|
[p3]
The Court,
composed as above,
delivers the following Judgment:
1. By a letter of 14 April 1972, received in the Registry of the Court the
same day, the Charg� d'Affaires of the British Embassy in the Netherlands
transmitted to the Registrar an Application instituting proceedings against
the Republic of Iceland in respect of a dispute concerning the then proposed
extension by the Government of Iceland of its fisheries jurisdiction. In
order to found the jurisdiction of the Court, the Application relied on
Article 36, paragraph 1, of the Statute of the Court and on an Exchange of
Notes between the Government of the United Kingdom and the Government of
Iceland dated 11 March 1961.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of Iceland. In accordance with
paragraph 3 of that Article, all other States entitled to appear before the
Court were notified of the Application.[p6]
3. By a letter dated 29 May 1972 from the Minister for Foreign Affairs of
Iceland, received in the Registry on 31 May 1972, the Court was
informed(inter alia) that the Government of Iceland was not willing to
confer jurisdiction on the Court and would not appoint an Agent.
4. On 19 July 1972, the Agent of the United Kingdom filed in the Registry of
the Court a request for the indication of interim measures of protection
under Article 41 of the Statute and Article 61 of the Rules of Court adopted
on 6 May 1946. By an Order dated 17 August 1972, the Court indicated certain
interim measures of protection in the case.
By an Order dated 18 August 1972, the Court, considering that it was
necessary to resolve first of all the question of its jurisdiction in the
case, decided that the first pleadings should be addressed to the question
of the jurisdiction of the Court to entertain the dispute, and fixed
time-limits for the filing of a Memorial by the Government of the United
Kingdom and a Counter-Memorial by the Government of Iceland. The Memorial of
the Government of the United Kingdom was filed within the time-limit
prescribed, and was communicated to the Government of Iceland. No
Counter-Memorial was filed by the Government of Iceland and, the written
pro-ceedings being thus closed, the case was ready for hearing on 9 December
1972, the day following the expiration of the time-limit fixed for the
Counter-Memorial of the Government of Iceland.
5. The Governments of Ecuador, the Federal Republic of Germany and Senegal
requested that the pleadings and annexed documents in this case should be
made available to them in accordance with Article 44, paragraph 2, of the
Rules of Court. The Parties having indicated that they had no objection, it
was decided to accede to these requests. Pursuant to Article 44, paragraph
3, of the Rules of Court, the pleadings and annexed documents were, with the
consent of the Parties, made accessible to the public as from the date of
the opening of the oral proceedings.
6. On 5 January 1973, after due notice to the Parties, a public hearing was
held in the course of which the Court heard the oral argument on the
question of the Court's jurisdiction advanced by Sir Peter Rawlinson on
behalf of the Government of the United Kingdom. The Government of Iceland
was not represented at the hearing.
7. In the course of the written proceedings, the following submissions were
presented on behalf of the Government of the United Kingdom:
in the Application:
"The United Kingdom asks the Court to adjudge and declare:
a) That there is no foundation in international law for the claim by Iceland
to be entitled to extend its fisheries jurisdiction by establishing a zone
of exclusive fisheries jurisdiction extending to 50 nautical miles from the
baselines hereinbefore referred to; and that its claim is therefore invalid;
and
b) that questions concerning the conservation of fish stocks in the waters
around Iceland are not susceptible in international law to regulation by the
unilateral extension by Iceland of its exclusive fisheries jurisdiction to
50 nautical miles from the aforesaid baselines but are matters that may be
regulated, as between Iceland and the United Kingdom, by arrangements agreed
between those two countries, whether or not together with other interested
countries and whether in the form of arrangements reached in accordance
[p7]with the North-East Atlantic Fisheries Convention of 24 January 1959, or
in the form of arrangements for collaboration in accordance with the
Resolution on Special Situations relating to Coastal Fisheries of 26 April
1958, or otherwise in the form of arrangements agreed between them that give
effect to the continuing rights and interests of both of them in the
fisheries of the waters in question."
in the Memorial:
"The Government of the United Kingdom submit to the Court that they are
entitled to a declaration and judgment that the Court has full jurisdiction
to proceed to entertain the Application by the United Kingdom on the merits
of the dispute."
8. At the close of the oral proceedings, the following written submissions
were filed in the Registry of the Court on behalf of the Government of the
United Kingdom:
"The Government of the United Kingdom contend
a) that the Exchange of Notes of 11 March, 1961, always has been and remains
now a valid agreement;
b) that, for the purposes of Article 36 (1) of the Statute of the Court, the
Exchange of Notes of 11 March, 1961, constitutes a treaty or convention in
force, and a submission by both parties to the jurisdiction of the Court in
case of a dispute in relation to a claim by Iceland to extend its fisheries
jurisdiction beyond the limits agreed in that Exchange of Notes;
c) that, given the refusal by the United Kingdom to accept the validity of
unilateral action by Iceland purporting to extend its fisheries limits (as
manifested in the Aides-Memoires of the Government of Iceland of 31 August,
1971, and 24 February, 1972, the Resolution of the Althing of 15 February,
1972, and the Regulations of 14 July,1972, issued pursuant to that
Resolution), a dispute exists between Iceland and the United Kingdom which
constitutes a dispute within the terms of the compromissory clause of the
Exchange of Notes of 11 March, 1961;
d) that the purported termination by Iceland of the Exchange of Notes of 11
March, 1961, so as to oust the jurisdiction of the Court is without legal
effect; and
e) that, by virtue of the Application Instituting Proceedings that was filed
with the Court on 14 April, 1972, the Court is now seised of jurisdiction in
relation to the said dispute.
Accordingly, the Government of the United Kingdom submit to the Court that
they are entitled to a declaration and judgment that the Court has full
jurisdiction to proceed to entertain the Application by the United Kingdom
on the merits of the dispute."
10. No pleadings were filed by the Government of Iceland, which was also not
represented at the oral proceedings, and no submissions were therefore
presented on its behalf. The attitude of that Government with regard to the
question of the Court's jurisdiction was however defined in the
above-mentioned letter of 29 May 1972 from the Minister for Foreign Affairs
of Iceland. After calling attention to certain documents that letter stated:
[p8]
"Those documents deal with the background and termination of the
agreement recorded in the Exchange of Notes of 11 March 1961, and with the
changed circumstances resulting from the ever-increasing exploitation of the
fishery resources in the seas surrounding Iceland."
The letter concluded by saying:
"After the termination of the Agreement recorded in the Exchange of
Notes of 1961, there was on 14 April 1972 no basis under the Statute for the
Court to exercise jurisdiction in the case to which the United Kingdom
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 United Kingdom of Great Britain
and Northern Ireland on 14 April 1972.
Having regard to the foregoing, an Agent will not be appointed to represent
the Government of Iceland."
In a telegram to the Court dated 4 December 1972, the Minister for Foreign
Affairs of Iceland stated that the position of the Government of Iceland was
unchanged.
*****
11. The present case concerns a dispute between the Government of the United
Kingdom and the Government of Iceland occasioned by the claim of the latter
to extend its exclusive fisheries jurisdiction to a zone of 50 nautical
miles around Iceland. In the present phase it concerns the competence of the
Court to hear and pronounce upon this dispute. The issue being thus limited,
the Court will avoid not only all expressions of opinion on matters of
substance, but also any pronouncement which might prejudge or appear to
prejudge any eventual decision on the merits.
12. It is to be regretted that the Government of Iceland has failed to
appear in order to plead the objections to the Court's jurisdiction which it
is understood to entertain. Nevertheless the Court, in accordance with its
Statute and its settled jurisprudence, must examine proprio motu the
question of its own jurisdiction to consider the Application of the United
Kingdom. Furthermore, in the present case the duty of the Court to make this
examination on its own initiative is reinforced by the terms of Article 53
of the Statute of the Court. According to this provision, whenever one of
the parties does not appear before the Court, or fails to defend its case,
the Court, before finding upon the merits, must satisfy itself that it has
jurisdiction. It follows from the failure of Iceland to appear in this phase
of the case that it has not observed the terms of Article 62, paragraph 2,
of the Rules of Court, which requires inter alia [p9] that a State objecting
to the jurisdiction should "set out the facts and the law on which the
objection is based", its submissions on the matter, and any evidence which
it may wish to adduce. Nevertheless the Court, in examining its own
jurisdiction, will consider those objections which might, in its view, be
raised against its jurisdiction.
