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[p 30]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court,
Having regard to Article 61 of the Rules of Court,
Having regard to the Application by the Federal Republic of Germany filed in
the Registry of the Court on 5 June 1972, instituting proceedings against
the Republic of Iceland in respect of a dispute concerning the proposed
extension by the Government of Iceland of its fisheries juris-diction, by
which the Government of the Federal Republic asks the Court to declare that
Iceland's claim to extend its exclusive fisheries jurisdiction to a zone of
50 nautical miles around Iceland has no basis in international law and could
therefore not be opposed to the Federal Republic and to its fishing
vessels,[p 31]
Makes the following Order:
1. Having regard to the request dated 21 July 1972 and filed in the Registry
the same day, whereby the Government of the Federal Republic, relying on
Article 41 of the Statute and Article 61 of the Rules of Court, asks the
Court to indicate, pending the final decision in the case brought before it
by the Application of 5 June 1972, the following interim measures of
protection:
"(a) The Federal Republic of Germany and the Republic of Iceland should each
of them ensure that no action of any kind is taken which might aggravate or
extend the dispute submitted to the Court.
(b) The Republic of Iceland should refrain from taking any measure
purporting to enforce the Regulations issued by the Government of Iceland on
14 July 1972 against or otherwise interfering with vessels registered in the
Federal Republic of Germany and engaged in fishing activities in the waters
of the high seas around Iceland outside the 12-mile limit of fisheries
jurisdiction agreed upon in the Exchange of Notes between the Government of
the Federal Republic of Germany and the Government of Iceland dated 19 July
1961.
(c) The Republic of Iceland should refrain from applying or threatening to
apply administrative, judicial or other sanctions or any other measures
against ships registered in the Federal Republic of Germany, their crews or
other related persons because of their having been engaged in fishing
activities in the waters of the high seas around Iceland outside the 12-mile
limit as referred to in paragraph 22(b) [of the request].
(d) The Federal Republic of Germany should ensure that vessels registered in
the Federal Republic of Germany do not take more than 120,000 metric tons of
fish in any one year from the 'Sea Area of Iceland' as defined by the
International Council for the Exploration of the Sea as area Va (as marked
on the map [annexed to the request] as Annex B).
(e) The Federal Republic of Germany and the Republic of Iceland should each
of them ensure that no action is taken which might prejudice the rights of
the other party in respect of the carrying out of whatever decision on the
merits the Court may subsequently render";
2. Whereas the Government of Iceland was notified of the filing of the
Application instituting proceedings, on the same day, and a copy thereof was
at the same time transmitted to it by air mail;
3. Whereas the submissions set out in the request for the indication of
interim measures of protection were on the day of the request communicated
to the Government of Iceland, by telegram of 21 July 1972, [p 32] and a copy
of the request was at the same time transmitted to it by express air mail,
and in the telegram and the letter it was indicated that the Court, in
accordance with Article 61, paragraph 8, of the Rules of Court, was ready to
receive the observations of the Government of Iceland on the request in
writing, and would hold hearings, opening on 2 August at 10 a.m., to hear
the observations of the Parties on the request;
4. Whereas the Application founds the jurisdiction of the Court on Article
36, paragraph 1, of the Statute and on an Exchange of Notes between the
Governments of Iceland and of the Federal Republic of Germany dated 19 July
1961;
5. Whereas by a letter dated 27 June 1972 from the Minister for Foreign
Affairs of Iceland, received in the Registry on 4 July 1972, the Government
of Iceland asserted that the agreement constituted by the Exchange of Notes
of 19 July 1961 was not of a permanent nature, that its object and purpose
had been fully achieved, and that it was no longer applicable and had
terminated; that there was on 5 June 1972 no basis under the Statute of the
Court to exercise jurisdiction in the case; and that the Government of
Iceland, considering that the vital interests of the people of Iceland were
involved, was not willing to confer jurisdiction on the Court, and would not
appoint an Agent;
6. Whereas by a telegram dated 28 July 1972, received in the Registry of the
Court on 29 July, the Minister for Foreign Affairs of Iceland, after
reiterating that there was no basis under the Statute for the Court to
exercise jurisdiction in the case to which the Application of the Federal
Republic referred, stated that there was no basis for the request for
provisional measures and that, without prejudice to any of its previous
arguments, the Government of Iceland objected specifically to the
indication of provisional measures by the Court under Article 41 of the
Statute and Article 61 of the Rules of Court in the present case, where no
basis for jurisdiction was established;
7. Whereas at the opening of the public hearing which had been fixed for 2
August 1972, there were present in court the Agent, counsel and other
advisers, of the Government of the Federal Republic;
8. Having heard the observations of Professor Dr. Gunther Jaenicke on behalf
of the Government of the Federal Republic, on the request for provisional
measures;
9. Noting that the Government of Iceland was not represented at the hearing;
10. Having taken note of the written replies given on 4 and 5 August 1972 by
the Agent of the Government of the Federal Republic to questions put to him
by the Court on 2 August 1972 on two points raised in the oral observations;
