QUARK FISHING LTD. v. THE UNITED KINGDOM
Inadmissible
The applicant, a Falkland Islands registered company (25.1% owned by island residents and 74.9% owned by Spanish interests), was represented by Mr S.J. Swabey, a solicitor practising in London. South Georgia and the South Sandwich Islands (“SGSSI”) were acquired by the Crown by settlement. There were no indigenous peoples. From 1908 until 1985 it was a British Dependent Territory and a Dependency of the Falkland Islands. After 18 April 1985, SGSSI ceased to be a dependency of the Falkland Islands and became a British Overseas Territory as defined in the British Overseas Territory Act 2002. The United Kingdom is responsible for its international relations. The government of the SGSSI comprises officials from the United Kingdom who are posted to and operate from the Falkland Islands. There is no democratic mechanism. No one lives on the SGSSI apart from a transient group of scientists working for the British Antarctic Survey. The applicant owns a fishing vessel – MV Jacqueline – which operated under a Falkland Islands flag and was specially equipped with long lines to fish the Patagonian toothfish, found in the waters of the SGSSI. Fishing in SGSSI waters is regulated pursuant to the Convention on the Conservation of Antarctic Marine 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. The coastal State countries enforce those limits. In the case of the SGSSI, the relevant coastal State is the United Kingdom. From 1997 it operated a licensing system which limited the amount of fish caught by each licensed vessel. The Jacqueline was granted a licence for every year from 1997 until 2001. In that year the applicant sought a licence as usual but was refused by the SGSSI authorities. It was unaware of the reasons. The applicant 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. But for this intervention, the SGSSI Director of Fisheries would have given a licence to the applicant. By an order of 1 June 2001, the Chief Justice declared that the SGSSI decision, taken on advice from the FCO and not pursuant to an instruction within the meaning of the SGSSI Order 1985 (SI 1985/449, which forms the constitution of the territory), was not properly based on relevant matters to be taken into account and accordingly was unlawful. He ordered that the application be remitted for fresh consideration. On 7 June 2001 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 any United Kingdom flagged vessel, other than to two vessels named in the instruction (which did not include the applicant’s). The applicant challenged the lawfulness of the instruction in the High Court in London. On 5 December 2001 the High Court judge found, noting the flawed basis on which the FCO had taken the view that the applicant had not complied with conservation measures, 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 unlawful and quashed. On 30 October 2002 the Court of Appeal upheld the lower court’s decision, making adverse comment on the way the authorities had acted. The applicant had sought damages for the losses from the 2001 season and this claim, stayed during the earlier proceedings, was revived, relying on Article 1 of Protocol No. 1. On 22 July 2003 Mr Justice Collins struck out the claim for damages, accepting the argument of the Secretary of State that Protocol No. 1 had not been extended to the SGSSI. On 29 April 2004 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 – which had founded the extraterritorial reach of the European Convention of Human Rights in other circumstances – 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. On 13 October 2005 the House of Lords dismissed the applicant’s appeal, also finding that Article 1 of Protocol No. 1 did not apply to the SGSSI.