***
13. To found the jurisdiction of the Court in the proceedings, the Applicant
relies on Article 36, paragraph 1, of the Court's Statute, which provides
that: "The jurisdiction of the Court comprises ... all matters specially
provided for ... in treaties and conventions in force"; and on the
penultimate paragraph (the "compromissory clause") of the Exchange of Notes
between the Government of the United Kingdom and the Government of Iceland
of 11 March 1961 (the "1961 Exchange of Notes"), which provides:
"The Icelandic Government will continue to work for the implementation
of the Althing Resolution of May 5, 1959, regarding the extension of
fisheries jurisdiction around Iceland, but shall give to the United Kingdom
Government six months' notice of such extension, and, in case of a dispute
in relation to such extension, the matter shall, at the request of either
party, be referred to the International Court of Justice."
In its resolution of 5 May 1959 the Althing (the Parliament of Iceland) had
declared:
". . . that it considers that Iceland has an indisputable right to fishery
limits of 12 miles, that recognition should be obtained of Iceland's right
to the entire continental shelf area in conformity with the policy adopted
by the Law of 1948, concerning the Scientific Conservation of the
Continental Shelf Fisheries and that fishery limits of less than 12 miles
from base-lines around the country are out of the question".
14. The meaning of the expression "extension of fisheries jurisdiction" in
the compromissory clause must be sought in the context of this Althing
resolution and of the complete text of the 1961 Exchange of Notes, in which
the two contracting parties, referring to the discussions which had taken
place concerning a fisheries dispute between them, stated that they were
willing to settle that dispute on the following basis: The United Kingdom,
for its part, agreed that it "will no longer object to a twelve-mile fishery
zone around Iceland" (paragraph 1 of the Notes), measured from certain
designated baselines relating to the delimitation of that zone(paragraph 2).
It futher agreed to a three-year transitional period during which vessels
registered in the United Kingdom might fish within the outer six miles of
the 12-mile zone, subject to certain specified times and exclusions with
respect to designated areas (paragraphs 3 and 4). It also[p10]recognized (in
the compromissory clause) that the Icelandic Government "will continue to
work for the implementation of the Althing Resolution of May 5, 1959"
regarding its extension of fisheries jurisdiction. The Icelandic Government,
for its part, agreed in that clause to give six months' notice of such
extension and also agreed therein that "in case of a dispute in relation to
such extension, the matter shall, at the request of either party, be
referred to the International Court of Justice".
15. In an aide-memoire of 31 August 1971 the Government of Iceland gave
notice to the United Kingdom Government that it "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", adding
that: "It is contemplated that the new limits, the precise boundaries of
which will be furnished at a later date, will enter into force not later
than 1 September, 1972." In answer to this notice, the United Kingdom
Government advised the Government of Iceland on 27 September 1971 of its
view "that such an extension of the fishery zone around Iceland would have
no basis in international law". It also reserved its rights under the 1961
Exchange of Notes, "including the right to refer disputes to the
International Court of Justice".
16. There is no doubt in the present case as to the fulfilment by the United
Kingdom of its part of the agreement embodied in the 1961Exchange of Notes
concerning the recognition of a 12-mile fishery zone around Iceland, and the
phasing-out during a period of three years of fishing by British vessels
within that zone. There is no doubt either that a dispute has arisen between
the parties and that it has persisted despite the negotiations which took
place in 1971 and 1972. This dispute clearly relates to the extension by
Iceland of its fisheries jurisdiction beyond the12-mile limit in the waters
above its continental shelf, as contemplated in the Althing resolution of 5
May 1959.
17. Equally, there is no question but that Iceland gave the United Kingdom
the required notice of extension. In consequence, the United Kingdom having
disputed the validity, not of the notice but of the extension, the only
question now before the Court is whether the resulting dispute falls within
the compromissory clause of the 1961 Exchange of Notes as being one for
determination by the Court. Since, on the face of it, the dispute thus
brought to the Court upon the Application of the United Kingdom falls
exactly within the terms of this clause, the Court would normally apply the
principle it reaffirmed in its 1950 Advisory Opinion concerning the
Competence of the General Assembly for the Admission of a State to the
United Nations, according to which there is no occasion to resort to
preparatory work if the text of a convention is [p11]sufficiently clear in
itself. However, having regard to the peculiar circumstances of the present
proceedings, as set forth in paragraph 12 above, and in order fully to
ascertain the scope and purpose of the 1961 Exchange of Notes, the Court
will undertake a brief review of the negotiations that led up to that
exchange.
***
18. The records of these negotiations which were drawn up by and have been
brought to the Court's attention by the Applicant, as well as certain
documents exchanged between the two Governments, show that, as early as 5
October 1960, it had become apparent that the United Kingdom would accept in
principle Iceland's right to exclusive fisheries jurisdiction within the
12-mile limit following the end of a transitional period. However, the
Government of the United Kingdom sought an assurance that there would be no
further extensions of Icelandic fisheries jurisdiction excluding British
vessels, in implementation of the Althing resolution, except in conformity
with international law. In the course of the discussions concerning this
point both parties accepted the notion that disputes arising from such
further extensions should be submitted to third-party decision. The
Government of Iceland preferred recourse to arbitration, a position
consistent with the proposals it had put forward and the attitude it had
adopted at both Conferences on the Law of the Sea in 1958 and 1960. Its
representatives are recorded in the documents brought to the Court's
attention as having proposed in the bilateral negotiations on 28 October
1960 the following:
"The Icelandic Government reserves its right to extend fisheries
jurisdiction in Icelandic waters in conformity with international law. Such
extension would, however, be based either on an agreement (bilateral or
multilateral) or decisions of the Icelandic Government which would be
subject to arbitration at the request of appropriate parties."
For its part, the Government of the United Kingdom preferred that disputes
be referred to the International Court of Justice. Equally, the
representatives of Iceland, while having indicated their preference for
arbitration, expressed in later meetings, and specifically on 4 November
1960, their willingness to accept the International Court of Justice as the
appropriate forum. Subsequent exchanges of drafts consistently contained a
specific reference to the Court, which was finally included in the 1961
Exchange of Notes. In placing the terms of the proposed Exchange of Notes
before the Althing on 28 February 1961, the Government of Iceland presented
a memorandum which included the following statement concerning this
point:[p12]"The Government declares that it will continue to work for the
implementation of the Althing resolution of 5 May, 1959, regarding the
extensions of the fisheries jurisdiction around Iceland. Such an extension
would, however, be notified to the British Government six months in advance,
and if a dispute arises in connection with these measures, this shall be
referred to the International Court of Justice, should either one of the
parties request it." (Emphasis added.)
19. The representatives of Iceland having accepted the proposal for
reference to the International Court of Justice, discussion continued as to
the precise formulation of the compromissory clause, including, in
particular, the method whereby the agreement to have recourse to the Court
would be effected. On 3 December 1960 the Icelandic delegation is recorded
as having proposed the following text:
"The Icelandic Government will continue to work for the implementation
of the Althing Resolution of May 5, 1959, regarding the extension of
fisheries jurisdiction around Iceland. Six months notice will be given of
the application of any such extension and in case of dispute the measures
will be referred to the International Court of Justice." (Emphasis added.)
The delegation of the United Kingdom proposed to insert in the last phrase
of this text the words "at the request of either party" in order to make it
clear that the jurisdiction of the Court could be invoked by means of a
unilateral application and need not require a joint submission by both
parties. This however was not immediately agreed to by the Icelandic
delegation. In a draft exchange of Notes put forward by the Government of
Iceland on 10 December 1960 it was proposed that the assurance sought by the
Government of the United Kingdom should be couched in the following terms:
"Icelandic Government will continue to work for implementation of the Althing
Resolution of May 5, 1959, regarding extension of fisheries jurisdiction
around Iceland. Six months' notice will be given of application of any such
extension and in case of dispute the measures will, at the request of the
several parties, be referred to the International Court of Justice."
(Emphasis added.)
This proposal was not accepted by the Government of the United Kingdom,
which on 16 December 1960 submitted a new text of the assurance insisting on
the words "at the request of either party". This text was finally agreed to
by Iceland on 13 February 1961 and the words "at the request of either
party" thus appear in the compromissory clause of the Exchange of Notes.
20. A further point of difference concerned the form to be given to
the[p13]assurance contained in that clause. The proposal for a draft
exchange of Notes put forward by the Government of Iceland on 10 December
1960 was unacceptable to the Government of the United Kingdom for a number
of reasons set out in a Message by the Secretary of State for Foreign
Affairs delivered on 14 December 1960. Included among the objections was the
failure to frame the exchange as an agreement binding on the parties. As
stated in the Message:
"... the assurance should be set out in an Exchange of Notes expressly
stated to constitute an Agreement which would, in Her Majesty's Government's
view, be the only way of binding both parties to accept the jurisdiction of
the International Court of Justice in the event of any dispute arising over
extensions of fishery jurisdiction. We regard this as essential if we are
going to achieve stability in our future fishery relations as we earnestly
desire."
