|
[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 Charge 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.
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.
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. [p 5]
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; and by a further Order dated 12
July 1973, the Court confirmed that those measures should, subject as
therein mentioned, remain operative until the Court has given final
judgment in the case. By a letter of 21 November 1973, the Agent of the
United Kingdom informed the Court, with reference to the Orders of 17 August
1972 and 12 July 1973, of the conclusion on 13 November 1973 of an Exchange
of Notes constituting an interim agreement "relating to fisheries in the
disputed area, pending a settlement of the substantive dispute and without
prejudice to the legal position or rights of either government in relation
thereto". Copies of the Exchange of Notes were enclosed with the letter. A
further copy was communicated to the Court by the Minister for Foreign
Affairs of Iceland under cover of a letter dated 11 January 1974. The
Exchange of Notes was registered with the United Nations Secretariat under
Article 102 of the Charter of the United Nations.
5. 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. 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 of counsel for the United Kingdom on
the question of the Court's jurisdiction; the Government of Iceland was not
represented at the hearing.
6. By a Judgment dated 2 February 1973, the Court found that it had
jurisdiction to entertain the Application filed by the United Kingdom and to
deal with the merits of the dispute.
7. By an Order dated 15 February 1973 the Court fixed time-limits for the
written proceedings on the merits, namely 1 August 1973 for the Memorial of
the Government of the United Kingdom and 15 January 1974 for the Counter-Memorial
of 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.
8. By a letter from the Registrar dated 17 August 1973 the Agent of the
United Kingdom was invited to submit to the Court any observations which the
Government of the United Kingdom might wish to present on the question of
the possible joinder of this case with the case instituted on 5 June 1972 by
the Federal Republic of Germany against the Republic of Iceland (General
List No. 56), and the Agent was informed that the Court had fixed 30
September 1973 as the time-limit within which any such observations should
be filed. By a letter dated 26 September 1973, the Agent of the United
Kingdom submitted the observations of his Government on the question of the
possible joinder of the two Fisheries Jurisdiction cases. The Government of
Iceland was informed that the observations of the United Kingdom on possible
[p 6] joinder had been invited, but did not make any comments to the Court.
On 17 January 1974 the Court decided by nine votes to five not to join the
present proceedings to those instituted by the Federal Republic of Germany
against the Republic of Iceland. In reaching this decision the Court took
into account the fact that while the basic legal issues in each case
appeared to be identical, there were differences between the positions of
the two Applicants, and between their respective submissions, and that
joinder would be contrary to the wishes of the two Applicants. The Court
decided to hold the public hearings in the two cases immediately following
each other.
9. On 25 and 29 March 1974, after due notice to the Parties, public hearings
were held in the course of which the Court heard the oral argument of
counsel for the United Kingdom on the merits of the case; the Government of
Iceland was not represented at the hearings. Various Members of the Court
addressed questions to the Agent of the United Kingdom both during the
course of the hearings and subsequently, and replies were given either
orally at the hearings or in writing. Copies of the verbatim record of the
hearings and of the written questions and replies were transmitted to the
Government of Iceland.
10. The Governments of Argentina, Australia, Ecuador, the Federal Republic
of Germany, India, New Zealand 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.
11. 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 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." [p 7]
in the Memorial on the merits:
". . . the Government of the United Kingdom submit to the Court that the
Court should adjudge and declare:
(a) that the claim by Iceland to be entitled to a zone of exclusive
fisheries jurisdiction extending 50 nautical miles from baselines around the
coast of Iceland is without foundation in international law and is invalid;
(b) that, as against the United Kingdom, Iceland is not entitled
unilaterally to assert an exclusive fisheries jurisdiction beyond the
limits agreed to in the Exchange of Notes of 1961;
(c) that Iceland is not entitled unilaterally to exclude British fishing
vessels from the area of the high seas beyond the limits agreed to in the
Exchange of Notes of 1961 or unilaterally to impose restrictions on the
activities of such vessels in that area;
(d) that activities by the Government of Iceland such as are referred to in
Part V of this Memorial, that is to say, interference by force or the threat
of force with British fishing vessels operating in the said area of the high
seas, are unlawful and that Iceland is under an obligation to make
compensation therefor to the United Kingdom (the form and amount of such
compensation to be assessed, failing agreement between the Parties, in such
manner as the Court may indicate); and
(e) that, to the extent that a need is asserted on conservation grounds,
supported by properly attested scientific evidence, for the introduction of
restrictions on fishing activities in the said area of the high seas,
Iceland and the United Kingdom are under a duty to examine together in good
faith (either bilaterally or together with other interested States and
either by new arrangements or through already existing machinery for
international collaboration in these matters such as the North-East Atlantic
Fisheries Commission) the existence and extent of that need and similarly to
negotiate for the establishment of such a regime for the fisheries of the
area as, having due regard to the interests of other States, will ensure for
Iceland, in respect of any such restrictions that are shown to be needed as
aforesaid, a preferential position consistent with its position as a State
specially dependent on those fisheries and as will also ensure for the
United Kingdom a position consistent with its traditional interest and
acquired rights in and current dependency on those fisheries."
12. At the hearing of 25 March 1974, the Court was informed that, in view of
the conclusion of the interim agreement constituted by the Exchange of Notes
of 13 November 1973 referred to above, the Government of the United Kingdom
had decided not to pursue submission (d) in the Memorial. At the close of
the oral proceedings, written submissions were filed in the Registry of the
Court on behalf of the Government of the United Kingdom; these submissions
were identical to those contained in the Memorial, and set out above, save
for the omission of submission (d) and the consequent re-lettering of
submission (e) as (d). [p 8]
13. 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 was however defined
in the above-mentioned letter of 29 May 1972 from the Minister for Foreign
Affairs of Iceland, namely that there was on 14 April 1972 (the date on
which the Application was filed) no basis under the Statute for the Court to
exercise jurisdiction in the case, and that the Government of Iceland was
not willing to confer jurisdiction on the Court. After the Court had
decided, by its Judgment of 2 February 1973, that it had jurisdiction to
deal with the merits of the dispute, the Minister for Foreign Affairs of
Iceland, by letter dated 11 January 1974, informed the Court that:
"With reference to the time-limit fixed by the Court for the submission of
Counter-Memorials by the Government of Iceland, I have the honour to inform
you that the position of the Government of Iceland with regard to the
proceedings in question remains unchanged and, consequently, no
Counter-Memorials will be submitted. At the same time, the Government of
Iceland does not accept or acquiesce in any of the statements of facts or
allegations or contentions of law contained in the Memorials filed by the
Parties concerned."
***
14. Iceland has not taken part in any phase of the present proceedings. By
the above-mentioned letter of 29 May 1972, the Government of Iceland
informed the Court that it regarded the Exchange of Notes between the
Government of Iceland and the Government of the United Kingdom dated 11
March 1961 as terminated; that in its view there was no basis under the
Statute for the Court to exercise jurisdiction in the case; that, as it
considered the vital interests of the people of Iceland to be involved, it
was not willing to confer jurisdiction on the Court in any case involving
the extent of the fishery limits of Iceland; and that an agent would not be
appointed to represent the Government of Iceland. Thereafter, the Government
of Iceland did not appear before the Court at the public hearing held on 1
August 1972 concerning the United Kingdom's request for the indication of
interim measures of protection; nor did it file any pleadings or appear
before the Court in the subsequent proceedings concerning the Court's
jurisdiction to entertain the dispute. Notwithstanding the Court's Judgment
of 2 February 1973, in which the Court decided that it has jurisdiction to
entertain the United Kingdom's Application and to deal with the merits of
the dispute, the Government of Iceland maintained the same position with
regard to the subsequent proceedings. By its letter of 11 January 1974, it
informed the Court that no Counter-Memorial would be submitted. Nor did it
in fact file any pleading or appear before the Court at the public hearings
on the merits of the dispute. At these hearings, counsel for the United
Kingdom, having [p 9] drawn attention to the non-appearance in Court of any
representative of the Respondent, referred to Article 53 of the Statute, and
concluded by presenting the final submissions of the United Kingdom on the
merits of the dispute for adjudication by the Court.
15. The Court is thus confronted with the situation contemplated by Article
53, paragraph 1, of the Statute, that "Whenever one of the parties does not
appear before the Court, or fails to defend its case, the other party may
call upon the Court to decide in favour of its claim". Paragraph 2 of that
Article, however, also provides: "The Court must, before doing so, satisfy
itself, not only that it has jurisdiction in accordance with Articles 36 and
37, but also that the claim is well founded in fact and law."
16. The present case turns essentially on questions of international law,
and the facts requiring the Court's consideration in adjudicating upon the
Applicant's claim either are not in dispute or are attested by documentary
evidence. Such evidence emanates in part from the Government of Iceland,
and has not been specifically contested, and there does not appear to be any
reason to doubt its accuracy. The Government of Iceland, it is true,
declared in its above-mentioned letter of 11 January 1974 that "it did not
accept or acquiesce in any of the statements of fact or allegations or
contentions of law contained in the Memorials of the Parties concerned"
(emphasis added). But such a general declaration of non-acceptance and
non-acquiescence cannot suffice to bring into question facts which appear
to be established by documentary evidence, nor can it change the position of
the applicant Party, or of the Court, which remains bound to apply the
provisions of Article 53 of the Statute.
17. It is to be regretted that the Government of Iceland has failed to
appear in order to plead its objections or to make its observations against
the Applicant's arguments and contentions in law. The Court however, as an
international judicial organ, is deemed to take judicial notice of
international law, and is therefore required in a case falling under Article
53 of the Statute, as in any other case, to consider on its own initiative
all rules of international law which may be relevant to the settlement of
the dispute. It being the duty of the Court itself to ascertain and apply
the relevant law in the given circumstances of the case, the burden of
establishing or proving rules of international law cannot be imposed upon
any of the parties, for the law lies within the judicial knowledge of the
Court. In ascertaining the law applicable in the present case the Court has
had cognizance not only of the legal arguments submitted to it by the
Applicant but also of those contained in various communications addressed to
it by the Government of Iceland, and in documents presented to the Court.
The Court has thus taken account of the legal position of each Party.
Moreover, the Court has been assisted by the answers given by the Applicant,
both orally and in writing, to questions asked by Members of the Court
during the oral proceedings or immediately thereafter. It should be stressed
that in applying Article 53 [p 10] of the Statute in this case, the Court
has acted with particular circumspection and has taken special care, being
faced with the absence of the respondent State.
18. Accordingly, for the purposes of Article 53 of the Statute, the Court
considers that it has before it the elements necessary to enable it to
determine whether the Applicant's claim is, or is not, well founded in fact
and law, and it is now called upon to do so. However, before proceeding
further the Court considers it necessary to recapitulate briefly the history
of the present dispute.
***
19. In 1948 the Althing (the Parliament of Iceland) passed a law entitled
"Law concerning the Scientific Conservation of the Continental Shelf
Fisheries" containing, inter alia, the following provisions:
"Article 1
The Ministry of Fisheries shall issue regulations establishing explicitly
bounded conservation zones within the limits of the continental shelf of
Iceland; wherein all fisheries shall be subject to Icelandic rules and
control; Provided that the conservation measures now in effect shall in no
way be reduced. The Ministry shall further issue the necessary regulations
for the protection of the fishing grounds within the said zones . ..
Article 2
The regulations promulgated under Article 1 of the present law shall be
enforced only to the extent compatible with agreements with other countries
to which Iceland is or may become a party."
20. The 1948 Law was explained by the Icelandic Government in its expose des
motifs submitting the Law to the Althing, in which, inter alia, it stated:
"It is well known that the economy of Iceland depends almost entirely on
fishing in the vicinity of its coasts. For this reason, the population of
Iceland has followed the progressive impoverishment of fishing grounds with
anxiety. Formerly, when fishing equipment was far less efficient than it is
today, the question appeared in a different light, and the right of
providing for exclusive rights of fishing by Iceland itself in the vicinity
of her coasts extended much further than is admitted by the practice
generally adopted since 1900. It seems obvious, however, that measures to
protect fisheries ought to be extended in proportion to the growing
efficiency of fishing equipment. [p 11]
In so far as the jurisdiction of States over fishing grounds is
concerned, two methods have been adopted. Certain States have proceeded to a
determination of their territorial waters, especially for fishing purposes.
Others, on the other hand, have left the question of the territorial waters
in abeyance and have contented themselves with asserting their exclusive
right over fisheries, independently of territorial waters. Of these two
methods, the second seems to be the more natural, having regard to the fact
that certain considerations arising from the concept of 'territorial waters'
have no bearing upon the question of an exclusive right to fishing, and that
there are therefore serious drawbacks in considering the two questions
together."
21. Commenting upon Article 2 of the 1948 Law, the expose des motifs
referred to the Anglo-Danish Convention of 1901, which applied to the
fisheries in the waters around Iceland and established a 3-mile limit for
the exclusive right of fishery. This Convention, which was subject to
termination by either party on giving two years' notice, was mentioned as
one of the international agreements with which any regulations issued under
the Law would have to be compatible so long as the Convention remained in
force. In the following year, on 3 October 1949, the Government of Iceland
gave notice of the denunciation of the Convention, with the result that it
ceased to be in force after the expiry of the prescribed two-year period of
notice on 3 October 1951. Furthermore, during that interval this Court had
handed down its Judgment in the Fisheries case (I.C.J. Reports 1951, p. 116)
between the United Kingdom and Norway, in which it had endorsed the validity
of the system of straight baselines applied by Norway off the Norwegian
coast. Early in 1952, Iceland informed the United Kingdom of its intention
to issue new fishery regulations in accordance with the 1948 Law. Then, on
19 March of that year, Iceland issued Regulations providing for a fishery
zone whose outer limit was to be a line drawn 4 miles to seaward of straight
baselines traced along the outermost points of the coasts, islands and rocks
and across the opening of bays, and prohibiting all foreign fishing
activities within that zone.
22. The 1952 Fisheries Regulations met with protests from the United
Kingdom, regarding Iceland's claim to a 4-mile limit and certain features of
its straight-baseline system, which the United Kingdom considered to go
beyond the principles endorsed by the Court in the Fisheries case. After
various attempts to resolve the dispute, a modus vivendi was reached in 1956
under which there was to be no further extension of Iceland's fishery limits
pending discussion by the United Nations General Assembly in that year of
the Report of the International Law Commission on the Law of the Sea. This
discussion resulted in the convening at Geneva in 1958 of the first United
Nations Conference on the Law of the Sea. [p 12]
23. The 1958 Conference, having failed to reach agreement either on the
limit of the territorial sea or on the zone of exclusive fisheries, adopted
a resolution requesting the General Assembly to study the advisability of
convening a second Law of the Sea Conference specifically to deal with these
questions. After the conclusion of the 1958 Conference, Iceland made on 1
June 1958 a preliminary announcement of its intention to reserve the right
of fishing within an area of 12 miles from the baselines exclusively to
Icelandic fishermen, and to extend the fishing zone also by modification of
the baselines, and then on 30 June 1958 issued new "Regulations concerning
the Fisheries Limits off Iceland". Article 1 of these proclaimed a new
12-mile fishery limit around Iceland drawn from new baselines defined in
that Article, and Article 2 prohibited all fishing activities by foreign
vessels within the new fishery limit. Article 7 of the Regulations expressly
stated that they were promulgated in accordance with the Law of 1948
concerning Scientific Conservation of the Continental Shelf Fisheries.
