The legal recognition particularly by international law and European community law of special economic dependency and preferential rights as claimed in relation to fisheries

• Main Author: Wallace, Rebecca Mairi MacLean
• Format: Thesis
• Language: English
• Published: ProQuest Dissertations & Theses 1982
• Subjects: Iceland
• Online Access: http://theses.gla.ac.uk/71996/; http://theses.gla.ac.uk/71996/1/10644204.pdf

An analysis of special economic dependency and preferential rights as claimed in respect of fishery resources is the topic of this thesis. The overall purpose of the study is to assess the legal recognition which has been accorded to the concepts by international law and European Community law respectively. Initially the concepts are examined within the context of international law. The development and recognition of special economic dependency and preferential rights by the international community are examined in detail, especially as the International Court of Justice confidently asserted, in the Fisheries Jurisdiction (United Kingdom v Iceland) Case in.1974, that both concepts were international customary law. The conclusion drawn from the examination is, however, that neither concept has attained the status of international law. Nevertheless, because it has proved politically expedient, the concepts have been recognised as important considerations to be taken account of in fishery negotiations. Similarly, under European Community law the conclusion again is that while both concepts have been recognised they are not recognised as legal concepts which may be invoked as of right. The concepts accordingly cannot be dismissed and the question as to when claims of special economic dependency and preferential rights may be successful is considered. Considered, that is, by reference to international law, European Community law and occasionally municipal law. The raison d'etre for this, as constantly stressed throughout the text, is that although a concept adopted by one legal system need not necessarily be characterised in the same way by another legal, system, legal systems do interrelate. Interrelation will be all the more probable if concepts of the same name are utilised to express similar factual situations. Special dependency claims are, therefore, examined to see whether a factual resemblance may be identified between claimants in different legal systems. In respect of preferential rights, possible ways of their being articulated so as to give expression to special dependency are considered, with the conclusion being drawn that preferential rights should not be defined only in terms of preferential rights of access to fish stocks. A broad definition is required if specially dependent regions are to reap any long-term benefit from being granted preferential rights. The relevance of this study may be thought by some to be minimal in respect of international law. However, although claims of special economic dependency and preferential rights have receded with the establishment of 200 mile fishing/economic zones, Article 71 of the 1981 Draft Convention on the Law of the Sea does provide that a coastal State may derogate from granting access to other States if its "economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone." It is anticipated, therefore, that in the light of such a provision, special economic dependency and preferential rights will gain fresh relevance under international law. As far as European Community law is concerned, any study of the concepts should be welcome because although it does not solve the problems currently confronting those responsible for negotiating a common fisheries policy, it does at least highlight those ways in which the concepts may be accommodated within the Community system and how through the interrelation of legal systems acceptable means of expression may be found. The law is as of 31 December 1981.