Stephen Vasciannie
The main picture on the front page of last Friday's Gleaner depicted a few forlorn men, denoted by the newspaper as foreign fishermen who have found themselves "in dangerous waters". The dangerousness of the waters, it seems, arises from the fact that the men, altogether amounting to 57, were arrested "in the waters off Pedro Cays" with more than J$12 million worth of conch. They reportedly had no licence, so they were allegedly involved in illegal fishing.
What, though, are the dimensions of these 'dangerous waters', and what are the rules of law that govern fishing in Jamaican waters? As to the identification of Jamaican waters, the Law of the Sea Convention sets out the main rules applicable to all States.
There are two main approaches: One is for the country to claim a territorial sea starting from the coastline, and stretching out to a distance of 12 miles. The country should do this if its coastline is not deeply indented, and if the country is not part of an archipelago.
Territorial Sea
In the territorial sea, the coastal State has sovereignty, much in the way that the State has sovereignty over the land. The Law of the Sea Convention further indicates that beyond the territorial sea, the coastal State may claim an exclusive economic zone for up to another 188 miles. In this scenario, therefore, where the country has a 'normal' coastline, the country may be able to claim control over foreign fishermen for up to 200 miles from its coastline.
In the second situation, the coastal State may believe, however, that its coastline is not normal, either because it has deep indentations, or because the country is an archipe-lago, made up of a group of islands.
Jamaica has placed itself in this second category, maintaining that the country is really an archipelago, with the Pedro and Morant Cays, and various other small islets off the coast constituting parts of the archipelago, along with the main island of Jamaica.
And, starting with this archipelagic assumption, Jamaica has drawn straight lines connecting points on each of the outer islands in the group. The result is that there is, in effect, a box around Jamaica. The lines that form this box represent the starting point of the Jamaican territorial sea, going outwards. The waters that fall within the box constitute the archipelagic waters of Jamaica.
Economic Zone
Beyond the 12 miles of Jamaica's territorial sea, Jamaica has claimed an exclusive economic zone. Though, theoretically, this zone could extend for 200 miles from the box around Jamaica, this cannot happen in practice, largely because of Jamaica's geographical location. Specifically, within the Caribbean Sea, each of the closely-packed neighbouring countries may theoretically claim 200 miles, so there needs to be a system to decide how the conflicting claims can be reconciled.
This system is the process of maritime delimitation. The main rule for maritime delimitation concerning the exclusive economic zone is that countries with opposite or adjacent coasts must delimit their respective zones in a manner that will produce an equitable solution. As equity is not always easy to identify in these situations, some countries argue that an equidistance line between the conflicting neighbours may be the most appropriate starting point in seeking an equitable solution.
So, then, for Jamaica, the outer limit of our exclusive economic zone is or will be somewhere between this country and its neighbours, Cuba, Haiti, Nicaragua and so on, with the precise delineation being the subject of negotiations about what consti-tutes an equitable solution in the circumstances of the Caribbean Sea.
Fishy business
The precise dimensions of the 'dangerous waters', therefore, have not been fully determined in practice. But this does not mean that the forlorn fishermen are not subject to Jamaican law. If they have been found fishing within 12 miles of any of the islands subject to Jamaican sovereignty (without a licence), they will face criminal sanctions.
Moreover, in keeping with Jamaica's Maritime Areas Act and the Law of the Sea Convention, if the alleged conch gatherers were within the archipelagic box around Jamaica, or in the territorial sea or exclusive economic zone beyond the outer lines of that box, they will have been in breach of both Jamaican and international law. They would have been involved in fishy business.
Stephen Vasciannie is Professor of International Law, University of the West Indies, Mona, and a deputy Solicitor General in the Attorney-General's Chambers.