24. The United Kingdom did not accept the validity of the new Regulations,
and its fishing vessels continued to fish inside the 12-mile limit, with the
result that a number of incidents occurred on the fishing grounds. Various
attempts were made to settle the dispute by negotiation but the dispute
remained unresolved. On 5 May 1959 the Althing passed a resolution on the
matter in which, inter alia, it said:
". . . the Althing declares 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" (emphasis added).
The Resolution thus stressed that the 12-mile limit asserted in the 1958
Regulations was merely a further step in Iceland's progress towards its
objective of a fishery zone extending over the whole of the continental
shelf area.
25. After the Second United Nations Conference on the Law of the Sea, in
1960, the United Kingdom and Iceland embarked on a series of negotiations
with a view to resolving their differences regarding the 12-mile fishery
limits and baselines claimed by Iceland in its 1958 Regulations. According
to the records of the negotiations which were drawn up by and have been
brought to the Court's attention by the Applicant, the Icelandic
representatives in their opening statement called attention to the proposals
submitted to the 1960 Conference on the Law of the Sea concerning
preferential rights and to the widespread support these proposals had
received, and asserted that Iceland, as a country in a special situation,
"should receive preferential treatment even beyond 12 [p 13] miles". Fishery
conservation measures outside the 12-mile limit, including the reservation
of areas for Icelandic fishing, were discussed, but while the United Kingdom
representatives recognized that "Iceland is a 'special situation' country",
no agreement was reached regarding fisheries outside the 12-mile limit. In
these discussions, the United Kingdom insisted upon receiving an assurance
concerning the future extension of Iceland's fishery jurisdiction and a
compromissory clause was then included in the Exchange of Notes which was
agreed upon by the Parties on 11 March 1961.
26. The substantive provisions of the settlement, which were set out in the
principal Note addressed by the Government of Iceland to the Government of
the United Kingdom, were as follows:
(1) The United Kingdom would no longer object to a 12-mile fishery zone
around Iceland measured from the baselines accepted solely for the purpose
of the delimitation of that zone.
(2) The United Kingdom accepted for that purpose the baselines set out in
the 1958 Regulations subject to the modification of four specified points.
(3) For a period of three years from the date of the Exchange of Notes,
Iceland would not object to United Kingdom vessels fishing within certain
specified areas and during certain stated months of the year.
(4) During that three-year period, however, United Kingdom vessels would not
fish within the outer 6 miles of the 12-mile zone in seven specified areas.
(5) Iceland "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 Note in reply the United Kingdom emphasized that:
". . . in view of the exceptional dependence of the Icelandic nation upon
coastal fisheries for their livelihood and economic development, and
without prejudice to the rights of the United Kingdom under international
law towards a third party, the contents of Your Excellency's Note are
acceptable to the United Kingdom and the settlement of the dispute has been
accomplished on the terms stated therein".
27. On 14 July 1971 the Government of Iceland issued a policy statement in
which, inter alia, it was said: [p 14]
"That the agreements on fisheries jurisdiction with the British and the West
Germans be terminated and that a decision be taken on the extension of
fisheries jurisdiction to 50 nautical miles from base lines, and that this
extension become effective not later than September 1st, 1972."
This led the Government of the United Kingdom, in an aide-memoire of 17 July
1971, to draw the attention of Iceland to the terms of the 1961 Exchange of
Notes regarding the right of either Party to refer to the Court any
extension of Iceland's fishery limits. While reserving all its rights, the
United Kingdom emphasized that the Exchange of Notes was not open to
unilateral denunciation or termination. This prompted discussions between
the two countries in which no agreement was reached; in an aide-memoire of
31 August 1971 Iceland stated that it considered the object and purpose of
the provision for recourse to judicial settlement to have been fully
achieved; and that it now found it essential to extend further the zone of
exclusive fisheries jurisdiction around its coasts to include the areas of
the sea covering the continental shelf. Iceland further added that the new
limits, the precise boundaries of which would be furnished at a later date,
would enter into force not later than 1 September 1972; and that it was
prepared to hold further meetings "for the purpose of achieving a practical
solution of the problems involved".
28. The United Kingdom replied on 27 September 1971 and placed formally on
record its view that "such an extension of the fishery zone ar6und Iceland
would have no basis in international law". It then controverted Iceland's
proposition that the object and purpose of the provision for recourse to
judicial settlement of disputes relating to an extension of fisheries
jurisdiction had been fully achieved, and again reserved all its rights
under that provision. At the same time, however, the United Kingdom
expressed its willingness, without prejudice to its legal position, to enter
into furthser exploratory discussions. In November 1971 the United Kingdom
and Iceland held discussions. At these talks, the British delegation stated
their view that Iceland's objectives could be achieved by a catch-limitation
agreement. In further talks which took place in January 1972 the United
Kingdom expressed its readiness to negotiate any arrangements for the
limitation of catches that scientific evidence might show to be necessary,
and in which any preferential requirements of the coastal State resulting
from its dependence on fisheries would be recognized. It further proposed,
as an interim measure pending the elaboration of a multilateral arrangement,
to limit its annual catch of demersal fish in Icelandic waters to 185,000
tons. The Icelandic Government was not, however, prepared to negotiate
further on this basis.
29. On 15 February 1972 the Althing adopted a Resolution reiterating the
fundamental policy of the Icelandic people that the continental shelf [p 15]
of Iceland and the superjacent waters were within the jurisdiction of
Iceland. While repeating that the provisions of the Exchange of Notes of
1961 no longer constituted an obligation for Iceland, it resolved, inter
alia:
"1. That the fishery limits will be extended to 50 miles from base-lines
around the country, to become effective not later than 1 September 1972.
3. That efforts to reach a solution of the problems connected with the
extension be continued through discussions with the Governments of the
United Kingdom and the Federal Republic of Germany.
4. That effective supervision of the fish stocks in the Iceland area be
continued in consultation with marine biologists and that the necessary
measures be taken for the protection of the fish stocks and specified areas
in order to prevent over-fishing . . ."
In an aide-memoire of 24 February 1972 Iceland's Minister for Foreign
Affairs formally notified the United Kingdom Ambassador in Reykjavik of his
Government's intention to proceed in accordance with this Resolution.
30. On 14 March 1972, the United Kingdom in an aide-memoire took note of the
decision of Iceland to issue new Regulations, reiterated its view that "such
an extension of the fishery zone around Iceland would have no basis in
international law", and rejected Iceland's contention that the Exchange of
Notes was no longer in force. Moreover, formal notice was also given by the
United Kingdom that an application would shortly be made to the Court in
accordance with the Exchange of Notes; the British Government was however
willing to continue discussions with Iceland "in order to agree satisfactory
practical arrangements for the period while the case is before the
International Court of Justice". On 14 April 1972, the United Kingdom filed
in the Registry its Application bringing the present case before the Court.
31. A series of negotiations between representatives of the two countries
soon followed and continued throughout May, June and July 1972, in the
course of which various proposals for catch-limitation, fishing-effort
limitation, area or seasonal restrictions for United Kingdom vessels were
discussed, in the hope of arriving at practical arrangements for an interim
regime pending the settlement of the dispute. By 12 July there was still no
agreement on such an interim regime, and the Icelandic delegation announced
that new Regulations would be issued on 14 July 1972 which would exclude all
foreign vessels from fishing within the 50-mile limit after 1 September
1972. The United Kingdom delegation replied that, while ready to continue
the discussions for an interim regime, they reserved the United Kingdom's
rights in areas outside the 12-mile [p 16] limit and would seek an Order for
interim measures of protection from the Court. The new Regulations, issued
on 14 July 1972, extended Iceland's fishery limits to 50 miles as from 1
September 1972 and, by Article 2, prohibited all fishing activities by
foreign vessels inside those limits. Consequently, on 19 July 1972, the
United Kingdom filed its request for the indication of interim measures of
protection.
32. On 11 August 1972 the Icelandic Foreign Ministry sent a Note to the
United Kingdom Embassy in Reykjavik, in which the Icelandic Government
renewed its interest in the recognition of its preferential rights in the
area, an issue which had already been raised in 1967 by the Icelandic
delegation to the North-East Atlantic Fisheries Commission. In a memorandum
presented at the Fifth Meeting of that Commission, the Icelandic delegation
had drawn attention to the need for consideration of the total problem of
limiting fishing effort in Icelandic waters by, for example, a quota system
under which the priority position of Iceland would be respected in
accordance with internationally recognized principles regarding the
preferential requirements of the coastal State where the people were
overwhelmingly dependent upon the resources involved for their livelihood.
In the Note of 11 August 1972 it was recalled that:
"The Icelandic representatives laid main emphasis on receiving from the
British side positive replies to two fundamental points:
1. Recognition of preferential rights for Icelandic vessels as to fishing
outside the 12-mile limit.
2. That Icelandic authorities should have full rights and be in a position
to enforce the regulations established with regard to fishing inside the
50-mile limit."
Thus, while Iceland invoked preferential rights and the Applicant was
prepared to recognize them, basic differences remained as to the extent and
scope of those rights, and as to the methods for their implementation and
their enforcement. There can be little doubt that these divergences of views
were some of "the problems connected with the extension" in respect of which
the Althing Resolution of 15 February 1972 had instructed the Icelandic
Government to make "efforts to reach a solution".
33. On 17 August 1972 the Court made an Order for provisional measures in
which, inter alia, it indicated that, pending the Court's final decision in
the proceedings, Iceland should refrain from taking any measures to enforce
the Regulations of 14 July 1972 against United Kingdom vessels engaged in
fishing outside the 12-mile fishery zone; and that the United Kingdom should
limit the annual catch of its vessels in the "Sea Area of Iceland" to
170,000 tons. That the United Kingdom has [p 17] complied with the terms of
the catch-limitation measure indicated in the Court's Order has not been
questioned or disputed. Iceland, on the other hand, notwithstanding the
measures indicated by the Court, began to enforce the new Regulations
against United Kingdom vessels soon after they came into effect on 1
September 1972. Moreover, when in August 1972 the United Kingdom made it
clear to Iceland that in its view any settlement between the parties of an
interim regime should be compatible with the Court's Order, Iceland replied
on 30 August that it would not consider the Order to be binding upon it
"since the Court has no jurisdiction in the matter".
34. By its Judgment of 2 February 1973, the Court found that it had
jurisdiction to entertain the Application and to deal with the merits of the
dispute. However, even after the handing down of that Judgment, Iceland
persisted in its efforts to enforce the 50-mile limit against United
King-dom vessels and, as appears from the letter of 11 January 1974
addressed to the Court by the Minister for Foreign Affairs of Iceland,
mentioned above, it has continued to deny the Court's competence to
entertain the dispute.
***
35. Negotiations for an interim arrangement were, however, resumed between
the two countries, and were carried on intermittently during 1972 and 1973.
In the meantime incidents on the fishing grounds involving British and
Icelandic vessels were becoming increasingly frequent, and eventually
discussions between the Prime Ministers of Iceland and the United Kingdom in
1973 led to the conclusion of an "Interim Agreement in the Fisheries
Dispute" constituted by an Exchange of Notes dated 13 November 1973.
36. The terms of the Agreement were set out in the Icelandic Note, which
began by referring to the discussions which had taken place and continued:
"In these discussions the following arrangements have been worked out for an
interim agreement relating to fisheries in the disputed area, pending a
settlement of the substantive dispute and without prejudice to the legal
position or rights of either Govern-ment in relation thereto, which are
based on an estimated annual catch of about 130,000 metric tons by British
vessels."
The arrangements for the fishing activities of United Kingdom vessels in the
disputed area were then set out, followed by paragraph 7 which stipulated:
"The agreement will run for two years from the present date. Its [p 18]
termination will not affect the legal position of either Government with
respect to the substantive dispute."
The Note ended with the formal proposal, acceptance of which was confirmed
in the United Kingdom's reply, that the Exchange of Notes should "constitute
an interim agreement between our two countries".
37. The interim agreement contained no express reference to the present
proceedings before the Court nor any reference to any waiver, whether by the
United Kingdom or by Iceland, of any claims in respect of the matters in
dispute. On the contrary, it emphasized that it was an interim agreement,
that it related to fisheries in the disputed area, that it was concluded
pending a settlement of the substantive dispute, and that it was without
prejudice to the legal position or rights of either Government in relation
to the substantive dispute. In the light of these saving clauses, it is
clear that the dispute still continues, that its final settlement is
regarded as pending, and that the Parties meanwhile maintain their legal
rights and claims as well as their respective stands in the conflict. The
interim agreement thus cannot be described as a "phasing-out" agree-ment, a
term which refers to an arrangement whereby both parties consent to the
progressive extinction of the fishing rights of one of them over a limited
number of years. Nor could the interim agreement be interpreted as
constituting a bar to, or setting up any limitation on, the pursuit by the
Applicant of its claim before the Court. On the face of the text, it was not
intended to affect the legal position or rights of either country in
relation to the present proceedings. That this was the United Kingdom's
understanding of the interim agreement is confirmed by a statement made by
the British Prime Minister in the House of Commons on the date of its
conclusion: "Our position at the World Court remains exactly as it is, and
the agreement is without prejudice to the case of either country in this
matter." The Government of Iceland for its part, in the letter of 11 January
1974 already referred to, stated that:
"This agreement is in further implementation of the policy of the Government
of Iceland to solve the practical difficulties of the British trawling
industry arising out of the application of the 1948 Law and the Althing
Resolution of 14 February 1972, by providing an adjustment during the next
two years. It also contributes to the reduction of tension which has been
provoked by the presence of British armed naval vessels within the
fifty-mile limit."
38. The interim agreement of 1973, unlike the 1961 Exchange of Notes, does
not describe itself as a "settlement" of the dispute, and, apart from being
of limited duration, clearly possesses the character of a provisional
arrangement adopted without prejudice to the rights of the Parties, nor does
it provide for the waiver of claims by either Party in respect of the
matters in dispute. The Applicant has not sought to withdraw or discontinue
its proceedings. The primary duty of the Court is to discharge [p 19] its
judicial function and it ought not therefore to refuse to adjudicate merely
because the Parties, while maintaining their legal positions, have entered
into an agreement one of the objects of which was to prevent the
continuation of incidents. When the Court decided, by its Order of 12 July
1973, to confirm that the provisional measures in the present case should
remain operative until final judgment was given, it was aware that
negotiations had taken place between the Parties with a view to reaching an
interim arrangement, and it stated specifically that "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 . . ." (Fisheries Jurisdiction (United Kingdom v. Iceland),
Interim Measures, Order of 12 July 1973, I.C.J. Reports 1973, p. 303, para.
