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[p.302]
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 1946 Rules of Court,
Having regard to the Application by the United Kingdom of Great Britain and
Northern Ireland filed in the Registry of the Court on 14 April 1972,
instituting proceedings against the Republic of Iceland, [p5]
Having regard to the request for the indication of interim measures of
protection filed by the United Kingdom in the Registry on 19 July 1972,
Having regard to the Order of the Court dated 17 August 1972 by which the
Court indicated interim measures of protection in this case,
Makes the following Order:
1. Having regard to the communication dated 22 June 1973 and filed in the
Registry the same day, by which the Agent for the Applicant referred to
operative paragraph (2) of the Order of the Court dated 17 August 1972,
providing for review of the matter at the request of either Party, and
requested the Court to confirm that the interim measures of protection
indicated by the Court in that Order will continue until the Court has given
final judgment in the case or until further order;
2. Whereas the Government of Iceland was forthwith notified by telegram of
the communication of 22 June 1973, a copy of which was at the same time
transmitted to it by express air mail;
3. Whereas the Government of Iceland has by a telegram of 2 July 1973
submitted observations on the request by the Agent for the Applicant in his
communication of 22 June 1973, protesting against the continuation of the
measures indicated, maintaining that highly mobile fishing fleets should not
be allowed to inflict a constant threat of deterioration of the fish stocks
and endanger the viability of a one-source economy, and concluding that to
freeze the present dangerous situation might cause irreparable harm to the
interests of the Icelandic nation;
4. Having regard to the Judgment of 2 February 1973 by which the Court found
that it had jurisdiction to entertain the Application filed by the
Government of the United Kingdom on 14 April 1972 and to deal with the
merits of the dispute;
5. Having regard to the Order of 15 February 1973 by which the Court fixed
time-limits for the written proceedings on the merits;
6. Being aware that negotiations have taken place between the States
concerned with a view to reaching an interim arrangement pending final
settlement of the dispute;
7. Whereas the provisional measures indicated by the Court and confirmed by
the present Order do not exclude an interim arrangement which may be agreed
upon by the Governments concerned, based on catch-limitation figures
different from that indicated as a maximum in the Court's Order of 17 August
1972 and on related restrictions concerning areas closed to fishing, number
and type of vessels allowed and forms of control of the agreed provisions;
8. Whereas the Court, pending the final decision, and in the absence of such
interim arrangement, must remain concerned to preserve, by the indication of
provisional measures, the rights which may subsequently be [p6] adjudged by
the Court to belong respectively to the Parties;
Accordingly,
THE COURT,
by 11 votes to 3,
Confirms that the provisional measures indicated in operative paragraph (1)
of the Order of 17 August 1972 should, subject to the power of revocation or
modification conferred on the Court by paragraph 7 of Article 61 of the 1946
Rules, remain operative until the Court has given final judgment in the
case.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twelfth day of July, one thousand nine hundred
and seventy-three, 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 United
Kingdom of Great Britain and Northern Ireland, and to the Secretary-General
of the United Nations for transmission to the Security Council.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
Judge Ignacio-Pinto makes the
following declaration:
I concurred in the Court's Orders of 17 August 1972 granting the United
Kingdom in one case, and the Federal Republic of Germany in the other, the
interim measures of protection they had requested in their dispute with
Iceland; but I am unable to concur in the present Order. I have voted
against it for reasons based on the following considerations:
1. The Court, in confirming the interim measures indicated in the earlier
Order of 17 August 1972, has not, in my view, taken sufficient account of
the circumstances that have arisen since that Order was made.
In my view, bearing in mind Article 61, paragraph 7, of its Rules, the Court
ought first to have ascertained with care whether the new aspects of the
situation did not necessitate either the revocation or, at least, the
modification of the terms of the Order of 17 August 1972 [p7].
The reason is that, as no-one can be unaware, there have been numerous
clashes in the disputed fishery-zone between Icelandic coastguard vessels
and trawlers flying the British or Federal German flag. Some of these
incidents, such as collision between two vessels or the firing of shells by
Icelandic coastguard vessels, were in my view grave enough to warrant the
exercise by the Court of its right to modify the terms of its original
decision.