11. Whereas according to the jurisprudence of the Court and of the Permanent
Court of International Justice the non-appearance of one of the parties
cannot by itself constitute an obstacle to the indication of [p 33]
provisional measures, provided the parties have been given an opportunity
of presenting their observations on the subject;
*
12. Whereas in its message of 28 July 1972, the Government of Iceland stated
that the Application of 5 June 1972 was relevant only to the legal position
of the two States and not to the economic position of certain private
enterprises or other interests in one of those States, an observation which
seems to question the connection which must exist under Article 61,
paragraph 1, of the Rules between a request for interim measures of
protection and the original Application filed with the Court;
13. Whereas in the Application by which the Government of the Federal
Republic instituted proceedings, that Government requested the Court to
declare that the contemplated measures of exclusion of foreign fishing
vessels could not be opposed by Iceland to the Federal Republic and to its
fishing vessels;
14. Whereas the contention of the Applicant that its fishing vessels are
entitled to continue fishing within the above-mentioned zone of 50 nautical
miles is part of the subject-matter of the dispute submitted to the Court,
and the request for provisional measures designed to protect such rights is
therefore directly connected with the Application filed on 5 June 1972;
15. Whereas in its message of 28 July 1972, the Government of Iceland
further recalled that the Federal Republic of Germany had only accepted the
jurisdiction of the Court by its declaration of 29 October 1971, transmitted
to the Registrar of the Court on 22 November 1971, after it had been
notified by the Government of Iceland, in its aide-memoire of 31 August
1971, that the object and purpose of the provision for recourse to judicial
settlement of certain matters had been fully achieved;
16. Whereas on a request for provisional measures the Court need not, before
indicating them, finally satisfy itself that it has jurisdiction on the
merits of the case, yet it ought not to act under Article 41 of the Statute
if the absence of jurisdiction on the merits is manifest;
17. Whereas paragraph 5 of the Exchange of Notes between the Governments of
Iceland and of the Federal Republic dated 19 July 1961 reads as follows:
"The Government of the Republic of Iceland shall continue to work for the
implementation of the Althing Resolution of 5 May 1959 regarding the
extension of the fishery jurisdiction of Iceland. However, it shall give the
Government of the Federal Republic of Germany six months' notice of any such
extension; in case of a dispute relating to such an extension, the matter
shall, at the request of either party, be referred to the International
Court of Justice"; [p 34]
18. Whereas the above-cited provision in an instrument emanating from both
Parties to the dispute appears, prima facie, to afford a possible basis on
which the jurisdiction of the Court might be founded;
19. Whereas the complaint outlined in the Application of the Federal
Republic is that the Government of Iceland has announced its intention, as
from 1 September 1972, to extend unilaterally its exclusive jurisdiction in
respect of the fisheries around Iceland to a distance of 50 nautical miles
from the baselines mentioned in the 1961 Exchange of Notes; and whereas on
14 July 1972 the Government of Iceland issued Regulations to that effect;
20. Whereas the contention of the Government of Iceland in its letter of 27
June 1972, that the above-quoted clause contained in the Exchange of Notes
of 19 July 1961 has been terminated, and the question raised by that
Government in its message of 28 July 1972 as to the date of the acceptance
of the Court's jurisdiction by the Federal Republic, will fall to be
examined by the Court in due course;
21. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the merits themselves and
leaves unaffected the right of the Respondent to submit arguments against
such jurisdiction or in respect of such merits;
22. Whereas the right of the Court to indicate provisional measures as
provided for in Article 41 of the Statute has as its object to preserve the
respective rights of the parties pending the decision of the Court, and
presupposes that irreparable prejudice should not be caused to rights which
are the subject of dispute in judicial proceedings and that the Court's
judgment should not be anticipated by reason of any initiative regarding
the measures which are in issue;
23. Whereas the immediate implementation by Iceland of its Regulations
would, by anticipating the Court's judgment, prejudice the rights claimed by
the Federal Republic and affect the possibility of their full restoration in
the event of a judgment in its favour;
24. Whereas it is also necessary to bear in mind the exceptional importance
of coastal fisheries to the Icelandic economy as expressly recognised by
the Federal Republic in its Note addressed to the Foreign Minister of
Iceland dated 19 July 1961;
25. Whereas from that point of view account must be taken of the need for
the conservation of fish stocks in the Iceland area;
26. Whereas the total catch by vessels of the Federal Republic in that area
in the year 1970 was 111,000 metric tons and in the year 1971 was 123,000
metric tons; and whereas the figure of 120,000 metric tons mentioned in the
Federal Republic's request for interim measures was based on the average
annual catch for the period 1960-1969;
27. Whereas in the Court's opinion the average of the catch should, [p 35]
for purposes of interim measures, and so as to reflect the present situation
concerning fisheries of different species in the Iceland area, be based on
the available statistical information before the Court for the five years
1967-1971, which produces an approximate figure of 119,000 metric tons.