7).
39. In response to questions put by a Member of the Court, counsel for the
United Kingdom expressed the view that the interim agreement, as a treaty in
force, regulates the relations between the two countries so far as British
fishing is concerned in the specified areas. The judgment of the Court, the
United Kingdom envisages, will state the rules of customary international
law between the Parties, defining their respective rights and obligations,
but will not completely replace with immediate effect the interim agreement,
which will remain a treaty in force. In so far as the judgment may possibly
deal with matters which are not covered in the interim agreement, the
judgment would, in the understanding of the United Kingdom, have immediate
effect; the Parties will in any event be under a duty fully to regulate
their relations in accordance with the terms of the judgment as soon as the
interim agreement ceases to be in force, i.e., on 13 November 1975 or such
earlier date as the Parties may agree. In the view of the United Kingdom,
the Court's judgment will:
". . . constitute an authoritative statement of the rights and obligations
of the parties under existing law and may provide a basis for the
negotiation of arrangements to follow those contained in the Interim
Agreement".
40. The Court is of the view that there is no incompatibility with its
judicial function in making a pronouncement on the rights and duties of the
Parties under existing international law which would clearly be capable of
having a forward reach; this does not mean that the Court should declare the
law between the Parties as it might be at the date of expiration of the
interim agreement, a task beyond the powers of any tribunal. The possibility
of the law changing is ever present: but that cannot relieve the Court from
its obligation to render a judgment on the basis of the law as it exists at
the time of its decision. In any event it cannot be said that the issues now
before the Court have become without object; for there is no doubt that the
case is one in which "there exists at [p 20] the time of the adjudication an
actual controversy involving a conflict of legal interests between the
Parties" (Northern Cameroons, Judgment, I.C.J. Reports 1963, pp. 33-34).
41. Moreover, if the Court were to come to the conclusion that the interim
agreement prevented it from rendering judgment, or compelled it to dismiss
the Applicant's claim as one without object, the inevitable result would be
to discourage the making of interim arrangements in future disputes with the
object of reducing friction and avoiding risk to peace and security. This
would run contrary to the purpose enshrined in the provisions of the United
Nations Charter relating to the pacific settlement of disputes. It is
because of the importance of these considerations that the Court has felt
it necessary to state at some length its views on the inferences discussed
above. The Court concludes that the existence of the interim agreement ought
not to lead it to refrain from pronouncing judgment in the case.
***
42. The question has been raised whether the Court has jurisdiction to
pronounce upon certain matters referred to the Court in the last paragraph
of the Applicant's final submissions (paragraphs 11 and 12 above) to the
effect that the parties are under a duty to examine together the existence
and extent of the need for restrictions of fishing activities in Icelandic
waters on conservation grounds and to negotiate for the establishment of
such a regime as will, inter alia, ensure for Iceland a preferential
position consistent with its position as a State specially dependent on its
fisheries.
43. In its Judgment of 2 February 1973, pronouncing on the jurisdiction of
the Court in the present case, the Court found "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" (I.C.J. Reports 1973, p. 22, para. 46). The
Application which the Court found it had jurisdiction to entertain contained
a submission under letter (b) (cf. paragraph 11 above) which in its second
part raised the issues of conservation of fishery resources and of
preferential fishing rights. These questions, among others, had previously
been discussed in the negotiations between the parties referred to in
paragraphs 27 to 32 above and were also extensively examined in the
pleadings and hearings on the merits.
44. The Order of the Court indicating interim measures of protection
(Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection,
Order of 17 August 1972, I.C.J. Reports 1972, p. 12) implied that the case
before the Court involved questions of fishery conservation and of
preferential fishing rights since, in indicating a catch-limitation figure
for the Applicant's fishing, the Court stated that this measure was based on
"the exceptional dependence of the Icelandic nation upon coastal [p 21]
fisheries" and "of the need for the conservation of fish stocks in the
Iceland area" (loc. cit., pp. 16-17, paras. 23 and 24).
45. In its Judgment of 2 February 1973, pronouncing on its jurisdiction in
the case, the Court, after taking into account the aforesaid contentions of
the Applicant concerning fishery conservation and preferential rights,
referred again to "the exceptional dependence of Iceland on its fisheries
and the principle of conservation of fish stocks" (I.C.J. Reports 1973, p.
20, para. 42). The judicial notice taken therein of the recognition given by
the Parties to the exceptional dependence of Iceland on its fisheries and to
the need of conservation of fish stocks in the area clearly implies that
such questions are before the Court.
46. The Order of the Court of 12 July 1973 on the continuance of interim
measures of protection referred again to catch limitation figures and also
to the question of "related restrictions concerning areas closed to fishing,
number and type of vessels allowed and forms of control of the agreed
provisions" (I.C.J. Reports 1973, p. 303, para. 7). Thus the Court took the
view that those questions were within its competence. As the Court stated in
its Order of 17 August 1972, there must be a connection "under Article 61,
paragraph 1, of the Rules between a request for interim measures of
protection and the original Application filed with the Court" (I.C.J.
Reports 1972, p. 15, para. 12).
47. As to the compromissory clause in the 1961 Exchange of Notes, this gives
the Court jurisdiction with respect to "a dispute in relation to such
extension", i.e., "the extension of fisheries jurisdiction around Iceland".
The present dispute was occasioned by Iceland's unilateral extension of its
fisheries jurisdiction. However, it would be too narrow an interpretation of
the compromissory clause to conclude that the Court's jurisdiction is
limited to giving an affirmative or a negative answer to the question of
whether the extension of fisheries jurisdiction, as enacted by Iceland on 14
July 1972, is in conformity with international law. In the light of the
negotiations between the Parties, both in 1960 (paragraph 25 above) and in
1971-1972 (paragraphs 28 to 32 above), in which the questions of fishery
conservation measures in the area and Iceland's preferential fishing rights
were raised and discussed, and in the light of the proceedings before the
Court, it seems evident that the dispute between the Parties includes
disagreements as to the extent and scope of their respective rights in the
fishery resources and the adequacy of measures to conserve them. It must
therefore be concluded that those disagreements are an element of the
"dispute in relation to the extension of fisheries jurisdiction around
Iceland".
48. Furthermore, the dispute before the Court must be considered in all its
aspects. Even if the Court's competence were understood to be confined to
the question of the conformity of Iceland's extension with the rules of
international law, it would still be necessary for the Court to [p 22]
determine in that context the role and function which those rules reserve to
the concept of preferential rights and that of conservation of fish stocks.
Thus, whatever conclusion the Court may reach in regard to preferential
rights and conservation measures, it is bound to examine these questions
with respect to this case. Consequently, the suggested restriction on the
Court's competence not only cannot be read into the terms of the
compromissory clause, but would unduly encroach upon the power of the Court
to take into consideration all relevant elements in administering justice
between the Parties.
***
49. The Applicant has challenged the Regulations promulgated by the
Government of Iceland on 14 July 1972, and since the Court has to pronounce
on this challenge, the ascertainment of the law applicable becomes
necessary. As the Court stated in the Fisheries case:
"The delimitation of sea areas has always an international aspect; it cannot
be dependent merely upon the will of the coastal State as expressed in its
municipal law. Although it is true that the act of delimitation is
necessarily a unilateral act, because only the coastal State is competent to
undertake it, the validity of the delimitation with regard to other States
depends upon international law." (I.C.J. Reports 1951, p. 132.)
The Court will therefore proceed to the determination of the existing rules
of international law relevant to the settlement of the present dispute.
50. The Geneva Convention on the High Seas of 1958, which was adopted "as
generally declaratory of established principles of international law",
defines in Article 1 the term "high seas" as "all parts of the sea that are
not included in the territorial sea or in the internal waters of a State".
Article 2 then declares that "The high seas being open to all nations, no
State may validly purport to subject any part of them to its sovereignty"
and goes on to provide that the freedom of the high seas comprises, inter
alia, both for coastal and non-coastal States, freedom of navigation and
freedom of fishing. The freedoms of the high seas are however made subject
to the consideration that they "shall be exercised by all States with
reasonable regard to the interests of other States in their exercise of the
freedom of the high seas".
51. The breadth of the territorial sea was not defined by the 1958
Convention on the Territorial Sea and the Contiguous Zone. It is true that
Article 24 of this Convention limits the contiguous zone to 12 miles "from
the baseline from which the breadth of the territorial sea is measured". At
the 1958 Conference, the main differences on the breadth [p 23] of the
territorial sea were limited at the time to disagreements as to what limit,
not exceeding 12 miles, was the appropriate one. The question of the breadth
of the territorial sea and that of the extent of the coastal State's fishery
jurisdiction were left unsettled at the 1958 Conference. These questions
were referred to the Second Conference on the Law of the Sea, held in 1960.
Furthermore, the question of the extent of the fisheries jurisdiction of the
coastal State, which had constituted a serious obstacle to the reaching of
an agreement at the 1958 Conference, became gradually separated from the
notion of the territorial sea. This was a development which reflected the
increasing importance of fishery resources for all States.
52. The 1960 Conference failed by one vote to adopt a text governing the two
questions of the breadth of the territorial sea and the extent of fishery
rights. However, after that Conference the law evolved through the practice
of States on the basis of the debates and near-agreements at the Conference.
Two concepts have crystallized as customary law in recent years arising out
of the general consensus revealed at that Conference. The first is the
concept of the fishery zone, the area in which a State may claim exclusive
fishery jurisdiction independently of its territorial sea; the extension of
that fishery zone up to a 12-mile limit from the baselines appears now to be
generally accepted. The second is the concept of preferential rights of
fishing in adjacent waters in favour of the coastal State in a situation of
special dependence on its coastal fisheries, this preference operating in
regard to other States concerned in the exploitation of the same fisheries,
and to be implemented in the way indicated in paragraph 57 below.
53. In recent years the question of extending the coastal State's fisheries
jurisdiction has come increasingly to the forefront. The Court is aware that
a number of States has asserted an extension of fishery limits. The Court is
also aware of present endeavours, pursued under the auspices of the United
Nations, to achieve in a third Conference on the Law of the Sea the further
codification and progressive development of this branch of the law, as it is
of various proposals and preparatory documents produced in this framework,
which must be regarded as manifestations of the views and opinions of
individual States and as vehicles of their aspirations, rather than as
expressing principles of existing law. The very fact of convening the third
Conference on the Law of the Sea evidences a manifest desire on the part of
all States to proceed to the codification of that law on a universal basis,
including the question of fisheries and conservation of the living resources
of the sea. Such a general desire is understandable since the rules of
international maritime law have been the product of mutual accommodation,
reasonableness and co-operation. So it was in the past, and so it
necessarily is today. In the circumstances, the Court, as a court of law,
cannot render judgment sub [p 24] specie legis ferendae, or anticipate the
law before the legislator has laid it down.
54. The concept of a 12-mile fishery zone, referred to in paragraph 52
above, as a tertium genus between the territorial sea and the high seas, has
been accepted with regard to Iceland in the substantive provisions of the
1961 Exchange of Notes, and the United Kingdom has also applied the same
fishery limit to its own coastal waters since 1964; therefore this matter is
no longer in dispute between the Parties. At the same time, the concept of
preferential rights, a notion that necessarily implies the existence of
other legal rights in respect of which that preference operates, has been
admitted by the Applicant to be relevant to the solution of the present
dispute. Moreover, the Applicant has expressly recognized Iceland's
preferential rights in the disputed waters and at the same time has invoked
its own historic fishing rights in these same waters, on the ground that
reasonable regard must be had to such traditional rights by the coastal
State, in accordance with the generally recognized principles embodied in
Article 2 of the High Seas Convention. If, as the Court pointed out in its
dictum in the Fisheries case, cited in paragraph 49 above, any national
delimitation of sea areas, to be opposable to other States, requires
evaluation in terms of the existing rules of international law, then it
becomes necessary for the Court, in its examination of the Icelandic
fisheries Regulations, to take those elements into consideration as well.
Equally it has necessarily to take into account the provisions of the
Exchange of Notes of 1961 which govern the relations between the Parties
with respect to Iceland's fishery limits. The said Exchange of Notes, which
was concluded within the framework of the existing provisions of the law of
the sea, was held by the Court, in its Judgment of 2 February 1973, to be a
treaty which is valid and in force.
***
55. The concept of preferential rights for the coastal State in a situation
of special dependence on coastal fisheries originated in proposals
submitted by Iceland at the Geneva Conference of 1958. Its delegation drew
attention to the problem which would arise when, in spite of adequate
fisheries conservation measures, the yield ceased to be sufficient to
satisfy the requirements of all those who were interested in fishing in a
given area. Iceland contended that in such a case, when a catch-limitation
becomes necessary, special consideration should be given to the coastal
State whose population is overwhelmingly dependent on the fishing resources
in its adjacent waters.
56. An Icelandic proposal embodying these ideas failed to obtain the
majority required, but a resolution was adopted at the 1958 Conference [p
25] concerning the situation of countries or territories whose people are
overwhelmingly dependent upon coastal fisheries for their livelihood or
economic development. This resolution, after "recognizing that such
situations call for exceptional measures befitting particular needs"
recommended that:
"... where, for the purpose of conservation, it becomes necessary to limit
the total catch of a stock or stocks of fish in an area of the high seas
adjacent to the territorial sea of a coastal State, any other States fishing
in that area should collaborate with the coastal State to secure just
treatment of such situation, by establishing agreed measures which shall
recognize any preferential requirements of the coastal State resulting from
its dependence upon the fishery concerned while having regard to the
interests of the other States".
The resolution further recommended that "appropriate conciliation and
arbitral procedures shall be established for the settlement of any
disagreement".
57. At the Plenary Meetings of the 1960 Conference the concept of
preferential rights was embodied in a joint amendment presented by Brazil,
Cuba and Uruguay which was subsequently incorporated by a substantial vote
into a joint United States-Canadian proposal concerning a 6-mile territorial
sea and an additional 6-mile fishing zone, thus totalling a 12-mile
exclusive fishing zone, subject to a phasing-out period. This amendment
provided, independently of the exclusive fishing zone, that the coastal
State had:
". . . the faculty of claiming preferential fishing rights in any area of
the high seas adjacent to its exclusive fishing zone when it is
scientifically established that a special situation or condition makes the
exploitation of the living resources of the high seas in that area of
fundamental importance to the economic development of the coastal State or
the feeding of its population".
It also provided that:
"A special situation or condition may be deemed to exist when:
(a) The fisheries and the economic development of the coastal State or the
feeding of its population are so manifestly interrelated that, in
consequence, that State is greatly dependent on the living resources of the
high seas in the area in respect of which preferential fishing is being
claimed;
(b) It becomes necessary to limit the total catch of a stock or stocks of
fish in such areas . . ."