2. Furthermore, these incidents, in my judgment, constitute so many flagrant
violations on either side of the operative part of the Orders of 17 August
1972. The measures should therefore be reviewed, and others indicated
concerning inter alia the presence of warships.
It is true that the present Order is made "subject to the power of
revocation or modification" conferred on the Court by Article 61, paragraph
7, of its Rules, but the renewal of the interim measures indicated on 17
August 1972 until the Court has given final judgment in the case is fraught
with risk, given the prevailing tension between the disputants. If other,
much graver incidents were to occur before final judgment was given, the
Court would be open to criticism for failure to exercise vigilance.
Such are the considerations which precluded me from joining the majority of
the Court in voting for the present Order.
Judges Gros and Petrén append dissenting opinions to the Order of the Court.
(Initialled) M.L.
(Initialled) S.A.
[p8]
DISSENTING OPINION OF JUDGE GROS
[Translation]
The Order of 12 July 1973 purely and simply confirms the interim measures of
protection indicated by the Court in its Order of 17 August 1972, pending
the judgment on the merits of the case instituted by the Application of 12
April 1972. Having adopted a different position I feel I should briefly
state my reasons for doing so. It is Article 41 of the Statute and Article
61 of the 1946 Rules of Court which determine the jurisdiction of the Court
in the present proceedings, and I would have preferred Article 61,
paragraphs 7 and 8, of the Rules, providing for the possible modification of
existing provisional measures, to have been differently applied.
***
One need only observe that the circumstances in which the Court made its
decision in August 1972 are no longer exactly the same, whether on the plane
of facts or on that of the respective subjects of complaint, to realize the
case for the Court's re-appraising those circumstances before deciding to
confirm measures which, according to the terms of Article 41 of the Statute,
had been indicated because the Court considered that "circumstances" so
required. The Government of the United Kingdom, by a letter of 22 June 1973,
requested the Court to confirm the measures of August 1972; the Government
of Iceland, by a telegram dated 2 July 1973, recalled its protests against
the indication of measures in August 1972 and against their continuance in
force. There is therefore a categorical opposition of views on that point,
and the telegram of the Government of Iceland makes certain points which
might well be studied, including the argument that "the Court by
endeavouring to freeze the present dangerous situation is completely
ignoring the scientific and economic facts of the case".
The position adopted by Iceland ever since the beginning of the case has
remained unchanged, and the Court took note of it in paragraph 12 of its
Judgment of 2 February 1973 on the question of jurisdiction, when it based
itself on Article 53 of the Statute and decided that in the absence of
Iceland the Court should examine any possible objections against its
jurisdiction. Article 53 having formally been taken into consideration in
the phase devoted to the jurisdictional issue, I find it very artificial to
go back on that position in the present stage of the proceedings. Iceland is
still failing to appear, and the legal effects of that fact ought, according
to Article 53, to be the same as at the moment of the Judgment on the [p9]
question of jurisdiction. Without its being necessary to enquire into the
effect of the telegram of 2 July in which the Icelandic Government
protested against the continuance of the interim measures, it is to my mind
impossible to maintain that the Court did not have to carry out an
examination proprio motu of its own role in regard to interim measures. The
Court seems to consider that Article 53 of the Statute can be interpreted
in such a way as to penalize the absent State; I regard that interpretation
as erroneous. But in any case, and quite apart from the question of the
absence from the proceedings of the Government of Iceland, a hearing ought
to have been held and the necessary questions put to the Applicant; Article
61 of the Rules provides precisely for that possibility of verifying any
arguments of which the Court may have cognizance—and the Court had been
advised that the Applicant was prepared to attend a hearing, and was ready
at any time to submit such observations as the Court might wish to request.
Furthermore, the following statement was made on behalf of the British
Government in the House of Commons on 12 June 1973:
"Her Majesty's Government, in a letter of 28th May, drew the attention
of the President and members of the Security Council to the serious
situation created by the continued and intensified Icelandic harassment of
British trawlers. The International Court of Justice, which is the principal
judicial organ of the United Nations, is already seized of the dispute; and
for this reason it is not at present appropriate to ask the Security Council
to take action." (Hansard, House of Commons, p. 302.)