Accordingly,
The Court,
by fourteen votes to one,
(1) Indicates, pending its final decision in the proceedings instituted on 5
June 1972 by the Federal Republic of Germany against the Republic of
Iceland, the following provisional measures:
(a) the Federal Republic of Germany and the Republic of Iceland should each
of them ensure that no action of any kind is taken which might aggravate or
extend the dispute submitted to the Court;
(b) the Federal Republic of Germany and the Republic of Iceland should each
of them ensure that no action is taken which might prejudice the rights of
the other Party in respect of the carrying out of whatever decision on the
merits the Court may render;
(c) the Republic of Iceland should refrain from taking any measures to
enforce the Regulations of 14 July 1972 against vessels registered in the
Federal Republic and engaged in fishing activities in the waters around
Iceland outside the 12-mile fishery zone:
(d) the Republic of Iceland should refrain from applying administrative,
judicial or other sanctions or any other measures against ships registered
in the Federal Republic, their crews or other related persons, because of
their having engaged in fishing activities in the waters around Iceland
outside the 12-mile fishery zone;
(e) the Federal Republic should ensure that vessels registered in the
Federal Republic do not take an annual catch of more than 119,000 metric
tons of fish from the "Sea Area of Iceland" as defined by the International
Council for the Exploration of the Sea as area Va;
(f) the Government of the Federal Republic should furnish the Government of
Iceland and the Registry of the Court with all relevant information, orders
issued and arrangements made concerning the control and regulation of fish
catches in the area.
(2) Unless the Court has meanwhile delivered its final judgment in the [p
36] case, it shall, at an appropriate time before 15 August 1973, review the
matter at the request of either Party in order to decide whether the
foregoing measures shall continue or need to be modified or revoked.
Done in English and in French, the English text being authoritative, at the
Peace Palace. The Hague, this seventeenth day of August, one thousand nine
hundred and seventy-two, in four copies, one of which will be placed in the
archives of the Court, and the others transmitted respectively to the
Government of the Republic of Iceland, to the Government of the Federal
Republic of Germany, and to the Secretary-General of the United Nations for
transmission to the Security Council.
(Signed) Zafrulla Khan,
President.
(Signed) S. Aquarone,
Registrar.
Vice-President Ammoun and Judges FORSTER and Jim�nez de Ar�chaga make the
following joint declaration:
We have voted for this Order taking into account that the serious problems
of the contemporary law of the sea which arise in this case are part of the
merits, are not in issue at the present stage of the proceedings and have
not in any way been touched upon by the Order. When indicating interim
measures the Court must only take into account whether, if action is taken
by one of the Parties pending the judicial proceedings, there is likelihood
of irremediable damage to the rights which have been claimed before it and
upon which it would have to adjudicate. It follows therefore that a vote for
this Order cannot have the slightest implication as to the validity or
otherwise of the rights protected by such Order or of the rights claimed by
a coastal State dependent on the fish stock of its continental shelf or of a
fishery zone. Those substantive questions have not been prejudged at all
since the Court will, if it declares itself competent, examine them, after
affording the Parties the opportunity of arguing their cases.