In a letter addressed by the Secretary of S/tate for Foreign Affairs of the
United Kingdom to the Foreign Minister of Iceland on 21 December 1960 it was
also considered�
". . . essential that the terms of the Assurance that any dispute on future
extensions of fishery jurisdiction beyond 12 miles would be referred to the
International Court of Justice, should be embodied in a form which is an
Agreement registered with the Secretariat of the United Nations in
accordance with the provisions of the Charter. Article 102 of the Charter
specifically provides that unless so registered the Agreement cannot be
invoked before any organ of the United Nations.�
This proposal was finally accepted by the Icelandic Government, and the last
sentence of the Note of 11 March 1961 addressed by the Foreign Minister of
Iceland to the British Ambassador reads as follows:
"I have the honour to suggest that this Note and Your Excellency's
reply thereto, confirming that its contents are acceptable to the United
Kingdom Government, shall be registered with the Secretary-General of the
United Nations in accordance with Article 102 of the United Nations Charter
. . ."
This was agreed to in the Note sent on the same date by the British
Ambassador in Reykjavik to the Foreign Minister of Iceland. In its
memorandum to the Althing of 28 February 1961 the Government of Iceland
stated:
"Finally it is provided in the Note that it, together with the reply of the
British Government, where the British Government confirms its contents, be
registered with the Secretary-General of the United [p14]
Nations. In Article 102 of the United Nations Charter it is stated
that only agreements that are so registered can be handled by the
International Court of Justice, should a dispute arise concerning their
implementation. This provision is a direct consequence of what has been said
about reference of the matter to the International Court of Justice."
The Exchange of Notes was registered by the Government of Iceland with the
Secretariat of the United Nations on 8 June 1961.
21. The history of the negotiations not only shows the intentions of the
parties but also explains the significance of the six months' notice
required to be given by the Government of Iceland to the United Kingdom
Government, for on 2 December 1960 the United Kingdom representatives
stated that the assurance they were seeking should provide, inter alia,
that, "pending the Court's decision, any measure taken to give effect to
such a rule will not apply to British vessels". The Foreign Minister of
Iceland is recorded as having replied on the same date that the most
difficult feature of the problem of the assurance was how to deal with the
point that "if there was a dispute, no measure to apply an extension on
fishery limits would be taken pending reference to the International
Court".
22. The idea of a six months' notice to be given by Iceland was first
discussed on 3 December 1960 and was embodied in the formula advanced by the
Icelandic delegation on that same date, which is transcribed in paragraph 19
above. This requirement of notice was agreed to by the parties. It may be
assumed that they considered that such a period would allow sufficient time
to settle the question through negotiations or, if no settlement were
reached, to submit the whole issue to the Court, including, in accordance
with the statutory powers possessed by the Court, the applicability of the
measures of exclusion to British vessels pendente lite. Furthermore, the
interpretation advanced in the letter of 29 May1972 from the Minister for
Foreign Affairs of Iceland to the Registrar of the Court, intimating that
the requirement of notice limited the right of recourse to the Court to the
eventuality that the Icelandic Government should "without warning further
extend the limits" (emphasis added), does not correspond to the text of the
compromissory clause, which clearly relates to the extension of the limits
and not to the notice of extension. Such an interpretation is also to be
discounted in the light of the history of the negotiations.
23. This history reinforces the view that the Court has jurisdiction in this
case, and adds emphasis to the point that the real intention of the parties
was to give the United Kingdom Government an effective assurance which
constituted a sine qua non and not merely a severable condition of the
whole agreement: namely, the right to challenge before the Court the
validity of any further extension of Icelandic fisheries jurisdiction in
the waters above its continental shelf beyond the 12-mile limit. [p15]In
consequence, the exercise of jurisdiction by the Court to entertain the
present Application would fall within the terms of the compromissory clause
and correspond exactly to the intentions and expectations of both Parties
when they discussed and consented to that clause. It thus appears from the
text of the compromissory clause, read in the context of the 1961 Exchange
of Notes and in the light of the history of the negotiations, that the Court
has jurisdiction. It has however been contended that the agreement either
was initially void or has since ceased to operate. The Court will now
consider these contentions.
***
24. The letter of 29 May 1972 addressed to the Registrar by the Minister for
Foreign Affairs of Iceland contains the following statement:
"The 1961 Exchange of Notes took place under extremely difficult
circumstances, when the British Royal Navy had been using force to oppose
the 12-mile fishery limit established by the Icelandic Government in 1958."
This statement could be interpreted as a veiled charge of duress
purportedly rendering the Exchange of Notes void ab initio, and it was
dealt with as such by the United Kingdom in its Memorial. There can be
little doubt, as is implied in the Charter of the United Nations and
recognized in Article 52 of the Vienna Convention on the Law of Treaties,
that under contemporary international law an agreement concluded under the
threat or use of force is void. It is equally clear that a court cannot
consider an accusation of this serous nature on the basis of a vague general
charge unfortified by evidence in its support. The history of the
negotiations which led up to the 1961 Exchange of Notes reveals that these
instruments were freely negotiated by the interested parties on the basis of
perfect equality and freedom of decision on both sides. No fact has been
brought to the attention of the Court from any quarter suggesting the
slightest doubt on this matter.
**
25. In his letter of 29 May 1972 to the Registrar of the Court, the Minister
for Foreign Affairs of Iceland observed that the 1961 agreement "was not of
a permanent nature" and added that:
"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."
This observation, directed against the Court's jurisdiction, appears to
[p16]rest on the following chain of reasoning: (1) inasmuch as the
com-promissory clause contains no provision for termination, it could be
deemed to be of a permanent nature; but (2) a compromissory clause cannot be
of a permanent nature; therefore (3) it must be subject to termination by
giving adequate notice. This reasoning appears to underlie the observation
of the Government of Iceland in its aide-m�moire of 31 August 1971 to the
effect that:
"In the opinion of the Icelandic Government . . . the object and purpose
of the provision for recourse to judicial settlement of certain matters
envisaged in the passage quoted above [i.e., the compromissory clause] have
been fully achieved."
26. It appears to the Court that, although the compromissory clause in the
1961 Exchange of Notes contains no express provision regarding duration, the
obligation it embraces involves an inherent time-factor conditioning its
potential application. It cannot, therefore, be described accurately as
being of a permanent nature or as one binding the parties in perpetuity.
This becomes evident from a consideration of the object of the clause when
read in the context of the Exchange of Notes.
27. The 1961 Exchange of Notes did not set up a definite time-limit within
which the Government of Iceland might make a claim in implementation of the
Althing's resolution. It follows that there could be no specification of a
time-limit for the corresponding right of the United Kingdom to challenge
such an extension and, if no agreement were reached and the dispute
persisted, to invoke the Court's jurisdiction. The right of the United
Kingdom thus to act would last so long as Iceland might seek to implement
the Althing's resolution. This was, of course, within the control of the
Government of Iceland which in 1971, ten years after the Exchange of Notes,
made a claim to exclusive fishery rights over the entire continental shelf
area surrounding its territory and thus automatically brought into play the
right of the United Kingdom to have recourse to the Court.
28. That being so, the compromissory clause in the 1961 Exchange of Notes
may be described as an agreement to submit to the Court, at the unilateral
request of either party, a particular type of dispute which was envisaged
and anticipated by the parties. The right to invoke the Court's jurisdiction
was thus deferred until the occurrence of well-defined future events and was
therefore subject to a suspensive condition. In other words, it was subject
to a condition which could, at any time, materialize if Iceland made a claim
to extend her fishery limits, and the right of recourse to the Court could
be invoked only in that event.
29. The above observations suffice to dispose of a possible objection based
on views expressed by certain authorities to the effect that treaties of
judicial settlement or declarations of acceptance of the compulsory
[p17]jurisdiction of the Court are among those treaty provisions which, by
their very nature, may be subject to unilateral denunciation in the absence
of express provisions regarding their duration or termination. Since those
views cannot apply to a case such as the present one, the Court does not
need to examine or pronounce upon the point of principle involved. It is
sufficient to remark that such views have reference only to instruments in
which the parties had assumed a general obligation to submit to judicial
settlement all or certain categories of disputes which might arise between
them in the unpredictable future. The 1961 Exchange of Notes does not embody
an agreement of this type. It contains a definite compromissory clause
establishing the jurisdiction of the Court to deal with a concrete kind of
dispute which was foreseen and specifically anticipated by the parties. In
consequence, when a dispute arises of precisely the sort contemplated, and
is referred to the Court, the contention that the compromissory clause has
lapsed, or is terminable, cannot be accepted.