Here the accent is placed on the responsibility of the Court in taking
account of the situation which was described in detail in a White Book
entitled Fisheries Dispute between the United Kingdom and Iceland: 14 July
1971 to 19 May 1973 (Cmnd. 5341), and more particularly in paragraphs 12,
13 and 14 and in Annexes E and F, laid before the United Kingdom Parliament
in June 1973. There was no dearth of information preventing an examination
of the situation at the moment when the Court was called upon to pronounce
upon the question of interim measures. The Court is aware that both of the
interested States accuse each other of employing force with a view to
exercising the respective rights which they claim (on this point, cf. the
letter addressed on 28 May 1973 to the President of the Security Council by
the United Kingdom Permanent Delegation—S/l 0936, paras. 1,3, 4 and 6—and
the letter of the Permanent Delegation of Iceland dated 29 May 1973—S/10937,
paras. 1, 2, 3 and 8. The various incidents were also listed in Annexes E
and F of the White Book).
The continuance of interim measures, like their indication in the first
place, is justified by the concern to safeguard rights—not economic
interests, but the rights which the Court may recognize in its judgment on
the merits (Order, para. 8). I have some doubt as to the justification for
giving a decision which confirms interim measures without re-apprais-[p10]al
when, in the present case, the Court cannot be unaware that the dispute has
been aggravated since its first Order (cf. the White Book of June 1973,
paras. 12-17, and the Annexes above referred to) and that the most effective
method of settling the dispute would be to pass judgment on the merits as
soon as possible. As interim measures serve only to protect rights, urgency
attaches not only to deciding upon such measures but also to settling the
dispute. When, by its Order of 15 February 1973, the Court fixed a
time-limit of six months for the Memorial of the United Kingdom and a
further time-limit, as distant as 15 January 1974, for a possible
Counter-Memorial of Iceland, its decision was underlain by the same
preoccupations as paragraph 6 of the present Order, namely by concern to
leave open to the interested States the possibility of "reaching an interim
arrangement pending final settlement of the dispute". But the outcome of
specifying such time-limits is that a case which began in April 1972 cannot
be settled for two years, on account of the Court's own decisions as to the
calendar of the proceedings.
The fixing of time-limits is a useful element in the conduct of proceedings
before the Court and enables, within limits, a certain influence to be
exerted for the sake of good administration of justice. Each case gives rise
to its own particular problem in that respect. Concerning the present case I
believe it may be said that, in fixing such lengthy time-limits, the Court
has neglected one possible effect of its being seised with the case, when it
had just declared, almost unanimously, that it possessed jurisdiction. An
international tribunal has always a preventive role—and, as often as not,
has none other. In the present case, if the interested States had been
conscious of the fact that their dispute would be settled by judicial
decision at a relatively early date, that might have given them some
incentive to conclude the dispute by other means, if still possible. This
raises the general question of the relationship between two modes of
peaceful settlement of international disputes, namely negotiation and
judicial settlement, but there is no call for me to go into that here. To
assist understanding of the course of the proceedings with regard to interim
measures, from the request of 17 July 1972 up to today's decision, I need
only say that in my view a tribunal ought not to be over-influenced in the
exercise of its functions by the course followed by the other mode, that of
negotiation. The Permanent Court of International Justice had realized all
that from the beginning. In the Order which he made on 15 February 1927 in
the case concerning Denunciation of the Treaty of November 2nd, 1865,
between China and Belgium, President Max Huber said:
"Considering that measures of protection, indicated by the Court as
being for purely legal reasons rendered necessary by circumstances, cannot
be dependent, as regards their applicability, upon the position of
negotiations that may be in progress between the Parties" (P.C.I.J.,
Series A, No. 8, p. 11).