Judge Padilla Nervo appends a dissenting opinion to the Order of the Court.
(Initialled) Z. K.
(Initialled) S. A.
[p 37]
Dissenting opinion of judge Padilla Nervo
I am unable to concur in the Order of the Court, and therefore I voted
against its adoption.
In my view, the Court should not have indicated measures of protection.
Notwithstanding contrary opinion, the special features of this case do not
justify such measures against a State which denies the jurisdiction of the
Court, which is not a party to these proceedings and whose rights as a
sovereign State are thereby interfered with.
The claim of the Republic of Iceland to extend its fisheries jurisdiction to
a zone of 50 nautical miles around Iceland, has not been proved to be
contrary to international law.
The question regarding the jurisdiction of the Court has not been fully
explored. It relies mainly as a source of its jurisdiction on the Exchange
of Notes of 19 July 1961, an agreement which the Republic of Iceland
contends has fully achieved its purpose and object, and the provisions of
which it considers no longer to be applicable and, consequently,
terminated.
The Minister for Foreign Affairs of Iceland sent to the Registrar on 27 June
1972 a letter regarding the filing on 5 June 1972 of an Application by the
Government of the Federal Republic of Germany, instituting proceedings
against Iceland.
With that letter were sent several documents dealing with the background
and termination of the Agreement of 19 July 1961, and "with the changed
circumstances resulting from the ever-increasing exploitation of the fishery
resources in the seas surrounding Iceland".
The letter refers to the dispute with the Federal Republic, which opposed
the 12-mile fishery limit established by the Icelandic Government in 1958,
and to the 1961 Exchange of Notes.
Iceland states that "the 1961 Exchange of Notes took place under extremely
difficult circumstances".
Paragraph 5 of the Application by the Federal Republic instituting
proceedings refers to
"incidents involving, on the one hand, Icelandic coastguard vessels and, on
the other hand, British fishing vessels and fisheries protection vessels of
the Royal Navy of the United Kingdom".
It appears from the above-quoted statements, that such circumstances were
not the most appropriate to negotiate and conclude the 1961 Agreement. [p
38]
The Foreign Minister of Iceland further indicates:
"The agreement by which that dispute was settled, and consequently the
possibility of such recourse to the Court (to which the Government of
Iceland was consistently opposed as far as concerns disputes over the extent
of its exclusive fisheries jurisdiction), was not of a permanent nature. In
particular, an undertaking for judicial settlement cannot be considered to
be of a permanent nature. There is nothing in that situation, or in any
general rule of contemporary international law, to justify any other view.
After the termination of the agreement recorded in the Exchange of Notes of
1961, there was on 5 June 1972 no basis under the Statute for the Court to
exercise jurisdiction in the case to which the Government of the Federal
Republic refers.
The Government of Iceland, considering that the vital interests of the
people of Iceland are involved, respectfully informs the Court that it is
not willing to confer jurisdiction on the Court in any case involving the
extent of the fishery limits of Iceland, and specifically in the case sought
to be instituted by the Government of the Federal Republic of Germany on 5
June 1972."
In the Anglo-Iranian Oil Co. case, Judges Winiarski and Badawi Pasha gave
the following reasons for their dissenting opinion which, in my view, are
applicable and valid in the present case:
"The question of interim measures of protection is linked, for the Court,
with the question of jurisdiction; the Court has power to indicate such
measures only if it holds, should it be only provisionally, that it is
competent to hear the case on its merits." (I.C.J. Reports 1951, p. 96.)
"In international law it is the consent of the parties which confers
jurisdiction on the Court; the Court has jurisdiction only in so far as that
jurisdiction has been accepted by the parties. The power given to the Court
by Article 41 is not unconditional; it is given for the purposes of the
proceedings and is limited to those proceedings. If there is no jurisdiction
as to the merits, there can be no jurisdiction to indicate interim measures
of protection. Measures of this kind in international law are exceptional in
character to an even greater extent than they are in municipal law; they may
easily be considered a scarcely tolerable interference in the affairs of a
sovereign State." (Ibid., p. 97.)