***
30. In his statement to the Althing on 9 November 1971, the Prime Minister
of Iceland alluded not only to an alleged change of circumstances with
respect to fisheries and fishing techniques (which will be considered later
in this Judgment), but also to changes regarding "legal opinion on fisheries
jurisdiction". However, the relevance to the compromissory clause of this
allusion is not apparent, since if there is a dispute as to such changes it
would be embraced in the compromissory clause and might be considered as an
issue going to the merits. On the other hand, it could be considered as
relevant to the compromissory clause on an hypothesis familiar in the law of
certain States under the guise of "failure of consideration". As such, it is
linked with the assertion that, the object and purpose of the agreement
having been fulfilled, it no longer has a binding effect for Iceland.
31. It should be observed at the outset that the compromissory clause has a
bilateral character, each of the parties being entitled to invoke the
Court's jurisdiction; it is clear that in certain circumstances it could be
to Iceland's advantage to apply to the Court. The argument of Iceland
appears, however, to be that, because of the general trend of development of
international law on the subject of fishery limits during the last ten
years, the right of exclusive fisheries jurisdiction to a distance of 12
miles from the baselines of the territorial sea has been increasingly
recognized and claimed by States, including the applicant State itself. It
would then appear to be contended that the compromissory clause was the
price paid by Iceland for the recognition at that time of the 12-mile
fishery limit by the other party. It is consequently asserted that if today
the 12-mile fishery limit is generally recognized, there would be a failure
of consideration relieving Iceland of its commitment because of the changed
legal circumstances. It is on this basis that is is possible to interpret
[p18]Prime Minister's statement to the Althing on 9 November 1971, to the
effect that it was unlikely that the agreement would have been made if the
Government of Iceland had known how these matters would evolve.
32. While changes in the law may under certain conditions constitute valid
grounds for invoking a change of circumstances affecting the duration of a
treaty, the Icelandic contention is not relevant to the present case. The
motive which induced Iceland to enter into the 1961 Exchange of Notes may
well have been the interest of obtaining an immediate recognition of an
exclusive fisheries jurisdiction to a distance of 12 miles in the waters
around its territory. It may also be that this interest has in the meantime
disappeared, since a 12-mil fishery zone is now asserted by the other
contracting party in respect of its own fisheries jurisdiction. But in the
present case, the object and purpose of the 1961 Exchange of Notes, and
therefore the circumstances which constituted an essential basis of the
consent of both parties to be bound by the agreement embodied therein, had a
much wider scope. That object and purpose was not merely to decide upon the
Icelandic claim to fisheries jurisdiction up to 12 miles, but also to
provide a means where by the parties might resolve the question of the
validity of any further claims. This follows not only from the text of the
agreement but also from the history of the negotiations, that is to say,
from the whole set of circumstances which must be taken into account in
determining what induced both parties to agree to the 1961 Exchange of
Notes.
33. According to the memorandum submitted by the Government of Iceland to
the Althing on 28 February 1961, together with the proposed Exchange of
Notes, the agreement comprised:
". . . four main points:
1) Britain recognises immediately the 12 mile fishery zone of Iceland.
Britain recognises important changes in the baselines in four places around
the country, which extends the fishery zone by5065 square kilometres.
British ships will be permitted to fish within specified areas between the 6
and 12 mile limits for a limited period each year during the next three
years.
The Government of Iceland declares that it will continue to work for the
implementation of the parliamentary resolution of 5 May, 1959, regarding the
extension of the fisheries jurisdiction around Iceland and that any dispute
on actions that maybe taken, will be referred to the International Court of
Justice."
Undoubtedly certain of these provisions, such as those concerning fishing in
designated areas during a period of three years, had a transitory [p19]
character and may be considered to have become executed. But in contrast
there are other provisions which do not possess that same tran-sitory
character. The compromissory clause is an instance.
34. It is possible that today Iceland may find that some of the motives
which induced it to enter into the 1961 Exchange of Notes have become less
compelling or have disappeared altogether. But this is not a ground
justifying the repudiation of those parts of the agreement the object and
purpose of which have remained unchanged. Iceland has derived benefits from
the executed provisions of the agreement, such as the recognition by the
United Kingdom since 1961 of a 12-mile exclusive fisheries jurisdiction,
the acceptance by the United Kingdom of the baselines established by
Iceland and the relinquishment in a period of three years of the
pre-existing traditional fishing by vessels registered in the United
Kingdom. Clearly it then becomes incumbent on Iceland to comply with its
side of the bargain, which is to accept the testing before the Court of the
validity of its further claims to extended jurisdiction. Moreover, in the
case of a treaty which is in part executed and in part executory, in which
one of the parties has already benefited from the executed provisions of the
treaty, it would be particularly inadmissible to allow that party to put an
end to obligations which were accepted under the treaty by way of quid pro
quo for the provisions which the other party has already executed.
**
35. In his letter of 29 May 1972 to the Registrar, the Minister for Foreign
Affairs of Iceland refers to "the changed circumstances resulting from the
ever-increasing exploitation of the fishery resources in the seas
surrounding Iceland". Judicial notice should also be taken of other
statements made on the subject in documents which Iceland has brought to the
Court's attention. Thus, the resolution adopted by the Althing on 15
February 1972 contains the statement that "owing to changed circumstances
the Notes concerning fishery limits exchanged in 1961 are no longer
applicable".
36. In these statements the Government of Iceland is basing itself on the
principle of termination of a treaty by reason of change of circumstances.
International law admits that a fundamental change in the circumstances
which determined the parties to accept a treaty, if it has resulted in a
radical transformation of the extent of the obligations imposed by it, may,
under certain conditions, afford the party affected aground for invoking the
termination or suspension of the treaty. This principle, and the conditions
and exceptions to which it is subject, have been embodied in Article 62 of
the Vienna Convention on the Law of Treaties, which may in many respects be
considered as a codification of existing customary law on the subject of the
termination of a treaty relationship on account of change of circumstances.
37. One of the basic requirements embodied in that Article is that the
[p20]change of circumstances must have been a fundamental one. In this
respect the Government of Iceland has, with regard to developments in
fishing techniques, referred in an official publication on Fisheries
Jurisdiction in Iceland, enclosed with the Foreign Minister's letter of 29
May 1972 to the Registrar, to the increased exploitation of the fishery
resources in the seas surrounding Iceland and to the danger of still
further exploitation because of an increase in the catching capacity of
fishing fleets. The Icelandic statements recall the exceptional dependence
of that country on its fishing for its existence and economic development.
In his letter of 29 May 1972 the Minister stated:
"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 . . ."
In this same connection, the resolution adopted by the Althing on 15
February 1972 had contained a paragraph in these terms:
"That the Governments of the United Kingdom and the Federal Republic of
Germany be again informed that because of the vital interests of the nation
and owing to changed circumstances the Notes concerning fishery limits
exchanged in 1961 are no longer applicable and that their provisions do not
constitute an obligation for Iceland."
38. The invocation by Iceland of its "vital interests", which were not made
the subject of an express reservation to the acceptance of the
jurisdictional obligation under the 1961 Exchange of Notes, must be
interpreted, in the context of the assertion of changed circumstances, as
an indication by Iceland of the reason why it regards as fundamental the
changes which in its view have taken place in previously existing fishing
techniques. This interpretation would correspond to the traditional view
that the changes of circumstances which must be regarded as fundamental or
vital are those which imperil the existence or vital development of one of
the parties.
39. The Applicant, for its part, contends that the alterations and progress
in fishing techniques have not produced in the waters around Iceland the
consequences apprehended by Iceland and therefore that the changes are not
of a fundamental or vital character. In its Memorial, it points out that, as
regards the capacity of fishing fleets, increases in the efficiency of
individual trawlers have been counter-balanced by the reduction in total
numbers of vessels in national fleets fishing in the waters around Iceland,
and that the statistics show that the total annual catch of demersal species
has varied to no great extent since 1960.