The contemporary practice of States leads to the conclusion that the [p 26]
preferential rights of the coastal State in a special situation are to be
implemented by agreement between the States concerned, either bilateral or
multilateral, and, in case of disagreement, through the means for the
peaceful settlement of disputes provided for in Article 33 of the Charter of
the United Nations. It was in fact an express condition of the amendment
referred to above that any other State concerned would have the right to
request that a claim made by a coastal State should be tested and
determined by a special commission on the basis of scientific criteria and
of evidence presented by the coastal State and other States concerned. The
commission was to be empowered to determine, for the period of time and
under the limitations that it found necessary, the preferential rights of
the coastal State, "while having regard to the interests of any other State
or States in the exploitation of such stock or stocks of fish".
58. State practice on the subject of fisheries reveals an increasing and
widespread acceptance of the concept of preferential rights for coastal
States, particularly in favour of countries or territories in a situation of
special dependence on coastal fisheries. Both the 1958 Resolution and the
1960 joint amendment concerning preferential rights were approved by a large
majority of the Conferences, thus showing overwhelming support for the idea
that in certain special situations it was fair to recognize that the coastal
State had preferential fishing rights. After these Conferences, the
preferential rights of the coastal State were recognized in various
bilateral and multilateral international agreements. The Court's attention
has been drawn to the practice in this regard of the North-West and
North-East Atlantic Fisheries Commissions, of which 19 maritime States
altogether, including both Parties, are members; its attention has also been
drawn to the Arrangement Relating to Fisheries in Waters Surrounding the
Faroe Islands, signed at Copenhagen on 18 December 1973 on behalf of the
Governments of Belgium, Denmark, France, the Federal Republic of Germany,
Norway, Poland and the United Kingdom, and to the Agreement on the
Regulation of the Fishing of North-East Arctic (Arcto-Norwegian) Cod, signed
on 15 March 1974 on behalf of the Governments of the United Kingdom, Norway
and the Union of Soviet Socialist Republics. Both the aforesaid agreements,
in allocating the annual shares on the basis of the past performance of the
parties in the area, assign an additional share to the coastal State on the
ground of its preferential right in the fisheries in its adjacent waters.
The Faroese agreement takes expressly into account in its preamble "the
exceptional dependence of the Faroese economy on fisheries" and recognizes
"that the Faroe Islands should enjoy preference in waters surrounding the
Faroe Islands".
59. There can be no doubt of the exceptional dependence of Iceland on its
fisheries. That exceptional dependence was explicitly recognized by the
Applicant in the Exchange of Notes of 11 March 1961, and the Court [p 27]
has also taken judicial notice of such recognition, by declaring that it is
"necessary to bear in mind the exceptional dependence of the Icelandic
nation upon coastal fisheries for its livelihood and economic development"
(I.C.J. Reports 1972, p. 16, para. 23).
60. The preferential rights of the coastal State come into play only at the
moment when an intensification in the exploitation of fishery resources
makes it imperative to introduce some system of catch-limitation and sharing
of those resources, to preserve the fish stocks in the interests of their
rational and economic exploitation. This situation appears to have been
reached in the present case. In regard to the two main demersal species
concernedcod and haddockthe Applicant has shown itself aware of the need
for a catch-limitation which has become indispensable in view of the
establishment of catch-limitations in other regions of the North Atlantic.
If a system of catch-limitation were not established in the Icelandic area,
the fishing effort displaced from those other regions might well be directed
towards the unprotected grounds in that area.
***
61. The Icelandic regulations challenged before the Court have been issued
and applied by the Icelandic authorities as a claim to exclusive rights thus
going beyond the concept of preferential rights. Article 2 of the Icelandic
Regulations of 14 July 1972 states:
"Within the fishery limits all fishing activities by foreign vessels shall
be prohibited in accordance with the provisions of Law No. 33 of 19 June
1922, concerning Fishing inside the Fishery Limits."
Article 1 of the 1922 Law provides: "Only Icelandic citizens may engage in
fishing in the territorial waters of Iceland, and only Icelandic boats or
ships may be used for such fishing." The language of the relevant government
regulations indicates that their object is to establish an exclusive fishery
zone, in which all fishing by vessels registered in other States, including
the United Kingdom, would be prohibited. The mode of implementation of the
regulations, carried out by Icelandic governmental authorities vis-ΰ-vis
United Kingdom fishing vessels, before the 1973 interim agreement, and
despite the Court's interim measures, confirms this interpretation.
62. The concept of preferential rights is not compatible with the exclusion
of all fishing activities of other States. A coastal State entitled to
preferential rights is not free, unilaterally and according to its own
uncontrolled discretion, to determine the extent of those rights. The
charac-terization of the coastal State's rights as preferential implies a
certain priority, but cannot imply the extinction of the concurrent rights
of other [p 28] States, and particularly of a State which, like the
Applicant, has for many years been engaged in fishing in the waters in
question, such fishing activity being important to the economy of the
country concerned. The coastal State has to take into account and pay regard
to the position of such other States, particularly when they have
established an economic dependence on the same fishing grounds. Accordingly,
the fact that Iceland is entitled to claim preferential rights does not
suffice to justify its claim unilaterally to exclude the Applicant's fishing
vessels from all fishing activity in the waters beyond the limits agreed to
in the 1961 Exchange of Notes.
***
63. In this case, the Applicant has pointed out that its vessels have been
fishing in Icelandic waters for centuries and that they have done so in a
manner comparable with their present activities for upwards of 50 years.
Published statistics indicate that from 1920 onwards, fishing of demersal
species by United Kingdom vessels in the disputed area has taken place on a
continuous basis from year to year, and that, except for the period of the
Second World War, the total catch of those vessels has been remarkably
steady. Similar statistics indicate that the waters in question constitute
the most important of the Applicant's distant-water fishing grounds for
demersal species.
64. The Applicant further states that in view of the present situation of
fisheries in the North Atlantic, which has demanded the establishment of
agreed catch-limitations of cod and haddock in various areas, it would not
be possible for the fishing effort of United Kingdom vessels displaced from
the Icelandic area to be diverted at economic levels to other fishing
grounds in the North Atlantic. Given the lack of alternative fishing
opportunity, it is further contended, the exclusion of British fishing
vessels from the Icelandic area would have very serious adverse
con-sequences, with immediate results for the affected vessels and with
damage extending over a wide range of supporting and related industries. It
is pointed out in particular that wide-spread unemployment would be caused
among all sections of the British fishing industry and in ancillary
industries and that certain portsHull, Grimsby and Fleetwood specially
reliant on fishing in the Icelandic area, would be seriously affected.
65. Iceland has for its part admitted the existence of the Applicant's
historic and special interests in the fishing in the disputed waters. The
Exchange of Notes as a whole and in particular its final provision
requiring Iceland to give advance notice to the United Kingdom of any
extension of its fishery limits impliedly acknowledged the existence of
United Kingdom fishery interests in the waters adjacent to the 12-mile
limit. The discussions which have taken place between the two countries also
imply an acknowledgement by Iceland of the existence of such [p 29]
interests. Furthermore, the Prime Minister of Iceland stated on 9 November
1971:
". . . the British have some interests to protect in this connection. For a
long time they have been fishing in Icelandic waters . .. The well-being of
specific British fishing towns may nevertheless to some extent be connected
with the fisheries in Icelandic waters . .."
66. Considerations similar to those which have prompted the recognition of
the preferential rights of the coastal State in a special situation apply
when coastal populations in other fishing States are also dependent on
certain fishing grounds. In both instances the economic dependence and the
livelihood of whole communities are affected. Not only do the same
considerations apply, but the same interest in conservation exists. In this
respect the Applicant has recognized that the conservation and efficient
exploitation of the fish stocks in the Iceland area are of importance not
only to Iceland but also to the United Kingdom.
67. The provisions of the Icelandic Regulations of 14 July 1972 and the
manner of their implementation disregard the fishing rights of the
Applicant. Iceland's unilateral action thus constitutes an infringement of
the principle enshrined in Article 2 of the 1958 Geneva Convention on the
High Seas which requires that all States, including coastal States, in
exercising their freedom of fishing, pay reasonable regard to the interests
of other States. It also disregards the rights of the Applicant as they
result from the Exchange of Notes of 1961. The Applicant is therefore
justified in asking the Court to give all necessary protection to its own
rights, while at the same time agreeing to recognize Iceland's preferential
position. Accordingly, the Court is bound to conclude that the Icelandic
Regulations of 14 July 1972 establishing a zone of exclusive fisheries
jurisdiction extending to 50 nautical miles from baselines around the coast
of Iceland, are not opposable to the United Kingdom, and the latter is under
no obligation to accept the unilateral termination by Iceland of United
Kingdom fishery rights in the area.
68. The findings stated by the Court in the preceding paragraphs suffice to
provide a basis for the decision of the present case, namely: that Iceland's
extension of its exclusive fishery jurisdiction beyond 12 miles is not
opposable to the United Kingdom; that Iceland may on the other hand claim
preferential rights in the distribution of fishery resources in the adjacent
waters; that the United Kingdom also has established rights with respect to
the fishery resources in question; and that the principle of reasonable
regard for the interests of other States enshrined in Article 2 of the
Geneva Convention on the High Seas of 1958 requires Iceland and the United
Kingdom to have due regard to each other's interests, and to the interests
of other States, in those resources.
[p30]
***
69. It follows from the reasoning of the Court in this case that in order to
reach an equitable solution of the present dispute it is necessary that the
preferential fishing rights of Iceland, as a State specially dependent on
coastal fisheries, be reconciled with the traditional fishing rights of the
Applicant. Such a reconciliation cannot be based, however, on a phasing-out
of the Applicant's fishing, as was the case in the 1961 Exchange of Notes
in respect of the 12-mile fishery zone. In that zone, Iceland was to
exercise exclusive fishery rights while not objecting to continued fishing
by the Applicant's vessels during a phasing-out period. In adjacent waters
outside that zone, however, a similar extinction of rights of other fishing
States, particularly when such rights result from a situation of economic
dependence and long-term reliance on certain fishing grounds, would not be
compatible with the notion of preferential rights as it was recognized at
the Geneva Conferences of 1958 and 1960, nor would it be equitable. At the
1960 Conference, the concept of preferential rights of coastal States in a
special situation was recognized in the joint amendment referred to in
paragraph 57 above, under such limitations and to such extent as is found
"necessary by reason of the dependence of the coastal State on the stock or
stocks of fish, while having regard to the interests of any other State or
States in the exploitation of such stock or stocks of fish". The reference
to the interests of other States in the exploitation of the same stocks
clearly indicates that the preferential rights of the coastal State and the
established rights of other States were considered as, in principle,
continuing to co-exist.
70. This is not to say that the preferential rights of a coastal State in a
special situation are a static concept, in the sense that the degree of the
coastal State's preference is to be considered as fixed for ever at some
given moment. On the contrary, the preferential rights are a function of the
exceptional dependence of such a coastal State on the fisheries in adjacent
waters and may, therefore, vary as the extent of that dependence changes.
Furthermore, as was expressly recognized in the 1961 Exchange of Notes, a
coastal State's exceptional dependence on fisheries may relate not only to
the livelihood of its people but to its economic development. In each case,
it is essentially a matter of appraising the dependence of the coastal State
on the fisheries in question in relation to that of the other State
concerned and of reconciling them in as equitable a manner as is possible.
71. In view of the Court's finding (paragraph 67 above) that the Icelandic
Regulations of 14 July 1972 are not opposable to the United Kingdom for the
reasons which have been stated, it follows that the Government of Iceland is
not in law entitled unilaterally to exclude United Kingdom fishing vessels
from sea areas to seaward of the limits agreed to in the 1961 Exchange of
Notes or unilaterally to impose restrictions on their activities in such
areas. But the matter does not end there; [p 31] as the Court has indicated,
Iceland is, in view of its special situation, entitled to preferential
rights in respect of the fish stocks of the waters adjacent to its coasts.
Due recognition must be given to the rights of both Parties, namely the
rights of the United Kingdom to fish in the waters in dispute, and the
preferential rights of Iceland. Neither right is an absolute one: the
preferential rights of a coastal State are limited according to the extent
of its special dependence on the fisheries and by its obligation to take
account of the rights of other States and the needs of conservation; the
established rights of other fishing States are in turn limited by reason of
the coastal State's special dependence on the fisheries and its own
obligation to take account of the rights of other States, including the
coastal State, and of the needs of conservation.
72. It follows that even if the Court holds that Iceland's extension of its
fishery limits is not opposable to the Applicant, this does not mean that
the Applicant is under no obligation to Iceland with respect to fishing in
the disputed waters in the 12-mile to 50-mile zone. On the contrary, both
States have an obligation to take full account of each others rights and of
any fishery conservation measures the necessity of which is shown to exist
in those waters. It is one of the advances in maritime international law,
resulting from the intensification of fishing, that the former laissez-faire
treatment of the living resources of the sea in the high seas has been
replaced by a recognition of a duty to have due regard to the rights of
other States and the needs of conservation for the benefit of all.
Consequently, both Parties have the obligation to keep under review the
fishery resources in the disputed waters and to examine together, in the
light of scientific and other available information, the measures required
for the conservation and development, and equitable exploitation, of those
resources, taking into account any international agreement in force between
them, such as the North-East Atlantic Fisheries Convention of 24 January
1959, as well as such other agreements as may be reached in the matter in
the course of further negotiation.
***
73. The most appropriate method for the solution of the dispute is clearly
that of negotiation. Its objective should be the delimitation of the rights
and interests of the Parties, the preferential rights of the coastal State
on the one hand and the rights of the Applicant on the other, to balance and
regulate equitably questions such as those of catch-limitation, share
allocations and "related restrictions concerning areas closed to fishing,
number and type of vessels allowed and forms of control of the agreed
provisions" (Fisheries Jurisdiction (United Kingdom v. Iceland), Interim
Measures, Order of 12 July 1973, I.C.J. Reports 1973, p. 303, [p 32] para.
7). This necessitates detailed scientific knowledge of the fishing grounds.
It is obvious that the relevant information and expertise would be mainly in
the possession of the Parties. The Court would, for this reason, meet with
difficulties if it were itself to attempt to lay down a precise scheme for
an equitable adjustment of the rights involved. It is thus obvious that both
in regard to merits and to jurisdiction the Court only pronounces on the
case which is before it and not on any hypothetical situation which might
arise in the future.
74. It is implicit in the concept of preferential rights that negotiations
are required in order to define or delimit the extent of those rights, as
was already recognized in the 1958 Geneva Resolution on Special Situations
relating to Coastal Fisheries, which constituted the starting point of the
law on the subject. This Resolution provides for the establishment, through
collaboration between the coastal State and any other State fishing in the
area, of agreed measures to secure just treatment of the special situation.
