U.N. Doc. CCPR/C/78/D/951/2000

 

Communication No. 951/2000

16 July 2003

 
     

human rights committee

  78th Session  
  14 July 8 August 2003  
     
     

Bjorn Kristjansson

 

v.

Iceland

     
     
 

Decision

 
     
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BEFORE:

CHAIRPERSON: Mr. Abdelfattah Amor (Tunisia)

VICE-CHAIRPERSONS: Mr. Rafael Rivas Posada (Colombia), Sir Nigel Rodley (United Kingdom), Mr. Roman Wieruszewski (Poland)

RAPPORTEUR: Mr. Ivan Shearer (Australia)

MEMBERS: Mr. Nisuke Ando (Japan), Mr. Prafullachandra Natwarlal Bhagwati (India), Mr. Alfredo Castillero Hoyos (Panama), Ms. Christine Chanet (France), Mr. Franco Depasquale (Malta), Mr. Maurice Glele Ahanhanzo (Benin), Mr. Walter Kalin (Switzerland), Mr. Ahmed Tawfik Khalil (Egypt), Mr. Rajsoomer Lallah (Mauritius), Mr. Martin Scheinin (Finland), Mr. Hipolito Solari Yrigoyen (Argentina), Ms. Ruth Wedgwood (United States), Mr. Maxwell Yalden (Canada)

16 members of the Committee participated in the seventy-eighth session

   
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Citation:

Kristjansson v. Iceland, Comm. 951/2000, U.N. Doc. A/58/40, Vol. II, at 473 (HRC 2003)

Alt. Style of Cause: Kristjansson v. Iceland
Publications:

Report of the Human Rights Committee, U.N. GAOR, 58th Sess., Supp. No. 40, U.N. Doc. A/58/40, Annex VI, sect. K, at 473 (Oct. 24, 2003)

Represented By: Ludvik Emil Kaaber
 
     
 
 
     
  1. The author of the communication is Mr. Björn Kristjánsson, an Icelandic citizen. He claims to be a victim of a violation of article 26 of the International Covenant on Civil and Political Rights by Iceland. The author is represented by counsel. The Optional Protocol entered into force for Iceland on 22 November 1979.

THE RELEVANT LEGISLATION

2.1 During the 1970s the capacity of Iceland's fishing fleet was surpassing the yield of its fishing banks and measures became necessary to safeguard Iceland's main natural resource. After several unsuccessful attempts to restrict the pursuit of particular species and to make fishing by certain types of gear or by type of vessel subject to licence, a fisheries management system was adopted by Act 82/1983 that was based on the allocation of catch quotas to individual vessels on the basis of their catch performance, generally referred to as "the quota system".

2.2 In application of the Act, regulation No. 44/1984 (on the management of demersal fishing) provided that operators of ships engaged in fishing of demersal species during the period from 1 November 1980 to 31 October 1983 would be eligible for fishing licences. The ships were entitled to fishing quotas based on their catch experience during the reference period. Further regulations continued to build on the principles so established and these principles were transferred into statute legislation with Act No. 97/1985, which stated that no one could catch the following species without a permit: demersal fish, shrimp, lobster, shellfish, herring and capelin. With the enactment of the current Fisheries Management Act No. 38/1990 the catch quota system was established on a permanent basis.