40. The Court, at the present stage of the proceedings, does not need 20
[p21] to pronounce on this question of fact, as to which there appears to be
a serious divergence of views between the two Governments. If, as contended
by Iceland, there have been any fundamental changes in fishing techniques in
the waters around Iceland, those changes might be relevant for the decision
on the merits of the dispute, and the Court might need to examine the
contention at that stage, together with any other arguments that Iceland
might advance in support of the validity of the extension of its fisheries
jurisdiction beyond what was agreed to in the 1961 Exchange of Notes. But
the alleged changes could not affect in the least the obligation to submit
to the Court's jurisdiction, which is the only issue at the present stage of
the proceedings. It follows that the apprehended dangers for the vital
interests of Iceland, resulting from changes in fishing tech-niques, cannot
constitute a fundamental change with respect to the lapse or subsistence of
the compromissory clause establishing the Court's jurisdiction.
41. It should be observed in this connection that the exceptional dependence
of Iceland on its fisheries for its subsistence and economic development is
expressly recognized in the 1961 Exchange of Notes, and the Court, in its
Order of 17 August 1972, stated that "it is also necessary to bear in mind
the exceptional dependence of the Icelandic nation upon coastal fisheries
for its livelihood and economic development as expressly recognized by the
United Kingdom in its Note addressed to the Foreign Minister of Iceland
dated 11 March 1961". The Court further stated that "from this point of view
account must be taken of the need for the conservation of fish stocks in the
Iceland area" (I.C.J. Reports 1972, pp. 16 and 17). This point is not
disputed.
42. Account must also be taken of the fact that the Applicant has contended
before the Court that to the extent that Iceland may, as a coastal State
specially dependent on coastal fisheries for its livelihood or economic
development, assert a need to procure the establishment of a special
fisheries conservation regime (including such a regime under which it enjoys
preferential rights) in the waters adjacent to its coast but beyond the
exclusive fisheries zone provided for by the 1961 Exchange of Notes, it can
legitimately pursue that objective by collaboration and agreement with the
other countries concerned, but not by the unilateral arrogation of exclusive
rights within those waters. The exceptional dependence of Iceland on its
fisheries and the principle of conservation of fish stocks having been
recognized, the question remains as to whether Iceland is or is not
competent unilaterally to assert an exclusive fisheries jurisdiction
extending beyond the 12-mile limit. The issue before the Court in the
present phase of the proceedings concerns solely its jurisdiction to
determine the latter point. [p22]
**
43. Moreover, in order that a change of circumstances may give rise to
a ground for invoking the termination of a treaty it is also necessary that
it should have resulted in a radical transformation of the extent of the
obligations still to be performed. The change must have increased the burden
of the obligations to be executed to the extent of rendering the performance
something essentially different from that originally undertaken. In respect
of the obligation with which the Court is here concerned, this condition is
wholly unsatisfied; the change of circumstances alleged by Iceland cannot be
said to have transformed radically the extent of the jurisdictional
obligation which is imposed in the 1961 Exchange of Notes. The compromissory
clause enabled either of the parties to submit to the Court any dispute
between them relating to an extension of Icelandic fisheries jurisdiction in
the waters above its continental shelf beyond the 12-mile limit. The present
dispute is exactly of the character anticipated in the compromissory clause
of the Exchange of Notes. Not only has the jurisdictional obligation not
been radically transformed in its extent; it has remained precisely what it
was in 1961.
**
44. In the United Kingdom Memorial it is asserted that there is a flaw in
the Icelandic contention of change of circumstances: that the doctrine never
operates so as to extinguish a treaty automatically or to allow an
unchallengeable unilateral denunciation by one party; it only operates to
confer a right to call for termination and, if that call is disputed, to
submit the dispute to some organ or body with power to determine whether the
conditions for the operation of the doctrine are present. In this connection
the Applicant alludes to Articles 65 and 66 of the Vienna Convention on the
Law of Treaties. Those Articles provide that where the parties to a treaty
have failed within 12 months to achieve a settlement of a dispute by the
means indicated in Article 33 of the United Nations Charter (which means
include reference to judicial settlement) any one of the parties may submit
the dispute to the procedure for conciliation provided in the Annex to the
Convention.
45. In the present case, the procedural complement to the doctrine of
changed circumstances is already provided for in the 1961 Exchange of Notes,
which specifically calls upon the parties to have recourse to the Court in
the event of a dispute relating to Iceland's extension of fisheries
jurisdiction. Furthermore, any question as to the jurisdiction of the Court,
deriving from an alleged lapse through changed circumstances,is resolvable
through the accepted judicial principle enshrined in Article36, paragraph 6,
of the Court's Statute, which provides that "in the event of a dispute as to
whether the Court has jurisdiction, the matter shall be settled by the
decision of the Court". In this case such a dispute obviously exists, as can
be seen from Iceland's communications to the Court, and [p23] to the other
Party, even if Iceland has chosen not to appoint an Agent, file a
Counter-Memorial or submit preliminary objections to the Court's
jurisdiction; and Article 53 of the Statute both entitles the Court and, in
the present proceedings, requires it to pronounce upon the question of its
jurisdiction. This it has now done with binding force.
*****
46. For these reasons,
THE COURT,
by fourteen votes to one,
finds that it has jurisdiction to entertain the Application filed by the
Government of the United Kingdom of Great Britain and Northern Ireland on 14
April 1972 and to deal with the merits of the dispute.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this second day of February, one thousand nine
hundred and seventy-three, in three copies, of which one will be placed in
the archives of the Court and the others transmitted to the Government of
the United Kingdom of Great Britain and Northern Ireland and to the
Government of the Republic of Iceland, respectively.
(Signed) Zafrulla Khan,
President.
(Signed) S. Aquarone,
Registrar.
of determining the scope of the Court's jurisdiction, would not only beg
the question but would put the proverbial cart before the horse with a
vengeance and is to be strongly deprecated.
Judge Sir Gerald Fitzmaurice appends a separate opinion to the Judgment of
the Court.
Judge Padilla Nervo appends a dissenting opinion to the Judgment of the
Court.
(Initialled) Z.K.
(Initialled) S.A.
President Sir Muhammad ZAFRULLA KHAN makes the following declaration :
I am in entire agreement with the Judgment of the Court. I consider it
needful, however, to append the following brief declaration.
The sole question before the Court in this phase of these proceedings is
whether, in view of the compromissory clause in the Exchange of Notes of 11
March 1961 between the Government of the United Kingdom and the Government
of Iceland, read with Article 36 (1) of its Statute, the
[p24]Court is competent to pronounce upon the validity of the unilateral
extension by Iceland of its exclusive fisheries jurisdiction from 12 to 50
nautical miles from the baselines agreed to by the parties in 1961. All
considerations tending to support or to discount the validity of Iceland's
action are, at this stage, utterly irrelevant. To call any such
consideration into aid for the purpose of determining the scope of the
Court's jurisdiction, would not only beg the question but would put the
proverbial cart before the horse with a vengeance and is to be strongly
deprecated.
Judge Sir Gerald FITZMAURICE appends a separate opinion to the Judgment of
the Court.
Judge PADILLA NERVO appends a dissenting opinion to the Judgment of the
Court.
(Initialled) Z.K.
(Initialled) S.A.[p25]
SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE
Although I entirely agree with the Judgment of the Court and the reasoning
and considerations on which it is based, there are in my opinion certain
factors which should additionally be brought out, or further stressed.
*****
1. In order to appreciate the true significance of the agreement embodied
in the Exchanges place in March and July 1961between, on the one hand, the
Government of Iceland, and, Governments of the United Kingdom and the
Federal Republic of Germany, respectively, it is necessary to take into
account the state of the law regarding exclusive fisheries jurisdiction, as
it stood at that time, and after the breakdown of the second Geneva Law of
the Sea Conference in the previous year (1960); and also as it was reflected
in the Conventions that resulted from the work of the first Geneva Law of
the Sea Conference in 1958. This is squarely relevant to the jurisdictional
issue now before the Court because, as will be seen, it directly affects the
situation that existed when the Parties entered into the 1961 Exchanges of
Notes, and their motives in doing so. The following review will make this
clear.
2. Although certain countries had (almost invariably for fishery reasons,
whatever the ostensible grounds) claimed waters extending to more than 12
miles from the baselines of the coast�in some instances very much more than
that�none of which claims had, however, received any general
recognition,�there was no denial of the clear-cut distinction of principle
and status between the territorial sea as part, or as an extension of, the
land domain, and the high seas as res communis open to all�the limit of the
one, marking and constituting the start of the other. Nor could�nor can�this
distinction be denied without destroying the whole concept of the high seas,
upon which a major part of maritime international law, as it has been
evolved over several centuries, is founded.