75. The obligation to negotiate thus flows from the very nature of the
respective rights of the Parties; to direct them to negotiate is therefore a
proper exercise of the judicial function in this case. This also corresponds
to the Principles and provisions of the Charter of the United Nations
concerning peaceful settlement of disputes. As the Court stated in the North
Sea Continental Shelf cases:
". . . this obligation merely constitutes a special application of a
principle which underlies all international relations, and which is moreover
recognized in Article 33 of the Charter of the United Nations as one of the
methods for the peaceful settlement of international disputes" (I.C.J.
Reports 1969, p. 47, para. 86).
76. In this case negotiations were initiated by the Parties from the date
when Iceland gave notice of its intention to extend its fisheries
jurisdiction, but these negotiations reached an early deadlock, and could
not come to any conclusion; subsequently, further negotiations were directed
to the conclusion of the interim agreement of 13 November 1973. The
obligation to seek a solution of the dispute by peaceful means, among which
negotiations are the most appropriate to this case, has not been eliminated
by that interim agreement. The question has been raised, however, on the
basis of the deletion of a sentence which had been proposed by the United
Kingdom in the process of elaboration of the text, whether the parties
agreed to wait for the expiration of the term provided for in the interim
agreement without entering into further negotiations. The deleted sentence,
which would have appeared in paragraph 7 of the 1973 Exchange of Notes,
read: "The Governments will reconsider the position before that term expires
unless they have in the meantime agreed to a settlement of the substantive
dispute."
77. The Court cannot accept the view that the deletion of this sentence
which concerned renegotiation of the interim regime warrants the in-[p
33]ference that the common intention of the Parties was to be released from
negotiating in respect of the basic dispute over Iceland's extension to a
50-mile limit throughout the whole period covered by the interim agreement.
Such an intention would not correspond to the attitude taken up by the
Applicant in these proceedings, in which it has asked the Court to adjudge
and declare that the Parties are under a duty to negotiate a regime for the
fisheries in the area. Nor would an interpretation of this kind, in relation
to Iceland's intention, correspond to the clearly stated policy of the
Icelandic authorities to continue negotiations on the basic problems
relating to the dispute, as emphasized by paragraph 3 of the Althing
Resolution of 15 February 1972, referred to earlier, which reads: "That
efforts to reach a solution of the problems connected with the extension be
continued through discussions with the Governments of the United Kingdom and
the Federal Republic of Germany." Taking into account that the interim
agreement contains a definite date for its expira-tion, and in the light of
what has been stated in paragraph 75 above, it would seem difficult to
attribute to the Parties an intention to wait for that date and for the
reactivation of the dispute, with all the possible friction it might
engender, before one of them might require the other to attempt a peaceful
settlement through negotiations. At the same time, the Court must add that
its Judgment obviously cannot preclude the Parties from benefiting from any
subsequent developments in the pertinent rules of international law.
78. In the fresh negotiations which are to take place on the basis of the
present Judgment, the Parties will have the benefit of the above appraisal
of their respective rights, and of certain guidelines defining their scope.
The task before them will be to conduct their negotiations on the basis that
each must in good faith pay reasonable regard to the legal rights of the
other in the waters around Iceland outside the 12-mile limit, thus bringing
about an equitable apportionment of the fishing resources based on the facts
of the particular situation, and having regard to the interests of other
States which have established fishing rights in the area. It is not a matter
of finding simply an equitable solution, but an equitable solution derived
from the applicable law. As the Court stated in the North Sea Continental
Shelf cases:
". . . it is not a question of applying equity simply as a matter of
abstract justice, but of applying a rule of law which itself requires the
application of equitable principles" (I.C.J. Reports 1969, p. 47, para. 85).
***
79. For these reasons,
The Court,
by ten votes to four,
(1) finds that the Regulations concerning the Fishery Limits off Iceland
(Reglugerb urn fiskveibilandhelgi Islands) promulgated by the Government of
Iceland on 14 July 1972 and constituting a unilateral extension of the
exclusive fishing rights of Iceland to 50 nautical miles from the baselines
specified therein are not opposable to the Government of the United Kingdom;
(2) finds that, in consequence, the Government of Iceland is not entitled
unilaterally to exclude United Kingdom fishing vessels from areas between
the fishery limits agreed to in the Exchange of Notes of 11 March 1961 and
the limits specified in the Icelandic Regulations of 14 July 1972, or
unilaterally to impose restrictions on the activities of those vessels in
such areas;
by ten votes to four,
(3) holds that the Government of Iceland and the Government of the United
Kingdom are under mutual obligations to undertake negotiations in good
faith for the equitable solution of their differences concerning their
respective fishery rights in the areas specified in subparagraph 2;
(4) holds that in these negotiations the Parties are to take into account,
inter alia:
(a) that in the distribution of the fishing resources in the areas specified
in subparagraph 2 Iceland is entitled to a preferential share to the extent
of the special dependence of its people upon the fisheries in the seas
around its coasts for their livelihood and economic development;
(b) that by reason of its fishing activities in the areas specified in
subparagraph 2, the United Kingdom also has established rights in the
fishery resources of the said areas on which elements of its people depend
for their livelihood and economic well-being;
(c) the obligation to pay due regard to the interests of other States in the
conservation and equitable exploitation of these resources;
(d) that the above-mentioned rights of Iceland and of the United Kingdom
should each be given effect to the extent compatible with the conservation
and development of the fishery resources in the areas specified in
subparagraph 2 and with the interests of other States in their conservation
and equitable exploitation;
(e) their obligation to keep under review those resources and to examine
together, in the light of scientific and other available information, such
measures as may be required for the conser[p35]vation and development, and
equitable exploitation, of those resources, making use of the machinery
established by the North-East Atlantic Fisheries Convention or such other
means as may be agreed upon as a result of international negotiations.
Done in English, and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-fifth day of July, one thousand nine
hundred and seventy-four, 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) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
President Lachs makes the following declaration:
I am in agreement with the reasoning and conclusions of the Court, and since
the Judgment speaks for and stands by itself, I would not feel it
appropriate to make any gloss upon it.
Judge Ignacio-Pinto makes the following declaration:
To my regret, I have been obliged to vote against the Court's Judgment.
However, to my mind my negative vote does not, strictly speaking, signify
opposition, since in a different context I would certainly have voted in
favour of the process which the Court considered it should follow to arrive
at its decision. In my view that decision is devoted to fixing the
conditions for exercise of preferential rights, for conservation of fish
species, and historic rights, rather than to responding to the primary claim
of the Applicant, which is for a statement of the law on a specific point.
I would have all the more willingly endorsed the concept of preferential
rights inasmuch as the Court has merely followed its own decision in the
Fisheries case.
It should be observed that the Applicant has nowhere sought a decision from
the Court on a dispute between itself and Iceland on the subject of the
preferential rights of the coastal State, the conservation of fish species,
or historic rightsthis is apparent throughout the elaborate [p 36]
reasoning of the Judgment. It is obvious that considerations relating to
these various points, dealt with at length in the Judgment, are not subject
to any dispute between the Parties. There is no doubt that, after setting
out the facts and the grounds relied on in support of its case, the
Applicant has asked the Court only for a decision on the dispute between
itself and Iceland, and to adjudge and declare:
". . . 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" (I.C.J. Reports 1973, p. 5, para. 8 (a)).
This is clear and precise, and all the other points in the submissions are
only ancillary or consequential to this primary claim. But in response to
this basic claim, which was extensively argued by the Applicant both in its
Memorial and orally, and which was retained in its final submissions, the
Court, by means of a line of reasoning which it has endeavoured at some
length to justify, has finally failed to give any positive answer.
The Court has deliberately evaded the question which was placed squarely
before it in this case, namely whether Iceland's claims are in accordance
with the rules of international law. Having put this question on one side,
it constructs a whole system of reasoning in order ultimately to declare
that the Regulations issued by the Government of Iceland on 14 July 1972 and
"constituting a unilateral extension of the exclusive fishing rights of
Iceland to 50 nautical miles from the baselines specified therein are not
opposable to the Government of the United Kingdom".
In my view, the whole problem turns on this, since this claim is based upon
facts which, at least under present-day law and in the practice of the
majority of States, are flagrant violations of existing international
conventions. It should be noted that Iceland does not deny them. Now the
facts complained of are evident, they undoubtedly relate to the treaty which
binds the States which are Parties, for the Exchange of Notes of 11 March
1961 amounts to such an instrument. For the Court to consider, after having
dealt with the Applicant's fundamental claim in relation to international
law, that account should be taken of Iceland's exceptional situation and the
vital interests of its population, with a view to drawing inspiration from
equity and to devising a solution for the dispute, would have been the
normal course to be followed, the more so since the Applicant supports it in
its final submissions. But it cannot be admitted that because of its special
situation Iceland can ipso facto be exempted from the obligation to respect
the international commitments into which it has entered. By not giving an
unequivocal answer on that principal claim, the Court has failed to perform
the act of justice requested of it.
For what is one to say of the actions and behaviour of Iceland which have
resulted in its being called upon to appear before the Court? Its [p 37]
refusal to respect the commitment it accepted in the Exchange of Notes of 11
March 1961, to refer to the International Court of Justice any dispute which
might arise on an extension of its exclusive fisheries zone, which was in
fact foreseen by the Parties, beyond 12 nautical miles, is not this
unjustified refusal a breach of international law?
In the same way, whencontrary to what is generally recognized by the
majority of States in the 1958 Geneva Convention, in Article 2, where it is
clearly specified that there is a zone of high seas which is res
communisIceland unilaterally decides, by means of its Regulations of 14
July 1972, to extend its exclusive jurisdiction from 12 to 50 nautical miles
from the baselines, does it not in this way also commit a breach of
international law? Thus the Court would in no way be open to criticism if
it upheld the claim as well founded.
For my part, I believe that the Court would certainly have strengthened its
judicial authority if it had given a positive reply to the claim laid before
it by the United Kingdom, instead of embarking on the construction of a
thesis on preferential rights, zones of conservation of fish species, or
historic rights, on which there has never been any dispute, nor even the
slightest shadow of a controversy on the part either of the Applicant or of
the Respondent.
Furthermore, it causes me some concern also that the majority of the Court
seems to have adopted the position which is apparent in the present Judgment
with the intention of pointing the way for the participants in the
Conference on the Law of the Sea now sitting in Caracas.
The Court here gives the impression of being anxious to indicate the
principles on the basis of which it would be desirable that a general
international regulation of rights of fishing should be adopted.
I do not discount the value of the reasons which guided the thinking of the
majority of the Court, and the Court was right to take account of the
special situation of Iceland and its inhabitants, which is deserving of
being treated with special concern. In this connection, the same treatment
should be contemplated for all developing countries in the same position,
which cherish the hope of seeing all these fisheries problems settled, since
it is at present such countries which suffer from the anarchy and lack of
organization of international fishing. But that is not the question which
has been laid before the Court, and the reply given can only be described as
evasive.
In taking this viewpoint I am not unaware of the risk that I may be accused
of not being in tune with the modern trend for the Court to arrogate a
creative power which does not pertain to it under either the United Nations
Charter or its Statute. Perhaps some might even say that the classic
conception of international law to which I declare allegiance is out-dated;
but for myself, I do not fear to continue to respect the classic norms of
that law. Perhaps from the Third Conference on the Law of the Sea some
positive principles accepted by all States will emerge. I hope that this
will be so, and shall be the first to applaudand furthermore I shall be
pleased to see the good use to which they can be put, in [p 38] particular
for the benefit of the developing countries. But since I am above all
faithful to judicial practice, I continue fervently to urge the need for the
Court to confine itself to its obligation to state the law as it is at
present in relation to the facts of the case brought before it.
I consider it entirely proper that, in international law as in every other
system of law, the existing law should be questioned from time to time this
is the surest way of furthering its progressive developmentbut it cannot be
concluded from this that the Court should, for this reason and on the
occasion of the present dispute between Iceland and the United Kingdom,
emerge as the begetter of certain ideas which are more and more current
today, and are even shared by a respectable number of States, with regard to
the law of the sea, and which are in the minds, it would seem, of most of
those attending the Conference now sitting in Caracas. It is advisable, in
my opinion, to avoid entering upon anything which would anticipate a
settlement of problems of the kind implicit in preferential and other
rights.
To conclude this declaration, I think I may draw inspiration from the
conclusion expressed by the Deputy Secretary of the United Nations Sea-Bed
Committee, Mr. Jean-Pierre Levy, in the hope that the idea it expresses may
be an inspiration to States, and to Iceland in particular which, while
refraining from following the course of law, prefers to await from political
gatherings a justification of its rights.
I agree with Mr. Jean-Pierre Levy in thinking that:
" it is to be hoped that States will make use of the next four or five years
to endeavour to prove to themselves and particularly to their nationals that
the general interest of the international community and the well-being of
the peoples of the world can be preserved by moderation, mutual
understanding, and the spirit of compromise; only these will enable the
Third Conference on the Law of the Sea to be held and to succeed in
codifying a new legal order for the sea and its resources" ("La troisiθme
Conference sur le droit de la mer", Annuaire franηais de droit
international, 1971, p. 828).
In the expectation of the opening of the new era which is so much hoped for,
I am honoured at finding myself in agreement with certain Members of the
Court like Judges Gros, Petren and Onyeama for whom the golden rule for the
Court is that, in such a case, it should confine itself strictly within the
limits of the jurisdiction conferred on it.
Judge Nagendra Singh makes the following declaration:
There are certain valid reasons which weigh with me to the extent that they
enable me to support the Judgment of the Court in this case and [p 39] hence
I consider them of such importance as to be appropriately emphasized to
convey the true significance of the Judgmentits extent as well as its
depth. These reasons, as well as those aspects of the Judgment which have
that importance from my viewpoint are briefly stated as follows:
I
While basing its findings on the bilateral law, namely the Exchange of Notes
of 1961 which has primacy in this case, the Court has pronounced upon (b)
and (c) 1 the second and third submissions of the Applicant's Memorial on
the merits, in terms of non-opposability to the United Kingdom. This
suffices for the purpose of that part of the Judgment and is in accordance
with the statement made by counsel FN2 for the Applicant at the hearings, to
the effect that the second and' third submissions are separable from the
first and it is open to the Court not to adjudicate on the first submission
(a) FN1 which relates to the general law.
---------------------------------------------------------------------------------------------------------------------
FN1
See paras. 11 and 12 of the Judgment for the text of the submissions.
FN2 Hearing of 29 March 1974, CR 74/3, p. 23.
---------------------------------------------------------------------------------------------------------------------
In the special circumstances of this case the Court has, therefore, not
proceeded to pronounce upon the first submission (a) of the Applicant, which
requests the Court to declare that Iceland's extension of its exclusive
fishery limit to 50 nautical miles is invalid being without foundation in
international law which amounts to asking the Court to find that such
extension is ipso jure, illegal and invalid erga omnes. Having refrained
from pronouncing on that aspect it was, consequently, unnecessary for the
Court to pronounce on the Applicant's legal contention in support of its
first submission, namely, that a customary rule of international law exists
today imposing a general prohibition on extension by States of their
fisheries jurisdiction beyond 12 miles.