2.3 The first article of the Act states that the fishing banks around Iceland are common property of the Icelandic nation and that the issue of quotas does not give rise to rights of private ownership or irrevocable domination of the fishing banks by individuals. Under article 3 of the Act, the Minister of Fisheries shall issue a regulation determining the total allowable catch (TAC) to be caught for a designated period or season from the individual exploitable marine stocks in Icelandic waters for which it is deemed necessary to limit the catch. Harvest rights provided for by the Act are calculated on the basis of this amount and each vessel is allocated a specific share of the TAC for the species, the so-called quota share. Under article 4(1) of the Act, no one may pursue commercial fishing in Icelandic waters without having a general fishing permit. Article 4(2) allows the Minister to issue regulations requiring special fishing permits for catches of certain species or made with certain type of gear or from certain types of vessels. Article 7(1) provides that fishing of those species of living marine resources which are not subject to limits of TAC as provided for in article 3 is open to all vessels with a commercial fishing permit. Article 7(2) establishes that harvest rights for the species of which the total catch is limited shall be allocated to individual vessels. When quota shares are determined for species that have not been previously subject to TAC, they are based on the catch performance for the last three fishing periods. When quota shares are set for species that have been subject to restricted fishing, they are based on the allocation in previous years. Under article 11 (6) of the Act, the quota share of a vessel may be transferred wholly or in part and merged with the quota share of another vessel, provided that the transfer does not result in the harvest rights of the receiving vessel becoming obviously in excess of its fishing capacity. If those parties who are permanently entitled to a quota share do not exercise their right in a satisfactory manner, this may result in their forfeiting the right permanently. The Fisheries Management Act also imposes restrictions on the size of the quota share that individuals and legal persons may own.

2.4 In December 1998, the Supreme Court of Iceland rendered judgement in the case of Valdimar Johannesson v. the Republic of Iceland, stating that the Government's refusal of a fishing licence based on article 5 of the Fisheries Management Act breached sections 65 (right to equality before the law) and 75 (freedom to engage in employment of one's choice) of the Constitution. Parliament then adopted Act No. 1/1999 which provides that any Icelandic national operating a registered fishing vessel with a certificate of seaworthiness is entitled to a fishing licence. Any holder of a fishing licence is, in turn, entitled to negotiate the purchase of percentage quotas with persons owning them and to "lease" tonnage quotas at the Quota Exchange.

THE FACTS AS SUBMITTED BY THE AUTHOR

3.1 The author states that in practice and notwithstanding section 1 of the Act fishing quotas have become a transferable property. Those who own fishing rights through the original No. 44/1984 regulation can assign quotas to others for payment. The price for tonnage quotas is determined by the Quota Exchange (governed by Act No.11/1998, the Quota Exchange Act). The Quota Exchange is governed by a Board of directors appointed by the Minister for Fisheries. It is said that the prices for quotas are so high as to preclude any gain for a fisherman not owning a quota. As a result, the fishing industry has been practically closed to new entrants. According to the author many Icelandic citizens however want to be fishermen as it is an occupation deeply rooted in Icelandic culture and also practically the only productive activity accessible to men in the prime of age. The author adds that annually thousands of tons of small fish are discarded at sea because they would count as part of the quota but could not be sold at the highest price.

3.2 In 1999, the author was working as a captain for the company Hyrnó, registered owner of the fishing vessel Vatneyri. Its owner issued a declaration on 10 February 1999 to the effect that the company's ships would be sent to fish even if they had no quota for the species caught. He claimed to be entitled to the same access to the fishing banks as others and stated that he was prepared to pay the public for this access but not private parties. Originally the ship owner's intention had been to purchase a tonnage quota for what might be caught. However, when he learned that the price for cod at the Quota Exchange was the same or higher than what could be expected to be paid for the catch on return to port, he decided to disregard the legal provisions on the grounds that they would be found unconstitutional by the court.

3.3 The author returned to port on 16 February 1999 and landed 33,623 kg of cod. On 16 August 1999 he and the ship owner were charged with having violated Act No. 57/1996, No. 38/1990 and No. 97/1997 by having fished without having obtained a quota. On 5 January 2000, the author and the owner were acquitted by the District Court of the Western Fjords which considered that article 7(2) of the Fisheries Management Act was in conflict with sections 65 (Right to equality) and 75 (Freedom of employment) of the Constitution and by reference of the Supreme Court's judgement in Valdimar. The author states that his acquittal was heavily criticized by governing politicians and industry representatives and that this was perceived by some as interference with the independence of the judiciary. On 6 April 2000 the Supreme Court of Iceland overturned the lower court's judgement. It found both the author and the owner guilty. The owner of the company was sentenced to a fine of ISK 1,000,000 and the author to a fine of ISK 600,000. The judgement was delivered by a majority of four judges, with one judge concurring on the conviction but dissenting on the sentence and two judges dissenting on the conviction.