3. Accordingly, while there might be and was controversy as to the
permissible extent, and as to the location of the outer limit of the
territorial sea (or maritime belt as it was sometimes called) there was no
doubt that within it the coastal State possessed imperium (jurisdictio) if
not dominium (proprietas) or its equivalent (the 1958 Geneva Territorial Sea
Convention, Article 1, calls it "sovereignty"); and that it possessed in
consequence exclusive rights of various kinds there,�amongst others
exclusive [p26]fishery rights. But there was equally no doubt that in waters
outside the territorial belt- -these being by definition high seas (see
para. 5 below)- -the coastal Slate had neither imperium nor (and still less)
dominium, nor proprietorial or exclusive rights of any kind, fisheries in no
way excepted.
4. In a zone known as the "contiguous zone", defined by Article 24 of the
1958 Territorial Sea Convention as being what the term implies a "zone of
the high seas contiguous to its territorial sea" -and limited in extent (by
the same provision) to 12 miles from the coastline [FN1], the coastal State
was allowed to "exercise the control necessary" for certain specified
purposes[FN2] which did not include any right of jurisdiction over foreign
vessels in order to prevent them from fishing there. In other parts of the
high seas beyond the contiguous zone, the coastal Stale had no rights of
jurisdiction or control at all, except in respect of its own vessels
generally; and, in respect of foreign vessels, only as recognized in the
1958 Geneva High Seas Convention, namely for the suppression of piracy and
the slave trade, flag verification in certain cases, and as part of the
process known as "hot pursuit" started from within the territorial sea or
contiguous zone in respect of something that would have justified arrest or
stoppage if it could have been effected there.
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[FN1]
This of course implied a territorial sea of less than 12 miles in extent, or
there would be nothing for the contiguous zone to be contiguous to. The
further implication was that a State claiming a 12-mile belt of territorial
sea had no need of a contiguous zone as well. But a country claiming only 3
or 6 miles of territorial sea could still have a contiguous zone of 9 or 6
miles, as the case might be.
[FN2] These were for the prevention and punishment of "infringements of its
[the coastal State's] customs, fiscal, immigration or sanitary regulations
within its territory or territorial sea".
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5. From all this it followed that fishing in any areas that were high seas -
i.e. that were not internal or territorial waters - could only be shared and
not exclusive, since measures for preventing foreign fishing in such areas
would be incompatible with their status as res communis, and the enforcement
of such measures would not be for any of the purposes for which countries
could, as described above, validly exercise jurisdiction on the high seas
over vessels other than their own. This position was reflected in the
provisions of the 1958 Geneva Conventions already referred to or quoted, but
even more fully in Articles 1 and 2 of the High Seas Convention [FN3] which,
according to its Preamble, was adopted as being "generally declaratory of
established principles of international law". Article 1 of this Convention,
and the relevant part of Article 2, in [p27] which the passages of especial
significance in the present context have been italicized, were (and are) as
follows:
Article I
The term "high seas" means all parts of the sea that are not included in
the territorial sea or internal waters.
Article 2
The high seas being open to all nations, no State may validly purport to
subject any part of them to its sovereignty [FN4]. Freedom of the high seas
. . . comprises, inter alia, both for coastal and non-coastal States:
Freedom of navigation;
1) Freedom of fishing;
Freedom to lay submarine cables and pipe-lines;
Freedom to fly over the high seas.
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[FN3] Although the 1958 Geneva Conventions were not technically in force in
l96l(they have all come into force since)- they represented a high degree of
consensus among the 85 countries which attended the Conference.
[FN4] Since, in the absence of treaty or other sufficient agreement,
sovereignty or its equivalent is necessary for the valid exercise of
exclusive property rights in any area, in the sense of prohibiting and
forcibly preventing fishing by others, this expression was really sufficient
in itself to rule out exclusive fishery rights in any areas that were high
seas.
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*
6. The question of fishery conservation was separately dealt with by the
1958 Geneva Conservation Convention, and by the subsequent North-East
Atlantic Fisheries Convention concluded in London on 24 January 1959, of
which Iceland, the Federal Republic and the United Kingdom were all
signatories, and the object of which, according to its preamble, was "to
ensure the conservation of the fish stocks and the rational exploitation of
the fisheries of the North-East Atlantic Ocean and adjacent waters, which
are of common concern to them" (my italics) [FN5]. But agreed measures of
conservation on the high seas for the preservation of common fisheries in
which all have a right to participate, is of course a completely different
matter from a unilateral claim by a coastal State to prevent fishing by
foreign vessels entirely, or to allow it only at the will and under the
control of that State. The question of conservation has therefore no
relevance to the jurisdictional issue now before the Court, which involves
its competence to adjudicate upon a dispute occasioned by Iceland's [p28]
claim unilaterally to assert exclusive jurisdiction for fishery purposes up
to a distance of 50 nautical miles from and around her coasts.
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[FN5] The phrase here italicized was intended to relate to all the waters
covered by the Convention, including�and above all�those of the north-East
Atlantic.
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*
7. Nor did continental shelf doctrine afford any basis for the assertion of
exclusive fishery claims by a coastal State merely on the ground that its
continental shelf underlay the waters concerned. This was made quite clear
by the 1958 Geneva Continental Shelf Convention and. as it happens, was
reflected later in the Judgment of the Court in the North Sea Continental
Shelf case (I.C.J. Reports 1969, p. 3). Article 2 of the Continental Shelf
Convention�which provision was generally regarded as reflecting already
received law�stated that the coastal Stale exercised "sovereign rights" over
the shelf "for the purpose of exploring it and exploiting its natural
resources" [FN6]. But the term "natural resources" was defined in such a
way, in respect of "living organisms", as to cover only "sedentary
species",�i.e., "organisms which . . . either are immobile on or under the
seabed or are unable to move except in constant physical contact with the
seabed or subsoil"�(Art. 2, para. 4). The very purpose of this definition
was to exclude what were colloquially known as "swimming fish", or fish
which, whether they at all times swam or not, were capable of so doing�(and
this of course included what are known as "demersal" species�fish which
spend a part of their time on or near the ocean bed but are swimming fish).
Clearly therefore the Convention reserved nothing to the coastal State by
way of exclusive fishery rights, except in what might be called, in general
terms, sedentary fisheries. It afforded no ground for the assertion of
exclusive fishery rights in waters that were outside the territorial sea,
and therefore high seas. This situation was reflected in the Judgment of the
Court in the Continental Shelf case where, in distinguishing between
territorial sea and continental shelf rights, it was pointed out (I.C.J.
Reports 1969, p. 37, end of para. 59) that
"the sovereign jurisdiction which the coastal Stale is entitled lo
exercise . . . not only over the seabed underneath the territorial waters,
but over the waters themselves, . . . docs not exist in respect of
continental shelf areas where there is no jurisdiction over the super-[29*]
jacent waters, and over the seabed only for purposes of exploration
and exploitation" [FN7]�(my italics).
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[FN6] The object of this wording was, if not to exclude the notion entirely,
at least to reserve the question of full unlimited sovereignty, stricto
sensu, over the continental shelf.
[FN7] For the implications of these last dozen or so words, see preceding
footnote.
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Moreover it is safe to say that the whole notion of continental shelf rights
would never have received the almost universal acceptance it did, not only
at, but well before the Geneva Conference, unless it had been firmly
understood from the start that those rights did not extend to the waters
above the shelf, or to their non-sedentary contents.
**
8.From the foregoing observations it is clear that at the material date,
namely that of the Geneva Law of the Sea Conferences and for some years
after, there was no generally recognized way of validly asserting exclusive
fishery jurisdiction, as such, per solum,�i.e., except as part of a valid
claim to territorial waters, which would automatically imply and carry with
it the related fishery rights. From this it followed that there was no way
of extending any area of exclusive fishery rights except by a valid
extension of territorial waters, unless it could be done by way of agreement
with the other countries fishing in the areas concerned�(a proviso which I
have italicized because of its particular relevance to the jurisdictional
issue now before the Court). It was indeed this situation which then
accounted for and provided much of the motivation for the movement to extend
the limits of the territorial sea, on the part of countries which, mostly,
had little interest in any of the other aspects of an extended territorial
sea, and sometimes a definite disinclination for them [FN8]. Furthermore, it
was evident that there must come a point at which claims to territorial
waters would verge on the absurd, where they went beyond anything in the
nature of waters that could properly be regarded as "territorial", in the
sense of retaining some sort of physical relationship with the land to which
they were supposed to be attached or appurtenant[FN9].