There is still a lingering feature of development associated with the
general law. The rules of customary maritime law relating to the limit of
fisheries jurisdiction have still been evolving and confronted by a widely
divergent and, discordant State practice, have not so far crystallized.
Again, the conventional maritime law though substantially codified by the
Geneva Conferences on the Law of the Sea of 1958 and 1960 has certain
aspects admittedly left over to be settled and these now constitute, among
others, the subject of subsequent efforts at codification. The question of
the extent of fisheries jurisdiction which is still one of the unsettled
aspects could not, therefore, be settled by the Court since it could not
"render judgment sub specie legis ferendae, or anticipate the law before the
legislator has laid it down". [p 40]
This is of importance to me but I do not have to elaborate this point any
further since I have subscribed to the views expressed by my colleagues in
the joint separate opinion of the five Judges wherein this aspect has been
more fully dealt with.
II
The contribution which the Judgment makes towards the development of the Law
of the Sea lies in the recognition which it gives to the concept of
preferential rights of a coastal State in the fisheries of the adjacent
waters particularly if that State is in a special situation with its
population dependent on those fisheries. Moreover, the Court proceeds
further to recognize that the law pertaining to fisheries must accept the
primacy for the need of conservation based on scientific data. This aspect
has been properly emphasized to the extent needed to establish that the
exercise of preferential rights of the coastal State as well as the historic
rights of other States dependent on the same fishing grounds, have all to be
subject to the over-riding consideration of proper conservation of the
fishery resources for the benefit of all concerned. This conclusion would
appear warranted if this vital source of man's nutrition is to be preserved
and developed for the community.
In addition there has always been the need for accepting clearly in maritime
matters the existence of the duty to "have reasonable regard to the
interests of other States"a principle enshrined in Article 2 of the Geneva
Convention of the High Seas 1958 which applies even to the four freedoms of
the seas and has weighed with the Court in this case. Thus the rights of the
coastal State which must have preference over the rights of other States in
the coastal fisheries of the adjacent waters have nevertheless to be
exercised with due regard to the rights of other States and the claims and
counter-claims in this respect have to be resolved on the basis of
considerations of equity. There is, as yet, no specific conventional law
governing this aspect and it is the evolution of customary law which has
furnished the basis of the Court's Judgment in this case.
III
The Court, as the principal judicial organ of the United Nations, taking
into consideration the special field in which it operates, has a distinct
role to play in the administration of justice. In that context the resolving
of a dispute brought before it by sovereign States constitutes an element
which the Court ought not to ignore in its adjudicatory function. This
aspect relating to the settlement of a dispute has been emphasized in more
than one article of the Charter of the United Nations. There is Article 2,
paragraph 3, as well as Article 1, which both use words like "adjustment [p
41] or settlement of international disputes or situations", whereas Article
33 directs Members to "seek a solution" of their disputes by peaceful means.
Furthermore, this approach is very much in accordance with the
jurisprudence of the Court. On 19 August 1929 the Permanent Court of
International Justice in its Order in the case of the Free Zones of Upper
Savoy and the District of Gex (P.C.I.J., Series A, No. 22, at p. 13)
observed that the judicial settlement of international disputes is simply
an alternative to the direct and friendly settlement of such disputes
between the parties. Thus if negotiations become necessary in the special
circumstances of a particular case the Court ought not to hesitate to
direct negotiations in the best interests of resolving the dispute. Defining
the content of the obligation to negotiate, the Permanent Court in its
Advisory Opinion of 1931 in the case of Railway Traffic between Lithuania
and Poland (P.C.I. J., Series A/B, No. 42, 1931, at p. 116) observed that
the obligation was "not only to enter into negotiations, but also to pursue
them as far as possible, with a view to concluding agreements" even if "an
obligation to negotiate does not imply an obligation to reach an agreement".
This does clearly imply that everything possible should be done not only to
promote but also to help to conclude successfully the process of
negotiations once directed for the settlement of a dispute. In addition we
have also the North Sea Continental Shelf cases (I.C.J. Reports 1969) citing
Article 33 of the United Nations Charter and where the Parties were to
negotiate in good faith on the basis of the Judgment to resolve the dispute.
Though it would not only be improper but quite out of the question for a
court of law to direct negotiations in every case or even to contemplate
such a step when the circumstances did not justify the same, it would appear
that in this particular case negotiations appear necessary and flow from the
nature of the dispute, which is confined to the same fishing grounds and
relates to issues and problems which best lend themselves to settlement by
negotiation. Again, negotiations are also indicated by the nature of the law
which has to be applied, whether it be the treaty of 1961 with its six
months' notice in the compromissory clause provided ostensibly for
negotiations or whether it be reliance on considerations of equity. The
Court has, therefore, answered the last submission ((e) FN1re-lettered as
(d) of the Applicant's Memorial on the merits) in the affirmative and
accepted that negotiations furnished the correct answer to the problem posed
by the need for equitably reconciling the historic right of the Applicant
based on traditional fishing with the preferential rights of Iceland as a
coastal State in a situation of special dependence on its fisheries. The
Judgment of the Court, in asking the Parties to negotiate a [p 42]
settlement, has thus emphasized the importance of resolving the dispute in
the adjudication of the case.
---------------------------------------------------------------------------------------------------------------------
FN1
See paras. 11 and 12 of the Judgment for the text of the submissions.
---------------------------------------------------------------------------------------------------------------------
No court of law and particularly not the International Court of Justice
could ever be said to derogate from its function when it gives due
importance to the settlement of a dispute which is the ultimate objective
of all adjudication as well as of the United Nations Charter and the Court,
as its organ, could hardly afford to ignore this aspect. A tribunal, while
discharging its function in that manner, would appear to be adjudicating in
the larger interest and ceasing to be narrow and restrictive in its
approach.
Thus, the interim agreement of 1973 entered into by the contesting Parties
with full reservations as to their respective rights and which helped to
avoid intensification of the dispute could never prevent the Court from
pronouncing on the United Kingdom submissions. To decide otherwise would
have meant imposing a penalty on those who negotiate an interim agreement to
avoid friction as a preliminary to the settlement of a dispute.
Again, when confronted with the problem of its own competence in dealing
with that aspect of the dispute which relates to the need for conservation
and the exercise of preferential rights with due respect for historic
rights, the Court has rightly regarded those aspects to be an integral part
of the dispute. Surely, the dispute before the Court has to be considered
in all its aspects if it is to be properly resolved and effectively
adjudicated upon. This must be so if it is not part justice but the whole
justice which a tribunal ought always to have in view. It could, therefore,
be said that it was in the overall interests of settlement of the dispute
that certain parts of it which were inseparably linked to the core of the
conflict were not separated in this case to be left unpronounced upon. The
Court has, of course, to be mindful of the limitations that result from the
principle of consent as the basis of international obligations, which also
governs its own competence to entertain a dispute. However, this could
hardly be taken to mean that a tribunal constituted as a regular court of
law when entrusted with the determination of a dispute by the willing
consent of the parties should in any way fall short of fully and effectively
discharging its obligations. It would be somewhat disquieting if the Court
were itself to adopt either too narrow an approach or too restricted an
interpretation of those very words which confer jurisdiction on the Court
such as in this case "the extension of fisheries jurisdiction around
Iceland" occurring in the compromissory clause of the Exchange of Notes of
1961. Those words could not be held to confine the competence conferred on
the Court to the sole question of the conformity or otherwise of Iceland's
extension of its fishery limits with existing legal rules. The Court,
therefore, need not lose sight of the consideration relating to the
settlement of the dispute while remaining strictly within the framework of
the law which it administers and adhering always to the procedures which it
must follow. [p 43]
IV
For purposes of administering the law of the sea and for proper
understanding of matters pertaining to fisheries as well as to appreciate
the facts of this case, it is of some importance to know the precise content
of the expression "fisheries jurisdiction" and for what it stands and means.
The concept of fisheries jurisdiction does cover aspects such as
enforcement of conservation measures, exercise of preferential rights and
respect for historic rights since each one may involve an element of
jurisdiction to implement them. Even the reference to "extension" in
relation to fisheries jurisdiction which occurs in the compromissory clause
of the 1961 treaty could not be confined to mean merely the extension of a
geographical boundary line or limit since such an extension would be
meaningless without a jurisdictional aspect which constitutes, as it were,
its juridical content. It is significant, therefore, that the preamble of
the Truman Proclamation of 1945 respecting United States coastal fisheries
refers to a "jurisdictional" basis for implementing conservation measures in
the adjacent sea since such measures have to be enforced like any other
regulations in relation to a particular area. This further supports the
Court's conclusion that it had jurisdiction to deal with aspects relating to
conservation and preferential rights since the 1961 treaty by the use of the
words "extension of fisheries jurisdiction" must be deemed to have covered
those aspects.
V
Another aspect of the Judgment which has importance from my viewpoint is
that it does not "preclude the Parties from benefiting from any subsequent
developments in the pertinent rules of international law" (para. 77). The
adjudicatory function of the Court must necessarily be confined to the case
before it. No tribunal could take notice of future events, contingencies or
situations that may arise consequent on the holding or withholding of
negotiations or otherwise even by way of a further exercise of jurisdiction.
Thus, a possibility or even a probability of changes in law or situations in
the future could not prevent the Court from rendering Judgment today. [p 44]
Judges Forster, Bengzon, Jimenez de Arechaga, Nagendra Singh and Ruda append
a joint separate opinion to the Judgment of the Court; Judges Dillard, de
Castro and Sir Humphrey Waldock append separate opinions to the Judgment of
the Court.
Judges Gros, Petren and Onyeama append dissenting opinions to the Judgment
of the Court.
(Initialled) M.L.
(Initialled) S.A.
[p 45]
JOINT SEPARATE OPINION OF JUDGES FORSTER, BENGZON, JIMENEZ DE ARECHAGA,
NAGENDRA SINGH AND RUDA
1. What has made it possible for us to concur in the reasoning of the Court
and to subscribe to its decision is that, while the Judgment declares the
Icelandic extension of its fisheries jurisdiction non-opposable to the
Applicant's historic rights, it does not declare, as requested by the
Applicant, that such an extension is without foundation in international law
and invalid erga omnes. In refraining from pronouncing upon the Applicant's
first submission and in reaching instead a decision of non-opposability to
the United Kingdom of the Icelandic regulations, the Judgment is based on
legal grounds which are specifically confined to the circumstances and
special characteristics of the present case and is not based on the
Applicant's main legal contention, namely, that a customary rule of
international law exists today imposing a general prohibition on extensions
by States of their exclusive fisheries jurisdiction beyond 12 nautical miles
from their baselines.
2. In our view, to reach the conclusion that there is at present a general
rule of customary law establishing for coastal States an obligatory maximum
fishery limit of 12 miles would not have been well founded. There is not
today an international usage to that effect sufficiently wide-spread and
uniform as to constitute, within the meaning of Article 38, paragraph 1 (b),
of the Court's Statute, "evidence of a general practice accepted as law".
It is an indisputable fact that it has not been possible for States, despite
the efforts made at successive codification conferences on the law of the
sea, to reach an agreement on a rule of conventional law fixing the maximum
breadth of the territorial sea nor the maximum distance seaward beyond
which States are not allowed to extend unilaterally their fisheries
jurisdiction. The deliberations of the 1958 Geneva Conference on the Law of
the Sea revealed this failure which has been recorded in its resolution VIII
of 27 April 1958. The General Assembly of the United Nations consequently
laid down that these two subjects would constitute the agenda for the 1960
Conference on the Law of the Sea, which also failed to reach agreement on a
text. The establishment of a rule on these two questions thus remains among
the topics on the agenda of the current Third United Nations Conference on
the Law of the Sea.
4. The law with respect to free-swimming fishery resources has evolved [p
46] with complete independence from the question of the continental shelf:
the two subjects, divorced at the 1958 Conference, have remained separate.
It follows that while the provisions of the Continental Shelf Convention
(or the principles it established as customary law) cannot afford per se a
legal basis to a claim with respect to free-swimming fish in the waters
above the shelf, these provisions cannot either be applied a contrario in
order to rule as unlawful a claim to exclusive fisheries in the superjacent
waters. In order to prove the lack of relationship between the two
questions it is sufficient to recall that the Applicant itself has claimed
since 1964 exclusive rights over free-swimming fishery resources in waters
beyond and adjacent to its own territorial sea, that is to say in waters
which, under the terms of Article 1 of the Continental Shelf Convention, are
superjacent to part of its continental shelf.
5. It has also been contended that a 12-mile maximum fishery limit results
by implication from the fact that Article 24 of the Territorial Sea
Convention establishes a maximum 12-mile limit for the contiguous zone.
However, the contiguous zone is also entirely unrelated to fishery
questions: fishing does not find a place among the purposes of the zone
referred to in that Article. It does not seem possible therefore to infer
from this provision a restriction with respect to fishery limits. Moreover,
when the contiguous zone concept and its limits were adopted at the Geneva
Conference no-one understood at the time that by agreeing to this
comparatively secondary provision, the Conference was deciding by
implication the two basic questions which had been left in suspense and had
in the end to be referred to a second Conference: the maximum breadth of the
territorial sea and the maximum fishery jurisdiction of the coastal State.
The Conference recorded in its resolution No. VIII that these two questions
had remained unsettled. In the face of that decision, it does not seem
plausible to contend now that the Conference in adopting Article 24 on the
Contiguous Zone implied, even inadvertently, a maximum limit for fishery
jurisdiction or for the territorial sea.
6. No maximum rule on fishery limits, having the force of international
custom, appears to have as yet emerged to be finally established. The
Applicant has however contended that such a rule did crystallize around the
proposal which failed to be adopted by one vote at the 1960 Con-ference on
the Law of the Sea. It is true that a general practice has developed around
that proposal and has in fact amended the 1958 Convention praeter legem: an
exclusive fishery zone beyond the territorial sea has become an established
feature of contemporary international law. It is also true that the joint
formula voted at that Conference provided for a 6 + 6 formula, i.e., for an
exclusive 12-mile fishery zone. It is however necessary to make a
distinction between the two meanings which may be [p 47] ascribed to that
reference to 12 miles:
(a) the 12-mile extension has now obtained recognition to the point that
even distant-water fishing States no longer object to a coastal State
extending its exclusive fisheries jurisdiction zone to 12 miles; or, on the
other hand,
(b) the 12-mile rule has come to mean that States cannot validly extend
their exclusive fishery zones beyond that limit.
7. In our view, the concept of the fishery zone and the 12-mile limit became
established with the meaning indicated in 6 (a) above when, in the middle
sixties, distant-water fishing States ceased to challenge the exclusive
fishery zone of 12 miles established by a number of coastal States. It is
for this reason that it may be said, as the Judgment does, that the 12-mile
limit "appears now to be generally accepted".
