Spain v. Canada

In Fish Cases, Miscellaneous, Offences on (Updated )

This case involved the seizure of the Spanish fishing vessel "Estai" while fishing on the high seas pursuant to the provisions of the Coastal Fisheries Protection Act. By way of background information, in 1995, the North Atlantic Fisheries Organization (N.A.F.O). set a total allowable catch for turbot which was roughly one half of the previous years catch and assigned 60% per cent of the catch to Canada and only 12% to the European Community. In response, the European Community invoked the N.A.F.O. objection procedure and unilaterally set its own quota at 69% of the total allowable catch. Consequently, on March 3, 1995 Canada amended its Coastal Fisheries Protection Regulations to make it an offence for Spain and Portugal to fish for turbot on the nose and tail of the Grand Banks which are outside of Canada’s 200 fishing zone. On the same day, Canada deposited a new reservation to its general acceptance of the jurisdiction of the International Court of Justice excluding from the Court’s jurisdiction "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area . . . and the enforcement of such measures." On March 5, 1995 Canada issued a radio warning to European Community fishing vessels that they had fished enough and would be subject to seizure if they continued. On March 9, 1995, after warning shots were fired, the Spanish fishing vessel "Estai’ which was fishing on the nose of the Grand Banks, was boarded and seized. After the posting of a substantial bail, both the vessel and its crew were eventually released.

As a result of the seizure, Spain filed an application with the International Court of Justice against Canada claiming it had interfered with the rights of its vessel’s to navigate on the high seas and had also infringed the right of exclusive jurisdiction of the flag state over its ships on the high seas. Canada then immediately filed an objection to the application on the basis that the court was without jurisdiction because of the terms of the reservation filed by Canada.

Despite the fact the dispute between Spain and Canada was substantially settled in May of 1995, the case continued. With the agreement of the parties, the first phase of the case was limited to the issue of the courts jurisdiction.

In a majority decision (12-5) which analyzed both the wording and purpose of Canada’s reservation in great depth, the court ruled that it did not have jurisdiction to hear Spain’s case.

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