"We find it difficult to accept the view that if prima facie the total lack
of jurisdiction of the Court is not patent, that is, if there is a
possibility, however remote, that the Court may be competent, then it may
indicate interim measures of protection. This approach, which also involves
an element of judgment, and which does not reserve to any greater extent the
right of the Court to give a final decision as to [p 39] its jurisdiction,
appears however to be based on a presumption in favour of the competence of
the Court which is not in consonance with the principles of international
law. In order to accord with these principles, the position should be
reversed: if there exist weighty arguments in favour of the challenged
jurisdiction, the Court may indicate interim measures of protection; if
there exist serious doubts or weighty arguments against this jurisdiction
such measures cannot be indicated." (Ibid., p. 97.)
In my opinion such doubts do exist in the present case.
The Exchange of Notes on which the Application founds the jurisdiction of
the Court, dated 19 July 1961, makes reference to the Resolution of the
Parliament of Iceland of 5 May 1959, which declared that a recognition of
the rights of Iceland to fisheries limits extending to the whole continental
shelf "should be sought".
In the Note of 19 July 1961 it is stated that: "The Icelandic Government
shall continue to work for the implementation of the Althing Resolution of 5
May 1959, regarding the extension of the fishery jurisdiction of Iceland .
. ."
The claim of Iceland that its continental shelf must be considered to be a
part of the country itself, has support in the Convention on this subject,
done at Geneva on 29 April 1958.
This Court, in its Judgment of 20 February 1969, stated:
"... the most fundamental of all the rules of law relating to the
continental shelf, enshrined in Article 2 of the 1958 Geneva Convention,
... namely that the rights of the coastal State in respect of the area of
continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso facto and ab initio, by virtue
of its sovereignty over the land, and as an extension of it in an exercise
of sovereign rights for the purpose of exploring the seabed and exploiting
its natural resources. In short, there is here an inherent right. In order
to exercise it, no special legal process has to be gone through, nor have
any special legal acts to be performed. Its existence can be declared (and
many States have done this) but does not need to be constituted. Furthermore
the right does not depend on its being exercised. To echo the language of
the Geneva Convention, it is 'exclusive' in the sense that if the coastal
State does not choose to explore or exploit the areas of shelf appertaining
to it, that is its own affair, but no one else may do so without its express
consent." (I.C.J. Reports 1969, p. 22, para. 19.)
The Government of Iceland in its information and documents sent to the
Court, has given well-founded reasons and explanations of its sovereign
right to extend its fisheries jurisdiction to the entire continental shelf
area. [p 40]
The coastal fisheries in Iceland have always been the foundation of the
country's economy.
The coastal fisheries are the conditio sine qua non for the Icelandic
economy; without them the country would not have been habitable.
Iceland rests on a platform or continental shelf whose outlines follow those
of the country itself. In these shallow underwater terraces, ideal
conditions are found for spawning areas and nursery grounds upon whose
preservation and utilization the livelihood of the nation depends. It is
increasingly being recognized that coastal fisheries are based on the
special conditions prevailing in the coastal areas which provide the
necessary environment for the fishstocks. This environment is an integral
part of the natural resources of the coastal State.
The continental shelf is really the platform of the country and must be
considered to be a part of the country itself.
The vital interests of the Icelandic people are therefore at stake. They
must be protected.
The priority position of the coastal State has then always been recognized
through the system of fishery limits. In the past these limits have to a
great extent not been established with any regard to the interests of the
coastal State. They owe their origin rather to the preponderant influence of
distant water fishery nations, who wished to fish as close as possible to
the shores of other nations, frequently destroying one area and then
proceeding to another.
In a system of progressive development of international law the question of
fishery limits has to be reconsidered in terms of the protection and
utilization of coastal resources regardless of other considerations which
apply to the extent of the territorial sea. The international community has
increasingly recognized that the coastal fishery resources are to be
considered as a part of the natural resources of the coastal State. The
special situation of countries who are overwhelmingly dependent on coastal
fisheries, was generally recognized at both Geneva Conferences in 1958 and
1960. Since then this view has found frequent expression both in the
legislation of various countries and in important political statements. The
course of events is decidedly progressing in this direction.
Reiterating the considerations which lead the Government of Iceland to issue
new regulations relating to exclusive fisheries jurisdiction in the
continental shelf area, it stated the following:
"In the aide-memoire of 31 August, 1971, it was intimated that in order to
strengthen the measures of protection essential to safeguard the vital
interests of the Icelandic People in the seas surrounding its coasts, the
Government of Iceland now finds it essential to extend further the zone of
exclusive fisheries jurisdiction around its coasts to include the areas of
sea covering the continental shelf. [p 41]
It was further stated that in the opinion of the Icelandic Government, the
object and purpose of the provisions in the 1961 Exchange of Notes for
recourse to judicial settlement in certain eventualities have been fully
achieved. The Government of Iceland, therefore, considers the provisions of
the Notes exchanged no longer to be applicable and consequently terminated."