8. However, to recognize the possibility that States might claim without
risk of challenge or objection an exclusive fisheries zone of 12 miles
cannot by any sense of logic necessarily lead to the conclusion contended
for by the Applicant, namely, that such a figure constitutes in the present
state of maritime international law an obligatory maximum limit and that a
State going beyond such a limit commits an unlawful act, which is invalid
erga omnes. This contention of the Applicant is an answer to a different
question, which must be examined separately.
9. That question is as follows: is there an existing rule of customary law
which forbids States to extend their fisheries jurisdiction beyond 12 miles?
In order to reply in the affirmative to this question, it would be necessary
to be satisfied that such a rule meets the conditions required for the birth
of an international custom.
10. It is a fact that a continually increasing number of States have made
claims to extend and have effectively extended their fisheries jurisdiction
beyond 12 miles. While such a trend was initiated in Latin America, it has
been lately followed not only in that part of the world, but in other
regions as well. A number of countries in Africa and Asia have also adopted
a similar action. The total number adopting that position may now be
estimated to be between 30 to 35 coastal States, depending on the
interpretation to be given to certain national laws or decrees.
11. While those claims have generally given rise to protests or objections
by a number of important maritime and distant-water fishing States, and in
this respect they cannot be described as being "generally accepted", a
majority of States have not filed similar protests, and quite a number have,
on the contrary, made public pronouncements or formal proposals which would
appear to be inconsistent with the making of such protests. [p 48]
12. In this respect, attention must be drawn to declarations made, or
proposals filed by a number of States in relation to or in preparation for
the Third Conference on the Law of the Sea. It is true that, as the Court's
Judgment indicates, the proposals and preparatory documents made in the
aforesaid context are de legeferenda. However, it is not possible in our
view to brush aside entirely these pronouncements of States and consider
them devoid of all legal significance. If the law relating to fisheries
constituted a subject on which there were clear indications of what
precisely is the rule of international law in existence, it may then have
been possible to disregard altogether the legal significance of certain
proposals, declarations or statements which advocate changes or improvements
in a system of law which is considered to be unjust or inadequate. But this
is not the situation. There is at the moment great uncertainty as to the
existing customary law on account of the conflicting and discordant practice
of States. Once the uncertainty of such a practice is admitted, the impact
of the aforesaid official pronouncements, declarations and propo-sals must
undoubtedly have an unsettling effect on the crystallization of a still
evolving customary law on the subject. Furthermore, the law on fishery
limits has always been and must by its very essence be a compromise between
the claims and counter-claims of coastal and distant-water fishing States.
On a subject where practice is contradictory and lacks precision, is it
possible and reasonable to discard entirely as irrelevant the evidence of
what States are prepared to claim and to acquiesce in, as gathered from the
positions taken by them in view of or in preparation for a conference for
the codification and progressive development of the law on the subject?
13. The least that can be said, therefore, is that such declarations and
statements and the written proposals submitted by representatives of States
are of significance to determine the views of those States as to the law on
fisheries jurisdiction and their opinio iuris on a subject regulated by
customary law. A number of pronouncements of States in the aforesaid
circumstances reveals that while the fundamental principle of freedom of
fishing in the high seas is not challenged as such, a large number of
coastal States contest or deny that such a principle applies automatically
and without exception to adjacent waters in all parts of the world as soon
as the 12-mile limit is reached. Such an attitude is not only based on the
clear consideration that two conferences have failed to agree on a maximum
limit but also because of additional factors which have emerged in the
intervening period between the Second and Third United Nations Conferences.
For example, it is contended that the 12-mile fishery limit ensures, in
fact, a clear privilege and a distinct ad-vantage to the few States equipped
to undertake distant-water fishing, thus widening the gulf between developed
and developing States; a second fact is that technological advances and the
pressure on food supplies resulting from the population explosion have
caused a serious danger of depletion of living resources in the vicinity of
the coasts of [p 49] many countries. In this respect, economic studies on
fisheries have shown that the principle of open and unrestricted access to
coastal waters inevitably results in physical and economic waste, since
there is no incentive for restraint in the interest of future returns:
anything left in adjacent waters for tomorrow may be taken by others today.
While the better-equipped States can freely move their fleets to other
grounds as soon as the fishing operations become uneconomical, the coastal
States, with less mobile fleets, maintain the greatest interest in ensuring
that the resources near their own coasts are not depleted.
14. While granting that proposals and preparatory documents are de lege
ferenda and made with the purpose of reaching future agreements on the basis
of concessions and compromise, the following inferences could, however, be
legitimately drawn from their existence:
(a) States submitting proposals for a 200-mile economic zone, for instance,
which includes control and regulation of fishery resources in that area,
would be in a somewhat inconsistent position if they opposed or protested
against claims of other States for a similar extension. Such would be the
case, in particular, of those States that have, in the Council of Ministers
of the Organization of African Unity, voted in favour of the declaration on
the Issues of the Law of the Sea, Article 6 of which says:
". . . that the African States recognize the right of each coastal State to
establish an exclusive economic zone beyond their territorial seas whose
limits shall not exceed 200 nautical miles, measured from the baselines
establishing their territorial sea".
Another instance is that of the People's Republic of China. In the joint
communique of establishment of diplomatic relations with Peru of 2 November
1971, the People's Republic of China recognized "the sovereignty of Peru
over the maritime zone adjacent to her coasts within the limits of 200
nautical miles". The same recognition was expressed in a similar communique
with Argentina on 16 February 1972.
(b) it would not seem justified to count States which have agreed to or made
such declarations and proposals as figuring in the group of States
concurring in the establishment of an alleged practice in favour of a
12-mile maximum obligatory limit.
15. If, to the 30 to 35 States which have already extended their fisheries
jurisdiction beyond 12 miles, there is added the further number of 20 to 25
States which have taken the attitudes described in the preceding paragraph,
the conclusion would be that, today, more than half the maritime [p 50]
States are on record as not supporting in fact and by their conduct the
alleged maximum obligatory 12-mile rule. In these circumstances, the limited
State practice confined to some 24 maritime countries cited by the Applicant
in favour of such a rule cannot be considered to meet the requirement of
generality demanded by Article 38 of the Court's Statute.
16. Another essential requirement for the practice of States to acquire the
status of customary law is that such State practice must be common,
consistent and concordant. Thus contradiction in the practice of States or
inconsistent conduct, particularly emanating from these very States which
are said to be following or establishing the custom, would prevent the
emergence of a rule of customary law.
17. Certain States, whose conduct is invoked as showing the existence of the
12-mile maximum rule, have not hesitated to protect their own fishing
interests beyond that limit, when they felt that it was required for the
benefit of their nationals by the existence of important fisheries in waters
adjacent to their coasts. Various methods have been utilized to achieve that
result, but the variety of methods should not obscure the essential fact. It
could be observed for instance, that the United States and the USSR have
lately carried out this form of protection not unilaterally but through
bilateral agreements inter se and with other States FN1. However, these
Powers began by adopting unilateral measures which created for the States
whose nationals were fishing in adjacent waters the need to enter into
fishery agreements if they wished that their nationals could continue their
fishing activities in those grounds. Once the need for an agreement was thus
created, it was not difficult for these Powers, because of their
possibilities in offering various countervailing advantages, to reach
agreements which assured them of a preferential or even an exclusive
position in those fishing grounds in which they had special interests in
areas adjacent to their shores well beyond the 12 miles. This [p 51]
demonstrates the fact that even for States which cannot claim a special
dependence on their fisheries for their livelihood or economic development,
12 miles may not be sufficient. It would not seem fair or equitable to
postulate on the basis of such divergent conduct a rule of law which would
deny the power to protect much more vital fishing interests to countries
lacking the same possibilities of offering attractive terms by way of
compensation for abstaining from fishing in their adjacent waters.
---------------------------------------------------------------------------------------------------------------------
FN1
International Convention (with annex and Protocol) for the High Seas
Fisheries of the North Pacific Ocean signed on 9 May 1952 by the United
States of America, Canada and Japan (United Nations Treaty Series, Vol. 205,
p. 65); Convention concerning the High Seas Fisheries of the North-West
Pacific Ocean signed on 14 May 1956 by Japan and the Union of Soviet
Socialist Republics (AJIL, 1959, p. 763); Agreement between the Government
of the United States of America and the Government of the Union of Soviet
Socialist Republics on Certain Fishery Problems in the North-Eastern Part of
the Pacific Ocean off the Coast of the United Stales of America, signed on
13February 1967 (United Nations Treaty Series, Vol. 688, p. 157); Agreement
between the Government of the United States of America and the Government of
the Union of Soviet Socialist Republics on Certain Fishery Problems on the
High Seas in the Western Areas of the Middle Atlantic Ocean, signed on 25
November 1967 (United Nations Treaty Series, Vol. 701, p. 162); Agreements
effected by Exchange of Notes signed on 23 December 1968 between the United
States and Japan on Certain Fisheries off the United States Coast and Salmon
Fisheries (TIAS of the United States, No. 6600).
---------------------------------------------------------------------------------------------------------------------
18. The practice of France offers another interesting example with respect
to the question of uniformity of custom. France extended its fishing limits,
in 1972, to 80 miles in the French Guiana. Law No. 72-620 of 5 July 1972
established this zone of 80 miles "with a view to ensure the conservation of
biological resources". However, Article 2 laid down:
"In that part of the zone defined in Article 1 which extends beyond
territorial waters, measures shall be taken as needed, in accordance with
conditions laid down by decree, for the purpose of limiting the fishing of
the various species of marine animal. The application of these measures to
the vessels of foreign States shall be carried out with due regard for the
geographical situation of those States and the fishing habits of their
nationals.
In the same part of the zone, fishing by the vessels of States not
authorizing fishing by French vessels in comparable circumstances may be
prohibited by decree."
Thus France is reserving its right to forbid foreign vessels to fish in the
zone between the 12 and 80-mile limit off Guiana, if French vessels are not
authorized to fish in zones beyond 12 miles off the coast adjacent to
another country. It is hardly possible to count France among the States
whose practice invariably supports an alleged 12-mile maximum limit, when it
is reserving the right to forbid foreign fishing outside 12 miles off the
shore of the French Guiana, under certain conditions.
19. Likewise, archipelago States which have claimed or established fishery
limits according to the geographical characteristics of their territories
could hardly be counted as States accepting the existence of a maximum
12-mile obligatory limit. The same observation could be made in regard to
States which have fixed an exclusive fishing zone far beyond the 12-mile
limit off their coasts by establishing "fisheries closing lines" in certain
bays.
20. Consequently, it is not possible to find today in the practice of [p 52]
States what the Court described in the Asylum case as "a constant and
uniform usage, accepted as law" (I.C.J. Reports 1950, p. 277). The alleged
12-mile limit maximum obligatory rule does not fulfil "an indispensable
requirement", namely, "that within the period in question, short though it
might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform"
(North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 43).
21. It could therefore be concluded that there is at present a situation of
uncertainty as to the existence of a customary rule prescribing a maximum
limit of a State's fisheries jurisdiction. No firm rule could be deduced
from State practice as being sufficiently general and uniform to be
accepted as a rule of customary law fixing the maximum extent of the
coastal State's jurisdiction with regard to fisheries. This does not mean
that there is a complete "lacuna" in the law which would authorize any claim
or make it impossible to decide concrete disputes. In the present case, for
instance, we have been able to concur in a Judgment based on two concepts
which we fully support: the preferential rights of the coastal State and the
rights of a State where a part of its population and industry have a long
established economic dependence on the same fishery resources.
22. Admittedly, this situation of legal uncertainty is unsatisfactory and
conducive to international friction and disputes. It is to be hoped however
that the law on the subject may be clarified as a result of the efforts
directed to its codification and progressive development which are now being
made at the Caracas conference.
(Signed) I. Forster.
(Signed) C. Bengzon.
(Signed) E. Jimenez de Arechaga.
(Signed) Nagendra Singh.
(Signed) J. M. Ruda.
[p53]
SEPARATE OPINION OF JUDGE DILLARD
I concur in the Judgment of the Court. I am moved to write a separate
opinion first to elaborate on a few possibly controversial aspects of the
Judgment and second to put it in a broader perspective.
**
The present controversy centres on the familiar problem of conflicting
interests between a coastal State claiming special dependence on "coastal"
fisheries and a "distant-water" State (so called), whose traditional rights
and continuing needs clash with those of the coastal State FN1. But, while
the general problem is a familiar one, the particular problem confronting
the Court was more sharply focussed. It hinged on the meaning to be
attributed to the Exchange of Notes of 11 March 1961, which the Court, [p
54] at the jurisdictional phase of the present proceedings, had definitively
pronounced to be a treaty in force between the Parties. The impact of that
treaty on the nature and scope of the Court's jurisdiction and the rights of
the Parties consequent upon the submissions of the Applicant were by no
means self-revealing. It resulted that the Court could not agree on all
aspects of the case.
---------------------------------------------------------------------------------------------------------------------
FN1
In the waters around Iceland, embraced in an area known technically as ICES
Region Va, the yearly average catch from 1952-1972 was approximately 1
million tons. Iceland, the United Kingdom and the Federal Republic of
Germany take regularly 96 to 97 per cent, of the total catch. The main fish
species are at present cod, capelin, saithe, redfish and haddock. (Until
1966, herring was also important.) The five species represent 94 per cent,
of all species and among the five, cod are the most important.
The life cycle, migratory habits and reproduction factors of all species are
directly connected with the hydrography of the area including the effect of
the warm and saline water of the Gulf Stream.
A graphic account of these matters accompanied by a comprehensive series of
charts, diagrams and statistical data was presented to the Court by Dr. Arno
Meyer, at its public sitting on 28 March 1974. It will appear in the
Pleadings series of the Court dealing with the companion case of the Federal
Republic of Germany.
Detailed statistical data bearing on the economic aspects of the fishery
industry in relation to the three nations, appears in FAO Circular No. 314,
entitled "The Economic and Social Effects of Fishing IndustryA Comparative
Study" (Rome, 1973). Perhaps the most significant single fact disclosed in
the survey is that fish exports represent for Iceland 83 per cent, of all
exports. On the other hand, while Iceland has a significant surplus of local
production over consumption, the other two States depend for fish largely on
non-local sources. The FAO Circular while also revealing employment figures
dealing with the catch and landing of fish, does not purport to include data
on the processing and distributing of fish or in the manufacture of boats,
gear and associated industries. In assessing the scope of conflicting
interests both biological and economic factors are, of course, significant.
Matters of this kind are dealt with extensively in McDougal and Burke, The
Public Order of the Oceans (1962) and D. M. Johnston, The International Law
of Fisheries (1965).
---------------------------------------------------------------------------------------------------------------------
As in other controversies, an appreciation of the factual and legal issues
depends, to some extent, on the general approach which individual judges
bring to bear on their analysis.
In the present case there was little doubt that the attempt by Iceland
unilaterally to exercise exclusive jurisdiction in the disputed waters could
not be opposed to the vessels of the United Kingdom. But the reasons in
support of this conclusion did not reflect a uniform approach and this, in
turn, affected varying interpretations to be given to the requirements of
the treaty and the submissions of the Applicant.