THE COMPLAINT

4. The author complains that the State party has violated article 26 of the Covenant by granting to a minority of its citizens an exclusive right to charge other citizens for access to a highly valuable, renewable natural resource previously not subject to rights of ownership, distributed over an area approximately seven times as big as the island itself, and by finding him guilty of a criminal offence on account of his refusal to respect that arrangement. He maintains that utilization of this resource by the recipients of this privilege during the period from 1 November 1980 to 31 October 1983 cannot justify this action.

THE STATE PARTY'S OBSERVATIONS

5.1 By note verbale of 23 January 2001 the State party challenges the admissibility of the communication on three grounds: non-exhaustion of domestic remedies (OP article 5, paragraph 2(b)), insufficient substantiation of the author's claim that he is a victim of a violation of article 26 (section 90 (b) Committee's rules of procedure) and the communication's incompatibility with the provisions of the Covenant (OP article 3).

5.2 With regard to the application of the principle of equality in Icelandic law, the State party emphasizes that the Icelandic judiciary is guaranteed complete independence under the Constitution and general civil law and that this applies fully in practice. The State party therefore rejects the author's statement that the Supreme Court was under improper pressure from the Government and that this influenced its decision in the author's case. In this connection, the State party refers to many policy- defining judgements, in particular based on article 65 of the Constitution which is modelled on article 26 of the Covenant, such as in the Valdimar Jóhannesson case. In the author's case, the Supreme Court likewise made a new and thorough examination of the compatibility of the Icelandic fisheries management system with the general principles of freedom of employment and equality of citizens and concluded that it was compatible.

5.3 The State party argues that the author has failed to exhaust all available domestic remedies, because he had not applied for a fishing permit which would have enabled him to have a chance of purchasing or renting a quota share. The State party notes that the prerequisite for being granted a fishing permit, i.e. that the applicant must own a vessel, has not been challenged by the author. In the opinion of the State party therefore, the author had not employed the necessary means to have harvest rights allocated.

5.4 Alternatively, the State party argues that the author has not shown how article 26 of the Covenant is applicable to his case. The State party points out that the author only makes general arguments but makes no reference to his own position and provides no analysis of whether he has been the victim of discrimination as compared with other persons in similar positions. The State party recalls that the author was an employee of the Hyrnó company and that at the time the company had already made use of the permanent quota share that its vessels had been allocated on the basis of article 7(2) of the Act. The vessels of Hyrnó, including the vessel of which the author was captain, had received a quota share allocated on the basis of their catch performance on an equal footing with others to whom this applied. According to the State party, it must have been clear to the author that when he set out to fish after the company's harvest rights had been used up, he was committing a criminal offence. No discrimination was practiced against the author through the institution of criminal proceedings against him, as many cases are brought each year under comparable provisions of the fisheries management legislation.

5.5 Moreover, the State party argues that freedom of employment, one of the author's main arguments before the domestic courts, is not protected per se by the International Covenant on Civil and Political Rights and that in the absence of specific arguments showing that the restrictions of his freedom of employment were discriminatory the communication would be inadmissible as incompatible with the provisions of the Covenant, under article 3 of the Optional Protocol.