While I am mindful of the different circumstances of the present case, [p11]
it seems to me that this dictum is still valid as a principle calling for
application by the Court. The institution of proceedings before the Court
is an act stemming from the foreign policy of the State, and that aspect of
the matter does not concern the judge at all; conversely, negotiations on
the subject of the dispute are not part of the proceedings. The Court does
not have to draw any conclusion from them in exercising its judicial
function for so long as the negotiations have not resulted in an agreement
between the parties on the basis of which a request for discontinuance is
submitted in conformity with Articles 68 and 69 of the Rules of Court. If in
given circumstances States find the conduct of their negotiations rendered
difficult by the Court's procedural decisions, particularly in regard to
time-limits, it is up to them to make those difficulties known.
In each case the Court, in directing the proceedings, must seek out the most
satisfactory manner of fulfilling its judicial role; taking the
circumstances as a whole, it seems to me that in the present case the
passage of time is not necessarily a favourable factor and that, in any
event, the Court's decision should have been preceded by an examination of
all the prevailing circumstances, with the assistance of the Applicant.
Such an examination, which would have brought the Agent for the Government
of the United Kindom before the Court, would likewise have afforded an
opportunity of deciding whether a new time-limit ought to be fixed for the
proceedings on the merits, in application of Article 37 of the Rules and
taking Article 53 of the Statute into account.
(Signed) Andre GROS.
[p12]
DISSENTING OPINION OF JUDGE PETREN
[Translation]
Having voted against the Order, I append thereto this dissenting opinion.
There is an evident possibility that the circumstances in which the Court,
on 17 August 1972, indicated interim measures of protection might have
undergone such changes as could justify some modification of those measures.
One of the factors which ought to be taken into account in that respect is
the evolution of fish-stocks. In its telegram protesting against the
continuation of interim measures, the Government of Iceland maintained that
British and Icelandic catches continue to decrease per unit effort and that
small immature fish of the 1970 year-class, which is the only known sizeable
year-class and should constitute the main source of supply in 1976-1978 and
the necessary "recruitment", are now increasingly being landed in. United
Kingdom ports. To my mind, these indications gave rise to questions which
were serious enough to warrant inviting the Parties, before the Court took
up any position on the continuance of interim measures, to furnish it with
the relevant information, available from specialized organizations and
institutions, as to the evolution and exploitation of fish-stocks in the
fishing-waters concerned.
The many incidents that have occurred at the fishing-grounds have shown that
the interim measures of protection indicated on 17 August 1972 have not been
fulfilling their purpose, and there I see another reason for re-appraisal of
those measures.
Another element which, as I see it, would have merited being taken into
consideration is the way the Court recently founded the indication of
interim measures on the possible existence of a new rule of international
law. By the Orders made on 22 June 1973 in the cases concerning Nuclear
Tests (Australia v. France; New Zealand v. France) the Court indicated in
particular that the French Government should avoid nuclear tests causing the
deposit of radio-active fall-out on Australian and New Zealand territory.
This indication of interim measures was apparently founded on the possible
existence of a new general rule of international law prohibiting States from
carrying out atmospheric nuclear tests causing the deposit of radio-active
fall-out, however slight, on the territory of other States. Nevertheless
this general rule of international law, if it exists, has not yet been given
codified expression. Its existence, therefore, could only be proved with
the aid of other sources of law representing an evolution which is still in
progress. [p13]
Now, in claiming the fishing-rights contested by the British
Government in the present case, the Government of Iceland has sought to
draw authority from an evolution of international law which is upheld by an
ever-increasing number of declared attitudes and is less hypothetical in
character than the putative right on the basis of which the Court indicated
interim measures in favour of Australia and New Zealand.
I therefore feel that the question of interim measures of protection in the
present case ought also to be re-examined in the light of this recent
precedent.
In view of the foregoing, and as the Court, in accordance with Article 53 of
its Statute, is under a duty also to take into consideration such
indications as it may have which militate in favour of a party that fails to
appear, I am of the opinion that the interim measures should have been
subjected to re-appraisal. That, in accordance with Article 61, paragraph 8,
of the 1946 Rules, would have required the Court to invite the Parties to
present their observations on the subject. The majority having opposed this
course, I was obliged to vote against the Order.
(Signed) Sture PETREN. |
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