(Government of Iceland's Aide-M�moire of 24 February 1972, Annex H to
Application of the Federal Republic.)
". . . In the period of ten years which has elapsed, the Government of the
Federal Republic enjoyed the benefit of the Icelandic Government's policy
to the effect that further extension of the limits of exclusive fisheries
jurisdiction would be placed in abeyance for a reasonable and equitable
period. Continuation of that policy by the Icelandic Government, in the
light of intervening scientific and economic evolution (including the ever
greater threat of increased diversion of highly developed fishing effort to
the Icelandic area) has become excessively onerous and unacceptable, and is
harmful to the maintenance of the resources of the sea on which the
livelihood of the Icelandic people depends." (Government of Iceland's
Aide-M�moire of 31 August 1971, Annex D to Application of the Federal
Republic.)
In the request by the Government of the Federal Republic for the indication
of interim measures of protection the grounds of the request are stated at
length.
It is stated therein that Iceland's regulations to extend the limits of its
fisheries jurisdiction, if carried into effect for any substantial period,
would result in an immediate and irreparable damage to the fisheries of the
Federal Republic of Germany and the related industries, and that such damage
could not be remedied by the payment of an indemnization by Iceland.
Another argument is that the distant water fishing vessels of the Federal
Republic of Germany cannot compensate the loss of their fishing grounds off
Iceland by directing their activities to other areas; the range of wet fish
trawlers is limited by technical and economic factors.
It is claimed that any intensification of fishing effort by vessels of the
Federal Republic diverted from the Iceland area would (among other things)
depress the profits of the traditional coastal fisheries in the nearer
fishing grounds of the fleet of the Federal Republic.
The request for interim measures states (para. 13):
"It can be concluded therefore that trawlers such as have been fishing
traditionally in the high seas around Iceland which are equipped with
expensive technical gear and which operate on high [p 42] costs, could not,
if excluded from the high seas around Iceland, hope to find other fishing
grounds where they could continue their activities under comparable and
economic conditions."
Not only Iceland but many coastal States in all regions of the world know by
experience the harmful effects of the ever greater threat of highly
developed fishing effort near their shores, by foreign fishing fleets
equipped�like the modern trawlers of the Federal Republic of Germany�with
expensive technical gear.
The arguments developed in the request for measures of protection and in the
oral hearing of 2 August 1972, appear, in my view, to have as their real
object the protection of the interests, financial or economic, of private
fishing enterprises rather than the "rights" of the Federal Republic.
Furthermore, the existence of those rights cannot be taken for granted. This
matter belongs to the merits of the case, to be decided when the Court deals
with them.
The assertion that the indication or interim measures of protection in no
way prejudges the rights which the Court may subsequently adjudge to belong
either to the Applicant or to the Respondent, is an assertion contradicted
by the obvious implication that questionable rights are presumed to exist by
the mere fact of indicating measures intended to protect them.
The measures indicated in the Order have the character of a preliminary
decision on the merits. The implementation of those measures will amount to
execution of such a preliminary decision. This fact cannot be denied simply
by asserting that such measures in no way prejudge the substance of the
case.
The claim of immediate and irreparable damage is based on the assumption
that the dispute on the merits or even the jurisdictional issue, will not be
settled by the Court for many years.
That is a wrong assumption and therefore the plea of a disruption of the
whole fishing industry will not have any force or weight if the Court, as
should be expected, does consider the matter of jurisdiction before the end
of this year.
The Applicant has invoked Article 53 of the Statute and calls upon the Court
to decide in favour of its claim.
According to paragraph 2 of that Article, the Court must, first of all,
satisfy itself that it has jurisdiction.
Relevant to the issue of jurisdiction is the provision in Article 61,
paragraph 1, of the Rules: "A request for the indication of interim
measures of protection may be filed at any time during the proceedings in
the case in connection with which it is made."