5.6 As to the merits of the communication, the State party argues that no unlawful discrimination was made between the author and those to whom harvest rights were allocated. What was involved was a justifiable differentiation: the aim of the differentiation was lawful and based on reasonable and objective grounds, prescribed in law and showing proportionality between the means employed and the aim. The State party explains that public interest demands that restrictions be imposed on the freedom of individuals to engage in commercial fishing in order to prevent over-fishing. Restrictions aimed at this goal are prescribed by the detailed fisheries legislation. The State party further argues that the allocation of a limited resource cannot take place without some sort of discrimination and states that the legislature employed a pragmatic method in allocating the permits. The State party rejects the author's view that the principle of equality protected by article 26 of the Covenant is to be interpreted in such a way as to entail a duty to allocate a share of limited resources to all citizens of the State. The State party also points out that the Fisheries Management Act permits the transfer of harvest rights guaranteeing access by new parties to fishing of the stocks on which catch restrictions have been set. In this context, the State party mentions that the author's employer, the Hyrnó company, had itself assigned to other parties harvest rights that originally were allocated to the author's vessel. According to the State party, this was one of the reasons why the vessel had run out of harvest rights at the time of the offence.

5.7 The State party emphasizes that any Icelandic citizen who has at his disposal a registered vessel with a certificate of seaworthiness can apply for a general fishing permit and make catches of those fish species that are not subject to special allowable catch restrictions. Furthermore, he can receive harvest rights for those fish species that are subject to special allowable catch restrictions by purchasing a permanent quota share or a catch quota for a specific period. The State party maintains that the permanent and transferable nature of the harvest rights leads to economic efficiency and is the best method of achieving the economic and biological goals that are the aims of the fisheries management. Finally, the State party points out that the third sentence of article 1 of the Fisheries Management Act states clearly that the allocation of harvest rights endows the parties neither with the right to ownership nor with irrevocable jurisdiction over harvest rights. Harvest rights are therefore permanent only in the sense that they can only be abolished or amended by an act of law. The State party adds that a review of the fisheries management legislation is foreseen by the end of the fishing season 2000-2001.

5.8 In conclusion, the State party argues that the discrimination that results from the fisheries management system is based on objective and relevant considerations and is aimed at achieving lawful goals that are set forth in law. In imposing restrictions on the freedom of employment, the principle of equality has been observed and the plaintiff has not sufficiently substantiated his claim that he is a victim of unlawful discrimination in violation of article 26 of the Covenant.

5.9 By further submission of 25 September 2001, the State party provides additional comments on the merits of the communication. The State party explains that all Icelandic citizens are permitted to fish in the sea around the country for their own and their families' consumption and that no prohibition against this has been imposed in the regulations on fisheries management. In the State party's opinion the issue raised by the communication concerns the question of how far it is permissible to go in restricting the author's freedom to choose his employment in fishing for profit or professional purposes. The State party reiterates that no unlawful discrimination was made between the author on the one hand and those to whom harvest rights were allocated on the other hand, but that what was involved was a justifiable differentiation.

5.10 The State party notes that the author has failed to present arguments as to how he personally has been a victim of discrimination, since he presents only a general assertion that the fisheries management system violates the principle of equality, without making reference to his own position and the consequences for himself. The State party emphasizes that the author does not own a fishing vessel and that he therefore does not meet the requirements of article 5 of the Act for acquiring a general fishing permit. The State party rejects the suggestion that all Icelandic citizens should have access to harvest rights and argues that the arrangement for allocating harvesting rights under the Fisheries Management Act does not constitute a violation of article 26 of the Covenant. The State party recalls that when deciding on the allocation of limited resources, the legislature was under an obligation to respect the rights of employment of those who were already active in the sector and had invested in it. The State party concludes that the distinction which was made between the author and the other parties who had harvest rights and quota shares under Act No. 38/1990 was made for a lawful purpose, i.e. the protection of fish stocks for the benefits of the nation, and that it was based on objective and reasonable considerations.

AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSION

6.1 In his comments, dated 3 December 2001, the author concedes that save for the general atmosphere and circumstances of his conviction, there is no evidence that the requirements of article 14 were not fulfilled. He explains that since his conviction was based on the presumed compatibility of the Fisheries Management system with human rights, he is requesting the Committee to determine the validity of this premise.