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[FN8]
The territorial sea involves responsibilities as well as rights, which many
countries were unable to discharge satisfactorily outside a relatively
narrow belt, such as for example policing and maintaining order; buoying and
marking channels and reefs. Sand banks and other obstacles; keeping
navigable channels clear, and giving notice of dangers to navigation;
providing rescue services, lighthouses, lightships, bell-buoys, etc.
[FN9] As its name implies, the territorial sea is that part of the sea which
is attached to or washes the land territory and constitutes a natural
extension seaward of the land domain. The dictum of the International Court
of Justice in its North Sea Continental Shelf Judgment about the true nature
of the concept of "adjacency" is as valid for undue extensions of the
territorial sea as it is fur distant points on the continental shelf bed,
-see I.C.J. Reports 1969, at p. 30, para. 41.
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[p30]9. It was in these circumstances, and for these reasons, that the
notion of detaching exclusive fishery rights from their association solely
with, and their dependence on, territorial sea rights, first came to be
propounded. But such a change in the legal position would require general
agreement or understanding; or else, in particular areas, the consent of
the countries whose fishing would be affected. It could not he done
unilaterally. This notion accordingly became the basis of the principal
proposal debated at the second (I960) Geneva Conference, -namely for up to 6
miles of territorial waters, and another 6 miles of exclusive fishery
rights, making, in effect, a total fishery zone of 12 miles, or 9 miles for
countries which elected only to claim 3 miles of territorial sea[FN10].
However, the proposal failed to gain acceptance, though only narrowly, and
the Conference broke up without having reached any agreement either on
territorial sea or fishery limits: so that it was clear that, at the point
then reached, no generally agreed change in the law had taken place.
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[FN10]
This proposal would have caused the permissible fishery limit to coincide
with the permissible limit of the contiguous zone (see para. 4 and footnote
1 above), and would in effect have given the coastal State exclusive fishery
rights in that
zone.
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**
10. Such was the situation when, later in the same year (1960), and in the
following year, the negotiations that led to the I96l Exchange of Notes were
begun and in progress:-and it becomes instantly apparent that Iceland had a
strong interest in securing the immediate recognition of an exclusive
12-miles fishery zone, on the part of two of the principal countries fishing
in North Atlantic waters, whose views on the subject of the extent of
permissible limits were distinctly conservative, a recognition conditioned
only by a transitional period during which these coun-tries' vessels would
retain the right to fish in certain areas within the 12-milc zone for a
restricted period. In addition, Iceland obtained immediate recognition of a
comprehensive series of baselines around her shores from which the 12-mile
fishery limit would be drawn potentially a highly controversial matter
[FN11]. The quid pro quo was Iceland's acceptance of recourse to the Court
if at any time she claimed further to extend her fishery limits:�and it is
abundantly clear that the whole reason why the[p31] United Kingdom and the
Federal Republic, and their respective fishing industries, were willing to
make these concessions�which, at that time, need not have been made, and
were injurious to them economically and in other ways�was precisely the fear
of such possible further claims. Believing as they undoubtedly did that the
state of the law as it then stood did not justify even a 12-mile fishery
limit, except by agreement, the other two Parties were nevertheless willing
to concede it, in return for (as they thought) a guarantee that further
extensions could not be made unless the International Court found that they
were legally warranted.
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[FN11]The effect of baselines on the extent of the zone drawn from them is
often overlooked by non-technical opinion. On an indented coast there are
always several ways of establishing a baseline system, conservative or the
reverse. The result, if the latter method is adopted, is considerably to
enlarge the area of the zone concerned, by thrusting its outer limit
seawards.
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11. Such being the position, it is manifestly completely irrelevant to the
question of the Court's competence to determine the validity of Iceland's
claim to extend her limits beyond 12 miles, that if she had waited several
more years she might have been able to justify the 12-mile fishery zone
irrespective of agreement to that effect;�and on this point I have nothing
to add to what is said in paragraphs 30-34 of the Judgment of the Court. It
is obviously galling to any man (but also a common experience) if he finds
that owing to a subsequent decline in prices he has paid more for something
than he need have done. But this is not in itself a ground on which he can
ask for his money back.
***
12. Turning now to some of the particular points that have arisen in
connection with the jurisdictional clause in the Exchanges of Notes, on the
basis of which the dispute has been referred to the Court, it will be
convenient, before going further, to set the clause out, as it figured in
the Exchange with the United Kingdom (the corresponding clause in the
Federal Republic's Exchange being exactly the same, apart from a few small
verbal differences not affecting the substance). It reads as follows:
"The Icelandic Government will continue to work for the implementation of
the Althing Resolution of May 5, 1959, regarding the extension of fisheries
jurisdiction around Iceland, but shall give to the United Kingdom Government
six months' notice of such extension and, in case of a dispute in relation
to such extension, the matter shall, at the request of either party, be
referred to the International Court of Justice."
In view of the clear and compelling terms of this provision, and of the fact
that what is therein expressly specified as constituting the casus foederis,
namely a further extension of Icelandic waters, has now occurred, it is
difficult to make any sense of the contention that the obligation to have
recourse to the Court is no longer operative because the 1961[p32] Exchanges
of Notes had achieved their purpose, and had therefore as it were lapsed or
become obsolescent. This contention seems however to belong basically to the
same order of argument as was put forward before the Court in the recent
case of the Jurisdiction of the ICAO [FN12]-Council (I.C.J. Reports 1972, p.
46) [FN13], and by both the then Parties, though with different objects,�on
the one side to contest the jurisdiction of the ICAO Council to deal with a
certain matter and, on the other side, to contest the competence of the
Court to determine the question of the Council's jurisdiction in that
matter. Reduced to its simplest terms, the process is to argue that a
jurisdiclional clause, even if it is otherwise duly applicable on its own
language, can be ipso facto nullified or rendered inapplicable by
purporting (unilaterally) to terminate or suspend the in-strument containing
it, or (as in the present case) to declare it to have become inoperative or
to be spent, and the jurisdictional clause with it
.
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[FN12]
ICAO� the International Civil Aviation Organization.
[FN13] The immediately relevant passages are in paragraphs 16 (b) and 32 of
the Judgment, I.C.J. Reports 1972, pp. 53-54 and 64-65.
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13. It is always legitimate to seek to maintain (whether correctly or not)
that a jurisdictional clause is, according to its own terms, inapplicable to
the dispute, or has lapsed[FN14];�and in that event it is for the tribunal
concerned to decide the matter, in the exercise of the admitted right or
function of the comp�tence de la comp�tence -(in the case of the Court, in
the application of Art. 36. para. 6, of its Statute). But this must equally
be so where the alleged cause of inapplicability or inoperativeness of the
jurisdictional clause lies not in that clause itself but in the language of,
or in considerations pertaining to, the instrument containing it, for
otherwise there would be no way of testing (in so far as it affected the
jurisdiclional clause) the validity of the grounds of inapplicability or
inoperativeness put forward; and the comp�tence de la comp�tence would be
nullified or would be nullifiable a priori,�in short, as the Court said in
the Council of ICAO case (I.C.J. Reports 1972, p. 54, in para. 16 (b))
"means of defeating jurisdictional clauses would never be wanting" since
(ibid.)
"If a mere allegation, as yet unestablished, that a treaty was no longer
operative could be used to defeat its jurisdictional clauses, all such
clauses would become potentially a dead letter."
It is therefore hard to understand how anyone who supported the decision in
that case, without any qualification on this point, can fail to support the
decision of the Court on the analagous jurisdiclional question in the
[p33]present case, in which Iceland, alleging a sort of self-evident
"fulfilment of the object" of the 1961 Exchanges of Notes, contests (though
without actual appearance in the proceedings) not only the competence of
"the Court to determine the merits of the dispute relating to the purported
extension of Icelandic waters, but (going further in this respect than
either of the Parties in the ICAO case did) the Court's competence even to
enquire at all into the question of its jurisdiction.
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[FN14] This might have been the case if, for instance (as is often done),
the obligation to have recourse to the Court had been undertaken only for a
specified period; or if it had appeared to relate not to an actual purported
extension of Iceland's fisheries jurisdiction, but only to the validity or
effect of the notice given about it.
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14. In fact, the object of the Exchanges of Notes is fulfilled only in
respect of Iceland, which has indeed obtained all she sought for under it.