The objective requirement ratione temporis for the exercise of this
jurisdiction is, that the request is filed during the proceedings in the
case.[p 43]
"If it is clear on the face of the document instituting proceedings that the
jurisdiction of the Court to hear the case on its merits requires some step
on the part of the respondent State for its perfection, then, . . . there
will be no 'proceedings' and consequently no inherent jurisdiction to
indicate provisional measures, until that step has been taken." (Rosenne,
The Law and Practice of the International Court. Chap. XII, Incidental
Jurisdiction, p. 424.)
The Government of Iceland, on 28 July 1972, acknowledged receipt of a
telegram from the Registrar of the Court concerning the request of the
Federal Republic of Germany, for interim measures, filed 21 July 1972. The
message from the Government of Iceland states in part:
". . . there is no basis for the request to which your telegram refers. In
any event the Application of 5 June �972 refers to the legal position of the
two States and not to the economic position of certain private enterprises
or other interests in one of those States . . . Without prejudice to any of
its previous arguments the Government of Iceland objects specifically to the
indication by the Court of provisional measures under Article 41 of the
Statute and Article 61 of the Rules of the Court in the case to which the
Government of the Federal Republic refers, where no basis for jurisdiction
is established." (Emphasis added.)
In the Exchange of Notes of 19 July 1961, the agreement already envisaged
the prospect that the Republic of Iceland would extend the fisheries
jurisdiction beyond the 12-mile limit.
If it is contrary to international law to envisage such extension, the
Federal Republic of Germany and the United Kingdom would not have accepted
the inclusion of such statement in the formal exchange of notes.
There is in such exchange of notes an implicit recognition of the right of
Iceland to extend its fisheries jurisdiction.
The Federal Republic, in view of its recognition of the exceptional
importance of coastal fisheries to the Icelandic economy, accepted the
proposals put forward by the Government of Iceland, among them, the proposal
contained in paragraph 5, which states that "the Government of Iceland shall
continue to work for the implementation of the Althing Resolution of 5 May
1959 regarding the extension of the fishery jurisdiction of Iceland", which
declares that a recognition of its rights to the whole continental shelf
should be sought, as provided in the Law concerning the Scientific
Conservation of the Continental Shelf Fisheries of 1948.
The Federal Republic did not object to the existence of such rights, it
accepted the proposal which contained as counterpart or consideration [p 44]
the obligation of Iceland to give six months' notice of any such extension.
If a dispute did arise in respect of such extension, it would not affect the
previous implicit recognition of Iceland's right to extend its fisheries
jurisdiction.
The most essential asset of coastal States is to be found in the living
resources of the sea covering their continental shelf and in the fishing
zone contiguous to their territorial sea.
The progressive development of international law entails the recognition of
the concept of the patrimonial sea, which extends from the territorial
waters to a distance fixed by the coastal State concerned, in exercise of
its sovereign rights, for the purpose of protecting the resources on which
its economic development and the livelihood of its people depends.
This concept is not a new one. It has found expression in-declarations by
many governments proclaiming as their international maritime policy, their
sovereignty and exclusive fisheries jurisdiction over the sea contiguous to
their shores.
There are nine States which have adopted a distance of 200 nautical miles
from their shores as their exclusive fisheries jurisdiction. Some of them
have enacted and enforced regulations to that effect since 20 years ago,
when the "Santiago Declaration" was signed by the Governments of Chile,
Ecuador and Peru in August 1952.
My last observation is the following. The claim of irremediable damages to
the Applicant has not, in my opinion, been proved. They are only allegations
that the fishing enterprises would suffer financial losses and also
allegations that the eating habits of people in the countries concerned will
be disturbed. Such an argument cannot, in my opinion, be opposed to the
sovereign rights of Iceland over its exclusive jurisdiction and the
protection of the living resources of the sea covering its continental
shelf. The Order does not strike, in my view, a fair balance between the two
sides as required by the relevant article of the Statute. The restrictions
indicated in the Order are obviously against Iceland, interfering with its
unlimited right to legislate over its own territory as it considers it
essential (cf. para. 1, sub-para. (d), of the operative clause of the
Court's Order). In the measures indicated in that Order the only substantial
restriction to the Applicant consists in limiting the amount of its annual
catch to 119,000 metric tons instead of its claim to 120,000 metric tons,
1,000 metric tons less than the Applicant had asked for in its request for
measures of protection. All the other measures of protection requested in
the Application the Court had accepted. On this aspect also I am not able to
agree with the indication of measures in the Order of the Court.
(Signed) Luis Padilla Nervo. |
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