6.2 With respect to the State party's objections to admissibility, the author argues that for the purposes of his communication he should be equated with his employer, having been in his service and having been sentenced as a result of his work for him. The fact that the author did not own the ship himself was irrelevant to the criminal case against him. Moreover, it is pointed out that the vessel Vatneyri of which the author was captain had a general occupational fishing licence. The author therefore had no reason to apply for a fishing permit. The author's conviction was not based on his lack of fishing permit, but because of having fished without first having obtained the necessary quota.

6.3 As to the State party's argument that the author has failed to demonstrate how article 26 applies to his case, the author argues that the State party fails to understand the essence of his complaint, which is not one of discrimination as compared with others in a similar position as a result of the establishment of the present fisheries management system but one of having been given a status different from that of others with regard to access to quotas. Others have been given an exclusive right to utilise Iceland's biggest natural resource, whereas the author only has the possibility to utilise the resource against payment to the first group. The fact that those who like the author have not been given the exclusive right to fish have equal rights among themselves, is not relevant to the author's complaint. The author states that his complaint is not of having been denied a privilege in relation to others, but on the contrary, that others have been given a privilege in relation to him. According to the author, the differentiation effected by committing the right of use of the fishing banks around Iceland to a circumscribed, privileged group is contrary to Iceland's obligations under article 26 of the Covenant.

6.4 As to the merits, the author recalls that the entrenchment of the principle of freedom of employment was deemed necessary to prevent situations of monopoly. He underlines that he has no reason to object to a fisheries management system involving privately owned and freely transferable quotas, but that he objects to exclusive fishing rights established by donation of such quotas to a particular group. In his opinion this has led to a different "status" for the two groups, resulting in a privilege of one and a corresponding discrimination against the other. In this context, the author argues that employment is not a field exempted from the scope of article 26 of the Covenant and the absence of a freedom of employment provision in the Covenant is thus of no relevance to the admissibility of the communication. The author also takes issue with the State party's assertion that the present fisheries management system is economically and ecologically effective and argues that even if this were so, economic operations and endeavours are subject to law and economic efficiency cannot be a valid excuse for violating human rights.

6.5 As to the State party's argument that no discrimination occurred because the differentiation was justifiable, the author agrees that the protection of the fishing banks against overexploitation is a lawful aim but argues that the method selected for doing so is incompatible with international law. He further argues that the differentiation is not based on reasonable and objective criteria, because the actual requirement involved, namely membership of a group enjoying an artificially created privilege, is neither "reasonable" nor "objective". He adds that if the utilisation of a certain resource can only be allocated to a limited number of people, the possibilities for the citizens to enter that number must be the same.

6.6 The author explains that he does not object as such to an arrangement by which catch entitlements are allocated to owners of individual vessels. He only objects to the situation which is perpetuated by the Fisheries Management Act but not mentioned in it, namely that such entitlements have been given to a particular group with the result that all others are obliged to purchase them from that group. In relation to the State party's argument that the differentiation is prescribed by law, the author states that entitlements to catch fish of species subject to annual total catch limitations within the Icelandic territorial fishing limits cannot be traced to any statute at all. According to the author, total allowable catch was simply distributed among those who had been engaged in fishing at a particular period, with the consequence that others were excluded. This was done by administrative regulation No. 44/1984 and the arrangement has been continued by providing in successive laws that only those who previously had been issued a catch share were eligible for a new annual issue of catch entitlements and by allowing others access through a purchase or lease of fishing rights thus issued by administrative authorities. In the author's opinion therefore the existence of Icelandic fishing quotas is traced to administrative action, not legislation.
He therefore questions the logic of the State party's assertion that harvest rights are permanent only in the sense that they cannot be abolished or amended other than by act of law, as it is hard to think of a reason why something that has not been established by law cannot be abrogated except by law.

6.7 The author maintains that the exclusive use of resources by one particular group of persons without regard to those not belonging to the group, constitutes a violation of the principle of equality. The question is not whether the people of Iceland have some kind of property right to utilise the fishing banks around Iceland, but whether those now treating the fishing banks as their own private property are entitled to do so.