Her 12-mile fishery zone was recognized and has been operating for more than
a decade; her baselines were recognized; and she is no longer burdened with
the transitional right of the other two Parties to fish in some parts of the
zone. These, admittedly, are all executed clauses in respect of which no
further question arises or can arise; but this has no relevance to the real
issue because, for the other two Parties, the object of the Exchanges is far
from fulfilled and has only just started to operate, �namely, their right of
recourse to the Court, and Iceland's corresponding obligation to accept
that recourse if she is purporting to go beyond the agreement, and further
to extend her fishery limits�as she has done.
15. Nor can it be contended that this was a mere formality, or stipulated
only ex abundanti cautela, and that no such extension was seriously
contemplated at the time,�for the reference contained in the jurisdictional
clause to the intention of the Government of Iceland to �continue to work
for the implementation of the Althing Resolution of May 5, 1959, concerning
the extension of fisheries jurisdiction around Iceland", shows not only that
just such an extension was contemplated, but that it was intended by the one
Party, actively anticipated by the others, and duly provided for by means of
the jurisdictional clause, which becomes devoid of all sense if it does not
apply to exactly the case that has arisen, since it had and could have had
no other object [FN15]. Iceland cannot therefore be heard to argue ex post
facto that the clause has in the meantime lapsed; for all that has happened
in the interval is not anything to cause it to lapse, but the very thing
which has caused it to come into play namely Iceland's purported extension
of fisheries jurisdiction.
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[FN15] Except of course to allow Iceland also to make an application to the
Court if circumstances arose to make her want to do so�see para. 20 below.
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16. Moreover, it was by Iceland's own act that this occurred. She was not
obliged to claim a further extension of waters. Had she not done so, the
United Kingdom and the Federal Republic would have had no right to activate
the jurisdictional clause in order, for instance, to obtain an anticipatory
decision from the Court as to whether Iceland would be legally entitled, if
so minded, or at some future date, to extend her [p34] fishery limits. They
had to wait until (and if) she did purport to do so. But Iceland, having
exercised her right (as foreshadowed by the jurisdictional clause itself) to
claim an extension (for of course it can, at this stage at least, rank as no
higher than that), cannot now deny her countervailing obligation under that
same clause to submit to adjudication, and the right of the other parties to
require it. If a repetition may be forgiven therefore, the simple truth is
that in 1961 the United Kingdom and the Federal Republic were willing to
recognize a 12-mile limit for Iceland, even though they might not consider
that international law as it then stood obliged them to do so (nor clearly
did Iceland),�but they were willing to do this precisely in order to
safeguard themselves against unilateral acts of further extension that did
not have, or did not eventually receive, the sanction of the International
Court of Justice after reference of the matter to it. This is exactly the
situation that has now arisen, and the competence of the Court to deal with
it on the merits can admit of no doubt.
*
17. With regard to the question of "changed circumstances" I have nothing to
add to what is stated in paragraphs 35-43 of the Court's Judgment, except to
emphasize that in my opinion the only change that could possibly be relevant
(if at all) would be some change relating directly to the, so to speak,
operability of the jurisdictional clause itself [FN16],�not to such things
as developments in fishery techniques or in Iceland's situation relative to
fisheries. These would indeed be matters that would militate for, not
against, adjudication. But as regards the jurisdictional clause itself, the
only "change" that has occurred is the purported extension of Icelandic
fishery limits. This however is the absolute reverse of the type of change
to which the doctrine of "changed circumstances" relates, namely one never
contemplated by the Parties: it is in fact the actual change they did
contemplate, and specified as the one that would give rise to the obligation
to have recourse to adjudication.
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[FN16] For instance if the character of the International Court itself had
changed in the meantime so that it was no longer the entity the Parties had
had in mind, e.g., if, owing to developments in the United Nations, the
Court had been convened into a tribunal of mixed law and conciliation,
proceeding on a basis other than a purely juridical one.
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18. Furthermore, if the contention that this obligation has become unduly
onerous, in a manner never originally envisaged, is analysed, it will be
seen to amount to this: that if the Court, in adjudicating on the merits,
should decide against Iceland, the burden of conforming to the[p35] decision
would, on account of interim developments, be greater than it formerly would
have been. One has only to state the argument in this form, for its lack of
all substance to become plainly apparent. It could never be a sufficient
ground in law on which the validity of the act complained of should not be
tested,�and to test it is all that the adjudication clause aims at.
*
19. With regard to the question of so-called "duress", it is difficult to
take a complaint of that kind seriously coming from the Party which was the
main beneficiary of the Exchanges of Notes,�and the recipient of all the
immediate concrete concessions made in them,�for the transitional fishing
rights within the 12-mile zone reserved to the other Parties was really
simply a temporary derogation from or mitigation of the full extent of the
main concession made, and not a real quid pro quo[FN17]. The real quid pro
quo was of course the adjudication clause. It follows that on its true
analysis, the "duress" contention resolves itself into an allegation that
Iceland's agreement to the adjudication clause in particular was only
obtained under pressure. But quite apart from the point made in paragraph
20 below, and the considerations adduced in the Judgment of the Court,
paragraphs 18-23 as to the history of the 1960-1961 negotiations, showing
that this could not have been the case, it is surely the normal, and to be
expected thing, with reference to any agreement, to find that it provides
for rights and obligations operating for both sides. Without the
adjudication clause there would have been no quid pro quo at all for the
United Kingdom and the Federal Republic,�and it is that which would have
been abnormal. Hence, on further analysis, it can be seen that the "duress"
point really involves the view that what Iceland received, she ought to have
received as of right in any event, without having to give anything in
return. The weight to be attached to the "ought" in this suggestion may
well turn on matters of opinion, but it has no place as a legal factor, and
cannot be reconciled with the situation or the circumstances as existing at
the time.
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[FN17] The matter can readily be tested,�for although the Parties elected to
embody the 12-mile zone concession and the reservation of transitional
rights in two separate and formally independent provisions, a more elegant,
and strictly more correct method, would have been to provide in one single
article for a recognition of Iceland's exclusive rights in the major parts
of the zone immediately, but, for the other parts, only after a transitional
period. The true character of the transaction, as consisting of a greater
and a lesser concession�but both of them concessions�would then have been
evident. Only if Iceland could have claimed the 12-mile zone as of right
(which was never the basis of the agreement) would it have been possible to
regard the transitional rights as a concession moving from Iceland, and not
as an integral part of a concession the whole of which was made by the other
two Parties.
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20. Nor should it be overlooked that the adjudication clause was itself
[p36]reciprocal, not one-sided. Iceland equally could initiate proceedings
before the Court,�and this was no mere piece of "common-form" drafting, for
if one of the other Parties should react to Iceland's purported extension of
her fishery limits, not by recourse to the Court but by measures of naval
protection, it would then have been open to Iceland to invoke the
adjudication clause, which was in consequence a safeguard for her, as well
as for the other two Parties. Where then was the element of "duress"?
***
21. In conclusion, and although the matter may be a somewhat sensitive one
for me personally to refer to, I should like�since I shall not be
participating in the next phase of the case�to comment briefly on the course
followed by Iceland with reference to the proceedings before the Court, so
far as they have gone up to date. It may have been understandable, though
difficult to reconcile with the attitude to the Court which a party to its
Statute ought to adopt, that Iceland should declare herself to be so
convinced of the Court's lack of any competence to entertain the present
dispute, that she would not take any part in the proceedings, and would not
enter an appearance or be represented, even in order to argue the question
of competence. Had she done this on a once-and-for-all basis, giving her
reasons, and thereafter maintained silence, there would have been no more to
be said except to call her absence misguided and regrettable. In fact
however Iceland has sent the Court a series of letters and telegrams on the
subject, often containing material going far beyond the question of
competence and entering deeply into the merits, and has lost no opportunity
of doing the same thing through statements made or circulated in the United
Nations, and by other means[FN18], all of which have of course been brought
to the attention of the Court in one way or another as, doubtless, they were
intended to be. This process is unfortunately open to the interpretation of
being designed, on the one hand, to place Iceland in almost as good a
position as if she had actually appeared in the proceedings�(because the
Court has in fact carefully considered and dealt with her arguments)�while
on the other hand enabling her, in case of need, to maintain that she does
not recognize the legitimacy of the proceedings or their outcome�as indeed
she has already done with respect to the interim measures indicated by the
Court in its Order of17 August 1972.
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[FN18] Such as for instance the promotion in the recent (1972) United
Nations Assembly of resolutions bearing on matters that are or may be sub
judice before the Court in the present case.
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22. There is yet time for Iceland to show that this interpretation is
mistaken; and it is my sincere hope that she will do so.
(Signed) Gerald Fitzmaurice.
Dissenting Opinion
of Judge Padilla Nervo |
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