; M. Hilf, 6 European Journal of International Law 245-259; C. Vilmart, 1995 III Doct. Gazette du Palais 222-227; J. Dutheil de la Rochère, [1995] Revue du Marché Commun 461-470; R. Mahler, [1995] Nederlands tijdschrift voor Europees recht 97-100; J. Martín y Pérez de Nanclares, [1995] Revista de Instituciones Europeas 593-618; J. Hippler Bello, Judith: 89 American Journal of International Law (1995) 772; J.M.I.J. Zijlmans, [1995] Maastricht Journal of European and Comparative Law 405-419; A. Maunu, [1995-II] Legal Issues of European Integration 115-128; [1995] P. Van Nuffel, The Columbia Journal of European Law 338-354; J.H. Jans, [1996] Sociaal-economische Wetgeving 110-113; A. Appella, 45 International and Comparative Law Quarterly (1996) 440-462; J.M. Wallet, [1996-I] La Semaine juridique - édition entreprise 17; C.Vedder,and H.-P. Folz, [1996] European Journal of International Law 131-134; G. Tognazzi, [1996] Diritto comunitario e degli scambi internazionali 75-86; M. Vereecken, [1996] Diritto comunitario e degli scambi internazionali 87-100; N. Emiliou, [1996] European Law Review 294-311; T. Flory and F.-P. Martin, [1996] Cahiers de droit européen 379-400; and F. Mancini [1996] European Community Labour Law: Principles and Perspectives 139-15 [33] - Concerning the Conclusion on European Community, As Regards Matters Within its Competence, of the Agreements Reached in the Uruguay Round Multilateral Negotiations (1986-1994) (OJ 1994 L 336, page 1) [34] - [1997] 29 [35] - TS No 1046 [36] - Paris, 1883, revised most recently by t establishing the World Intellectual Property Organization, Stockholm, Cmnd. 4408 [37] - Berne Convention on ton of Literary and Artistic Works, 1886, revised most recently at Paris, July 25th, 1971, TS No 63 (1990) Cm. 1212 [38] - I.e., inalienable rights of d integrity that cannot be given away by a creator [39] - That is to say, measures r impair benefits of the agreement without being a direct violation of its obligations [40] - 2398041D) [41] - DAFFE/CFA (98) 12 [42] - The subject is examined fully by Col in "Harmful Tax Competition and the Challenges for Jersey" [1999] 3 JL Review pages 22 - 40 [43] - Convention between Great Britair Defining and Regulating the Limits of the Exclusive Rights of the Oyster and Other Fishery on the Coasts of Great Britain and of France, Paris, B.S.P. No 27/983 [44] - Agreement between thf the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic regarding Rights of Fishery in Areas of the Ecréhos and Minquiers, London, T.S. No 4 (1952), Cmd. 8444 [45] - Exchange of Notes between ment of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic concerning the Status of previous Fishery Agreements in relation to the Fisheries Convention, London March 9th to April 10th, T.S. No. 54 (1968), Cmnd. 3690 [46] - I.C.J. R7 [47] - See in particular the SMiscellaneous Provisions) (Jersey) Regulations 1995. [48] - May 23rd, 7964 [49] - A2) [50] - On a less strict readingt of Justice might decide that since the application of European Community rules on access and conservation preclude any distinction between fish landed for Channel Island consumption and fish landed for export such rules should apply to all fish caught by Channel Island vessels [51] - Council Regulation 706/73 of concerning the Community arrangements applicable to the Channel Islands and the Isle of Man for trade in agricultural products, OJ 1973 L68/1 [52] - These are contained in a number f which the principal one is Regulation 103/76, OJ 1976 L20/29, as amended [53] - Some light is shed on the issue be Court of Justice of the European Communities in Case 61/77, Commission v Ireland [1978] ECR 417. In that case the Commission argued that a fishery measure adopted by Ireland for its 200-mile fishing zone (then recently extended) was discriminatory and therefore contravened Council Regulation 101/76 of January 19th, 1976. In response Ireland sought to argue that the reference in the Regulation to its being applicable to the maritime waters of Member States, as described by the laws in force in each Member State, meant that it applied only to those waters which were Irish at the time when the Regulation was adopted, ie. the previous 12-mile zone. Rejecting this contention, the Court of Justice held that the reference in the Regulation to "laws in force" was to the laws in force from time to time during the period of validity of the Regulation. One could therefore argue that by analogy the status of the fisheries off the Channel Islands, particularly in the zone between 3 and 12 miles from the base-line, must be determined by the provisions of national law in force from time to time [54] - [1980] E.C.R. 2403 araphs 41 to 43 [55] - Danish Governme98 of 1976 [56] - French Government De8-142 to 78-149 [57] - OJ 197/4 [58] - OJ /1 [59] - See Statu965 No. 1241 [60] - UKTS 3) [61] - P [62] - Of course, the practice of the Europns is by no means decisive in the interpretation of Community law See, for example Case 43/75, Defrenne v Sabena (No 2), [1976] ECR 455; and more generally the writer's article "The Interpretation of Community Acts by reference to the Intentions of the Authors", 2 Yearbook of European Law (1982) 57 [63] - Treaties: Application to Crown Dd to the States on June 22nd, 1993 by the Policy and Resources Committee, R.C. 160 |