NOTES
The Protection of Maritime Environment by the
Courts of Third States: Some Difficulties
It is likely that protection of the maritime environment in
general will be undertaken systematically on the international level
within the next decade. In the past, of course, certain measures
have been taken at the international level by co-operation. Such
measures, adopted in treaties, are haphazard and incomplete when
viewed in the light of overall marine protection.’ Unilateral pro-
tection has also been afforded. States have enacted various laws
relating to their territorial seas and fishing zones. The effect of
these laws is to protect the marine environment on a limited geo-
graphical scale. However, the instrument of protection is here
municipal law. Naturally, the permissible extent of such territorial
seas and fishing zones in international law will determine the
possible extent of unilateral maritime environment protection 2
The question of the permissible extent of the territorial sea is,
of course, a subject of much controversy 3 and it arose in a prac-
tical way in a recent case before the Cape Provincial Division of
the Supreme Court of South Africa 4
The relevant facts in the South Atlantic case were as follows.
In 1963, the applicant company was granted sole and exclusive
fishing rights in the territorial waters of Tristan da Cunha, Inac-
1For examples of such measures relating to conservation of the resources
of the high seas and pollution of the high seas, see: D.P. O’Connell, Inter-
national Law, 2nd ed., vol. 2, (Stevens & Sons Ltd., London: 1970), at pp.
648-50, 652.
2 Beyond the territorial sea, fishing zone, and possibly conservation zones
permitted in terms of article 6 of the Convention on Fishing and Conservation
of the Living Resources of High Seas, (Geneva, 1958) 450 U.N.T.S. 11, protec-
tion of the maritime environment would appear to depend primarily on
international law created by international cooperation. It is true, however,
that a state might unilaterally enact extra-territorial environmental measures
for its own nationals or ships.
3The controversy in this respect is probably greater since the Montevideo
Declaration of the Latin American States on the Law of the Sea, 9 I.L.M. 1081
(1970), and the Declaration of Santo Domingo, 11 I.L.M. 892 (1972).
4South Atlantic Islands Development Corp. Ltd. v. Buchan, 1971 (1) S.A.
234 (C).
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[Vol. 19, No. 2
cessible, Nightingale and Gough by the relevant authorities for
Tristan da Cunha. At the time, the territorial waters in question
extended three miles from low-water mark. In 1968, Tristan da
Cunha extended these territorial waters to twelve miles from low-
water mark.5 In the same year, the applicant company was grant-
ed a sole concession to fish in the extended territorial waters. The
respondent’s attitude was that he was at liberty to fish anywhere
beyond three miles from the Tristan Islands and he intended to
fish there. He claimed that the unilateral extension of the terri-
torial sea in 1968 by Tristan da Cunha had no validity in interna-
tional law. Hence the concession was also invalid and the court
should not enforce it. The applicant replied by asserting that as
South Africa had itself claimed a twelve mile exclusive fishing
zone,” it would, as a matter of international law, be estopped from
denying the validity of a similar extension made by another power.7
Thus, a South African court should uphold a claim arising under
such an extension.
The court did not, however, give judgment on this interesting
point of international law because it held, on other grounds, that
it had no jurisdiction to give the relief sought by the applicant.
There would appear to be no doubt that the extension of terri-
torial waters by Tristan da Cunha and the concessions granted to
the applicant were unilateral measures of a conservational nature.
The court here described the applicant’s attitude as follows:
Applicant took a serious view of the threatened poaching of its concession
area since this might have a disastrous effect on the entire fishing
activities at Tristan da Cunha. The islanders of Tristan da Cunha were
solely dependent for a livelihood on the continuance of the business of
the applicant company. There was a fully equipped factory on the island
which had been established by the company at its own expense.8
In a further affidavit, … the general manager … submitted that, if the
Golden Promise were allowed to fish within the concession area, it would
lead to heavy overfishing. The dumping of unground offal would also
have a toxic effect on crayfish. He went on to give details of the con-
5 Tristan da Cunha, Ord. 1 of 1968, enacted by the Legislature of St. Helena.
The Tristan da Cunha islands are a dependency of St. Helena.
I Territorial Waters Act, 87 of 1963 (South Africa), s. 3.
7 See: Michael Akehurst, An Introduction to International Law, (George
Allen & Unwin, London: 1970), at p. 47, who says:
Even writers who require a long time for the development of customary
rules in international law concede that a state will be estopped from
denying a new ‘rule’ if it has acted as if that ‘rule’ were already law…
8 South Atlantic case, op. cit., at pp. 236-37.
19731
NOTES
servation measures adopted by applicant and of the capacity of the
Golden PromiseP
If we view the South Atlantic case from the point of view of
environmental protection, we may make three interesting obser-
vations:
(1) An attempt is made in this case to enforce the marine con-
servational measures of one state in the courts of another state.
(2) The attempted enforcement of such measures is indirect,
in that it is primarily the concession rights which are sought to
be enforced.