6.8 The author also challenges the State party's assertion that the fisheries management system enjoys national consensus and states that in fact the system has caused unprecedented strife and discord among the Icelandic people.

FURTHER OBSERVATIONS FROM THE STATE PARTY

7.1 By submission of 25 February 2002, the State party addresses the author's comments. It reiterates that freedom of employment is not protected by the Covenant on Civil and Political Rights and that the Committee thus has no jurisdiction to evaluate whether the restriction of the author's freedom of employment is excessive unless it can be demonstrated that the restriction constituted a violation of article 26 of the Covenant. In fact, the State party points out that the author has not shown any particular adverse consequences for him such as loss of income.

7.2 With regard to the author's comment that his rights under article 26 of the Covenant had been violated because he had been given a different status than others who had been given harvest rights, the State party argues that it has already presented detailed arguments as to why a specific group of individuals were placed in a better position than other Icelandic citizens as regards access to shares in catches of limited fishing resources. It summarizes its arguments by saying that the aim of the differentiation is lawful and based on objective and reasonable considerations and that there is reasonable proportionality between the means employed and the aim pursued.

7.3 The State party observes that the author appears to be of the opinion that as a result of the establishment of the fisheries management system in which the allocation of harvest rights was subject to rules based on the catch performance by parties in the fishing industry over a particular period, a particular group of citizens was placed in a better position than other citizens and that consequently the rights of those who did not receive harvest rights were violated. The State party rejects the view that it is possible to conclude from the rule contained in article 26 of the Covenant that the rights in question should be allocated to a larger and at the same time less restricted group of people, who might furthermore not be active in the fisheries sector. In this context, the State party once again emphasizes that the Act permits the transfer of harvest rights guaranteeing access by new parties to fishing stocks on which catch restrictions have been set.

7.4 With regard to the author's statement that the harvest rights as provided for are in fact scarcely based on law, as they were originally issued on the basis of regulations, the State party notes that in domestic procedures the author has not challenged the legal basis for the allocation of harvest rights and considers it evident that the provisions of the Fisheries Management Act constitute a clear basis in law for the restrictions on the allocation of harvest rights of which the author complains.

7.5 Finally, the State party points out that it is striking how little bearing the author's own interests have on the entire presentation of the case, and that it would appear that the purpose of the communication is to request a theoretical opinion of the Committee as to whether the arrangements adopted by Iceland regarding fisheries management are compatible with article 26 of the Covenant. This issue is a social one with great interests for the Icelandic nation. By consciously violating the Act, the author was able to demand the opinion of the domestic courts on whether or not the Act was compatible with the Constitution and international conventions. On that occasion, the highest court took the view that the legislature's evaluation of ways of managing the nation's fisheries so as best to secure the overall interests of the nation could not be attacked providing it was based on relevant considerations. The State party emphasizes that the Icelandic legislature is better placed than international bodies to appreciate what measures are appropriate in this area, which is of great significance for the economic prosperity of the nation.

7.6 The State party also provides information showing that between 1998 and 2001 20 indictments have been issued on the basis of infringements of the Fisheries Management Act.

7.7 The State party also provides information about the revision of the Fisheries Management legislation. In September 2001, a parliamentary committee recommended that the quota system continue to form part of Iceland's fisheries management. The majority of the committee also recommended that a new policy be charted out on the payment of fees for marine resources. Draft legislation will be presented to Parliament in spring.

THE AUTHOR'S FURTHER COMMENTS

8.1 By letter of 12 April 2002, the author comments on the State party's submission. He argues that the limitation of access to valuable resources must be achieved without granting permanent privilege to a limited group of persons. Concerning the State party's argument that the present fisheries management system is in the public interest, the author argues that the public's interest in a system of donated privilege is very indirect. The author emphasizes that he has nothing against a quota system as such, but that it is vital that the catch entitlements cannot be established by exclusion of all but some. The possibility of those left out to purchase or lease catch entitlements from those who get them free does not make such a system legitimate. If money is the means by which access to fisheries is obtained, then the money paid for the access should revert to the State as the body responsible for controlling access, but not to a clique. The author voices as his opinion that the present fisheries management system was introduced because of the influence of wealthy and politically entrenched interest groups, and that there is no necessity to limit the distribution of quota to such a limited group. The author reiterates that he was convicted for violating the fisheries management rules and that he as an Icelandic citizen is entitled to protection of the law, making the issue before the Committee a practical, not a theoretical, matter.

8.2 With regard to the information provided by the State party concerning other criminal prosecutions for offences against the Fisheries Management Act, the author states that he does not deny that other prosecutions occur but maintains that there has been no case of a comparable violation of openly disregarding the fundamental premises of the fisheries management system. Once again, the author explains that he does not complain about a system of individually owned and transferable quotas, provided that they are honestly acquired under observance of general principles.

8.3 By submissions of 8 and 12 August 2002, the author provides copies and translations of media reports on the case against him while it was before the courts. From the reports it appears that the case drew a lot of attention from Government and parliament, which debated the lower court's judgement. It appears that members of the Government expressed as their opinion at the time that a confirmation of the lower court's judgement by the Supreme Court would lead to a serious economic crisis for Iceland.

8.4 By further letter of October 2002, the author submits additional comments. He states that it is for reasons other than the conservation of the nation's fish stocks, that the politicians in power are committed to the maintenance of the fisheries management system, mainly because the abolition of the current privilege would demand a recognition of their incompetence and would affect the financial interests of a politically influential group of people. According to the author, the statements of the Prime Minister made after the lower court's judgement in his case show that he threatened a confrontation with the judiciary if the judgement were not reversed. According to the author, this led to a judgement of the Supreme Court which disregarded its first and most important duty by not applying the equality principle embodied in the Constitution.

8.5 The author reiterates that Icelandic catch entitlements are created by a closure of the fishing banks to all persons who were not active in fisheries at a particular point in time, by a distribution of the entitlements among those who were and by giving those persons an exclusive right to demand money from others for access to this resource. He concedes that this arrangement was not unreasonable given the circumstances at the time, as the operators then active might otherwise have been prevented from recovering the value of their investments. But the author argues that the legislature and the Government were under a duty to revert to a constitutional situation as soon as possible and that the arrangement should never have been made permanent, as also indicated by the Supreme Court in its Valdimar judgement.

8.6 Finally the author observes that the non-respect of one human right leads to the non-respect of others as well, and has consequences that affect society as a whole. In this particular case, the concentration of fishing rights in the hands of a small group of people has led also to a discrepancy in the protection of the constitutional rights of this group compared to the commoners who are much less likely to enjoy the protection of the Constitution.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

9.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its Rules of Procedure, decide whether or not the communication is admissible under the Optional Protocol.

9.2 The author claims that his conviction for fishing without having secured the necessary quota makes him a victim of a violation of article 26 of the Covenant, since the company for which he worked had to purchase a quota from others who had received quotas free of charge because they were active in the fishing industry in the reference period (1 November 1980 to 31 October 1983). The Committee notes, however, that the author did not own a vessel, nor had he ever requested to be given a quota under the Fisheries Management Act. He merely worked as a captain on a vessel which had a fishing licence and which had acquired quota. When the vessel's quota was exhausted and the acquisition of a new quota proved to be too expensive, he agreed to continue fishing without a quota, thereby wilfully committing a criminal offence under the Fisheries Management Act. In the circumstances, the Committee considers that the author cannot claim to be a victim of discrimination on the basis of his conviction for fishing without quota.

10. The Committee therefore decides:

(a) that the communication is inadmissible ratione personae under article 1 of the Optional Protocol;
(b) that this decision shall be communicated to the State party and to the author.

_____________________________

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]
 
     

 

 

 

   

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