(3) The means sought for enforcement is the interdict.0
Here, in effect, two orders were sought (in the alternative):
(a) An order restraining the respondent (who was present in Cape
Town) from sailing from Cape Town on his vessel the Golden
Promise with the purpose of fishing from such vessel within
Tristan territorial waters. The court held that an interdict is
essentially a practical remedy. If it is cast in a form which
will not afford protection to the applicant the court will not
grant it. In the instant case it was sought to interdict an
intention. This was not practical for if the respondent stated
to the Sheriff of the court that he did not intend to fish at
Tristan, the Sheriff must allow him to leave. And further he
might change his mind after leaving Cape Town.”
Though the court couched its judgment in terms of practi-
cality here, it was in fact saying that an interdict such as that
sought would be ineffective and so would not be granted.
(b) An order prohibiting the respondent from fishing in the waters
of Tristan. The court refused to make this order and gave two
reasons for its refusal.
(i) Such an order would be ineffective, in that the court could
not enforce it. Diemont, J. held:
Where the relief asked for is such that it will not be enforceable, the
judgment becomes illusory and the court should not undermine its au-
thority by giving such a judgment. This no doubt is why it has been
repeatedly stated that the principle of effectiveness is the basis of juris-
diction…
9 Ibid., at p. 237. The Golden Promise was the ship in which the respondent
intended to fish in Tristan waters. At the time of the proceedings, it was
berthed in Cape Town.
10 The interdict is the practical equivalent in Roman-Dutch law of the
common law injunction.
” South Atlantic case, op. cit., at p. 239.
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[Vol. 19, No. 2
[I]t is power to give an effective judgment and not merely power over
the defendant which is the test of jurisdiction. In other words the fact
that the respondent in this case may be temporarily resident within the
jurisdiction of this Court is of no consequence –
the question is whether
this Court can enforce an order against him if and when he starts fishing
in the waters of Tristan da Cunha. Seen in that light it seems to me that
there can be little doubt that this court will be powerless to enforce its
judgment if Buchan choses to ignore the interdict.’ 2
(ii) If the court were to grant the order sought, it would be
deciding that the applicant had an exclusive right to fish
under the law of Tristan da Cunha. The applicant’s claim
to sole fishing rights was in the nature of a title action
or action in rem. But real actions should be brought in the
forum rei sitae and mixed actions are properly referable
to the same jurisdiction. Such actions will not therefore
lie elsewhere than in the forum rei sitae. Diemont, J. con-
cluded:
I cannot see how it can be said that it is the duty of this Court to deter-
mine who is entitled to fish in the territorial waters, or the restricted
waters, of Tristan da Cunha. That is the task which this Court cannot
undertake.’ 3
For the above reasons the court held that it had no jurisdiction
to give relief.
It would appear from the above judgment that courts would
have two main difficulties in enforcing, directly or indirectly, the
maritime conservational laws of other states:
(1) The ineffectiveness (or perhaps impracticality) of its orders.
(2) The undesirability of determining the content of real or
mixed rights which arise under and by virtue of the conservational
laws of another state, the courts of the latter being a more appro-
priate forum for the decision of such matters.
We might now comment briefly on two questions which arise
out of the above difficulties.
(1) Could these difficulties be overcome so as to reinforce the
protection of a state’s maritime environment by giving it not only
the sanction of its own courts but also those of the courts of other
states, where appropriate?
It might be possible to create such protection by a Convention
relating to the reciprocal enforcement of judgments. Such a con-
vention would have to contain novel features in that it would have
to extend specifically to issues which involved the environmental
12 Ibid., at p. 240.
‘3 Ibid., at p. 242.
19731
NOTES
laws of the parties, to interdicts and injunctions relating to the
same, and to the determination of real and mixed actions arising
therefrom.14
(2) It may be asked whether such a novel convention on re-
ciprocal enforcement would be desirable. Certainly a convention
containing such provisions would involve difficulties of some mag-
nitude. For instance, if a court gave judgment in a real or mixed
action arising under the laws of another country, would the matter
be deemed to be res judicata in such other country? Such a posi-
tion would appear to be undesirable especially in cases where the
courts of such other country might conceivably have come to a
different conclusion. On the other hand should the matter not be
res judicata, would it be possible to re-open the proceedings in the
forum rei sitae? In effect, this would mean that the original judg-
ment would be enforceable unless successfully challenged in the
courts of the other country. But this would involve double pro-
ceedings which would scarcely be degirable since it would lead
one to question the purpose of seeking enforcement measures at
all in a court other than the forum rei sitae if one was, in any event,
and in all probability, going to end up in the latter court.
From the above we might conclude that if the proceedings in
the South Atlantic case had been brought in the first place in the
appropriate court for Tristan da Cunha, that tribunal would not
have been faced with the difficulties which confronted Diemont, J.
in the Cape Provincial Division of the Supreme Court of South
Africa.
D. J. Devine *
14 For an example of the provisions of what might be termed an ordinary
convention in the field of the reciprocal enforcement of judgments, see article
16(1) of the European Communities Convention on Jurisdiction and Enforce-
ment of Judgments in Civil and Commercial Matters, 8 I.L.M. 229 (1968), which
gives exclusive jurisdiction in matters involving rights in rem in real property
to the forum rei sitae.
– B.A., LL. B. (N.U.I.), LL. B. (South Africa), Solicitor (Ireland), Advocate
(Kenya); Senior Lecturer in Law, University of Cape Town.