At the outset, I should say that the Judgment of the Court reflects an
approach which I consider soundly grounded. On the other hand, other
approaches were, in my view, by no means lacking in persuasive force. I
shall elaborate briefly on two of them. I shall then turn to the special
problem involved in responding to the Applicant's third and fourth
submissions FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
All of the Applicant's submissions are set out in para. 11 of the Judgment.
---------------------------------------------------------------------------------------------------------------------
***
One such approach would rest on the proposition that Iceland has materially
breached the Exchange of Notes of 1961 which the Court had previously
pronounced to be a treaty in force. The terms and implication of that treaty
admit of no doubt. Even if Iceland, in keeping with her repeatedly announced
aspiration to extend her limitsan aspiration also embedded in the
treatyhad been privileged unilaterally to pronounce an extension, she was
not legally privileged to apply that extension to the vessels of the United
Kingdom except under any one of three contingencies: (a) that the United
Kingdom failed to challenge it or (b) that through negotiations the Parties
reached an agreement or (c) that, if challenged, this Court would have
pronounced on whether the extension was well founded under international
law.
The analysis of the treaty, including the obligation to give six months'
notice of any extension and the obligation to have recourse to the Court,
have been analysed in detail in the Judgment of the Court at the
jurisdictional stage and need not be repeated here FN2. Suffice it to say
that the requirement 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", was no mere severable clause of minor
significance [p 55] but an essential element of the entire agreement, the
importance of which to the United Kingdom was underlined in the
negotiations. And its importance was enhanced by providing an amicable
method of resolving a potential dispute.
---------------------------------------------------------------------------------------------------------------------
FN2
Judgment of 2 February 1973, I.C.J. Reports 1973, pp.8-16.
---------------------------------------------------------------------------------------------------------------------
It hardly needs extensive elaboration to demonstrate that when Iceland
agreed to a specified method whereby an extension of fisheries jurisdiction
by Iceland could be effected vis-ΰ-vis the United Kingdom, her repudiation
of that method constituted a material breach of the treaty. It is almost
axiomatic that when an agreement or other instrument itself provides for the
way in which a given thing is to be done, it must be done in that way or not
at all (I.C.J. Reports 1972, p. 68).
This approach, based on a clear violation of the treaty, would render
irrelevant at the "merit" stage of the dispute any purported theory Iceland
might advance to justify her extension. This is true whether the alleged
justification is keyed to a change in customary law, or to the
"reason-ableness" of the extended limits by reference to the continental
shelf doctrine or any other reason. So long as the treaty is one in force
she is not legally privileged to repudiate it, or to ignore the method
whereby the dispute was to be resolved.
The consequence of this approach would be to allow the Court to adjudge and
declare that under international law Iceland is not privileged to take the
law into her own hands and, so far as the present proceedings are concerned,
she cannot therefore oppose her extension to the United Kingdom.
It might be objected that this approach is based on too narrow a view of the
meaning of the merits as contemplated in the Exchange of Notes of 1961 and
that it does not sufficiently dispose of the controversy. In any event,
while a permissible approach, it was not adopted.
Another approach which the majority of the Court failed to adopt but which
can be rationally defended is of an entirely different order (needless to
suggest those who espouse this approach are not to be charged with my way of
putting the matter). I shall key it to the first submission of the United
Kingdom.
That submission asked the Court to adjudge and declare:
". . . that the claim by Iceland to be entitled to a zone of exclusive
fisheries jurisdiction extending 50 nautical miles from baselines around the
coast of Iceland is without foundation in international law and is invalid".
It will be observed that the sweeping character of this submission differed
from the second and third submissions (which, in effect, the Court responded
to favourably) in that it appeared to require the Court to say that the
proclaimed extension was ipso jure not well founded under international law
erga omnes, whereas the second and third submissions strictly confined the
issue to the opposability of the extension to the United Kingdom. [p 56]
Naturally a pronouncement on the first submission would have automatically
embraced the second and third. Furthermore its terminology corresponded to
the main thrust of the language employed in the negotiations preceding the
adoption of the Exchange of Notes of 1961.
The reluctance to pronounce on this submission may be attributable to three
separate but related considerations. (I cannot speak for my colleagues, I am
only expressing my own assessment.)
First, there was the notion that the state of customary international law in
1972 with respect to unilateral extensions of fishery jurisdiction was so
charged with uncertainty, viewed simply as a kind of "head count" analysis
of State practice, as to make tenuous any definitive pronouncement on this
issue.
Second, there was the deeper notion, keyed to the very nature of the
evolutionary character of customary international law which would deny that
it can or should be captured in the classical formula of repetitive usage
coupled with opinio juris, instead of recognizing that it is the product of
a continuing process of claim and counter-claim in the context of specific
disputes. This concept would render intellectually suspect any definitive
pronouncement on the "12-mile rule" erga omnes, which, because of its too
generalized nature, tended to ignore the many variables that give content to
customary international law and condition its application.
Third, there was the inarticulated notion that because of the Third
Conference on the Law of the Sea it would be imprudent for the Court to
attempt to pronounce on the issue of a "fixed" limit for the extension of
fisheries jurisdiction when the issue was in a state of such acknowledged
political and legal flux.
In stating these notions I do not mean to imply that the Court was inclined
to duck the issue of the validity of Iceland's extension under international
law on the ground that it was too difficult to assess. It only sought a way
of avoiding the pronouncement on the issue in the expansive way required by
the United Kingdom's first submission. In essence it did so by emphasizing
the exclusive character of the claimed extension in defiance of the
established rights of the United Kingdom. This, it held to be contrary to
the over-riding norm of international law enshrined in the qualifying
paragraph of Article 2 of the 1958 Convention on the Law of the Sea, a norm
(or standard) applicable erga omnes FN1. This approach, reflected in the
first and second subparagraphs of the dispositif, made it [p 57] unnecessary
for the Court to pronounce definitively on the so-called 12-mile rule or the
United Kingdom's first submission.
---------------------------------------------------------------------------------------------------------------------
FN1
Article 2 specifies that freedom of the high seas comprises freedom of
fishing, along with freedom of navigation, to lay submarine cables and
pipelines and freedom to fly over the high seas. The qualifying paragraph
stales:
"These freedoms, and others which are recognized by the general principles
of international law, shall be exercised by all States with reasonable
regard to the interests of other States in their exercise of the freedom of
the high seas." (Emphasis added.)
The "norm" expressed by this Article is couched in the language of a
"standard" and not that of a "rule" (in the narrow sense). This means that a
court, or any other decision-maker, has more flexibility in applying it than
if it required an exercise in what is called "jural syntax". The use of
"standards" permits some accommodation of the need for a "general norm"
permitting a tolerable degree of predictability with the need to adjust to
the peculiarities of a special situation, a point to be alluded to later in
this opinion.
On the meaning of "standards" see Pound, "Hierarchy of Sources and Forms in
Different Systems of Law", 7 Tulane Law Review, 475 (1933) and on the use of
standards in "individualizing" the application of law see Pound, An
Introduction to the Philosophy of Law (1953), p. 64.
---------------------------------------------------------------------------------------------------------------------
Having said this, I am impelled to make the following observations.
The contention that by the middle or late 1960s customary international law
had crystallized to a point which set an outer limit of 12 miles for
exclusive fishery zones, while not conclusive, is persuasive. "Head counts"
dealing with "State" practice, vary to some extent owing to different
criteria as to what is exclusive (see FAO Circular No. 127, Rome, August
1971). Clearly the issue is realistically framed not in terms of a set limit
of 12 miles but is keyed rather to the number of States whose territorial
sea and/or exclusive fisheries jurisdiction taken jointly or separately do
not exceed 12 miles. An authoritative analysis of 147 independent countries
shows, as of August 1972, 96 States with 12 miles or less, 19 with limits
ranging from 15 to 200 miles, 4 ambiguous and 28 landlocked. A United States
State Department tabulation of 123 jurisdictions showed 88 per cent, as
having 12 miles or less and 12 per cent, in excess of 12 miles. Other kinds
of enumerations are plentiful. To determine the significance of these and
other tabulations, account would need to be taken of geographical spread,
degrees of maritime interest and many other factors beyond the reach of this
opinion. References in the United Kingdom Memorial on the merits illuminate
some of these factors (paras. 245-257) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 The
warning should be sounded that tabulations of jurisdictional extensions may
be misleading unless an analysis is made of the degree of control the
coastal State purports to exercise. In FAO Circular No. 127 (Rome, 1971) the
criterion of "exclusive" jurisdiction used in its enumeration, includes any
State which reserves to its nationals the right to fish "regardless of
whether the legislation or an agreement to which it is a party permits
fishing by non-nationals subject to certain conditions" (p. 1257). While
this might be an acceptable criterion it may not coincide with that in other
enumerations which would not include agreed upon conservation measures as
constituting an "exclusive" claim.
[p 58]
For some uncertainties in this area, see: Stevenson, "Who is to Control the
Oceans: US Policy and the 1973 Law of the Sea Conference", Vol. VI, The
International Lawyer465-477 (1972). For a recent evaluation of varying South
American claims, see Garcia Amador in 68 American Journal of International
Law, 33-50 (1974).
---------------------------------------------------------------------------------------------------------------------
The argument that classically conceived customary international law supports
an outer limit of 12 miles is fortified by considering the fact, of which
the Court could take judicial notice, that in practice States accord
deference to the 12-mile limit as a matter of legal obligation and not
merely as a matter of reciprocal tolerance or comity. In contrast many
assertions of jurisdiction beyond 12 miles have generated protests from
affected States. Nor can a legitimate inference be drawn from lack of
protests by non-interested States that they necessarily acquiesce in such
unilateral extensions of exclusive jurisdiction FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Logically, it does not follow that because protest shows lack of
acquiescence that lack of protest shows acquiescence. The matter is
discussed in DAmato, The Concept of Custom in International Law (1971), at
pp. 85, 98-102, 195.
---------------------------------------------------------------------------------------------------------------------
The authority of the International Court of Justice is sometimes invoked in
support of a quasi-universalist, as opposed to a consensus theory of
customary international law. Thus in the Anglo-Norwegian Fisheries case the
Court, in discussing the 10-mile rule for bays, stated (I.C.J. Reports 1951,
116 at p. 131):
". . . the Court deems it necessary to point out that although the ten-mile
rule has been adopted by certain States both in their national law and in
their treaties and conventions, and although certain arbitral decisions have
applied it as between these States, other States have adopted a different
limit. Consequently, the ten-mile rule has not acquired the authority of a
general rule of international law."
However, it is worth noting, as the Court pointed out, that Norway had
always opposed any attempt to apply the rule to the Norwegian coast. In
striking contrast, Iceland, while reserving the aspiration to work for an
extension, yet freely acknowledged that she would abide by an outer limit of
12 miles in the Exchange of Notes of 1961. The elucidation of an aspiration
or pronounced intention, is not incompatible with the concession that,
until it is achieved, she is bound by the 12-mile rule.
In fairness to the contentions of Iceland, however, it should be stated that
the analysis above does not do full justice to the arguments which, on
various official occasions, she has advanced. She starts from a different
premise which implicitly denies the premise on which the concept of an
"established" law depends. Because of the wide divergencies in State
practice, she contends, in effect, that there is no law or at best a lacuna
in the Jaw viewed as a body of restraints on State conduct, and therefore [p
59] the law does not prevent the extension by each State of its exclusive
fisheries jurisdiction. She is not claiming an exception to an established
rule but a different kind of rule, namely a permissive rule which, in the
absence of a specific rule to the contrary, permits the coastal State in a
special situation to extend unilaterally its jurisdiction to an extent that
it deems reasonable. She further claims that her extension is "reasonable"
because it coincides generally with the limits of her continental shelf.
It is immediately apparent that the argument above invites an enquiry not
only into the question of the burden of proof but at a deeper theoretical
level into the much discussed question of State autonomy and freedom of
State action and presumptions flowing from such concepts. In turn this goes
back to the controversial Lotus case FN1 and to the manner in which the
International Court of Justice handled the submissions in the
Anglo-Norwegian Fisheries case FN2. It would extend this opinion to
inordinate lengths if these matters were broached in depth. Suffice it to
suggest at present that, while the burden of proof problem may have some
relevance in determining factual and jurisdictional issues, it has little
bearing on the present case. Likewise with the notion of freedom of State
action. Borrowing from Lauterpacht FN3, I would put the matter as follows:
if the exercise of freedom trespasses on the interests of other States then
the issue arises as to its justification. This the Court must determine in
light of the applicable law and it does not advance the enquiry to attempt
to indulge in a presumption or to lean on a burden of proof. It can be
argued, for instance, that Iceland was the "actor" who sought to change the
established law and the burden of proving legal justification rests on her.
Conversely it can be argued that the Applicant was in the role of plaintiff
and should therefore have the burden of establishing the illegality of
Iceland's actions. In either event the Court must determine the rights of
the Parties. Freedom of State action and burdens of proof suggest analogies
to the criminal and civil procedures of some States. Applied to the present
case the analogy is misplaced.
[p 60]
---------------------------------------------------------------------------------------------------------------------
FN1
P.C.I.J., Series A, No. 10 (1927) at p. 18. Cf. Hudson, The Permanent Court
of International Justice (1943), pp. 61 1, 612; D'Amato, op. cit., supra,
pp. 178-189.
FN2 I.C.J. Reports 1951, p. 116. Cf. Waldock, "The Anglo-Norwegian Fisheries
Case", 28 British Year Book of International Law (1951). p. 114 and
Fitzmaurice, "The Law and Procedure of the International Court of Justice,
1951-1954: General Principles and Sources of Law", 30 British Year Book of
International Law (1953), pp. 8-26.
FN3 Lauterpacht, The Development of International Law by the International
Court (1958), p. 361. See also, Fitzmaurice, "The Law and Procedure of the
International Court of Justice, 1951-1954: Questions of Jurisdiction,
Competcnce and Procedure", 34 British Year Book of International Law (1958),
pp. 149-150.
---------------------------------------------------------------------------------------------------------------------
Although, in my view, the 12-mile rule may be grounded on a sounder
theoretical base than an alternative rule grounded on a concept of "no law"
or a "gaping lacuna" in the law FN1, it yet seems to me that the way in
which customary international law evolves, as noted previously, made it
unnecessary for the Court to pronounce on the first submission of the United
Kingdom, namely that Iceland's unilateral extension was without foundation
in international law ipso jure and erga omnes. It sufficed for the disposal
of the case that under international law Iceland's extension could not be
opposed to the Applicant.
---------------------------------------------------------------------------------------------------------------------
FN1 The difficulty with a "no law" concept is that it is apt to imply that
States are free to fix any limit they think reasonable, a notion likely to
generate confusion and breed conflict. Clearly the fact that there are
discordances in the practice of States leading to a large measure of
uncertainty casts doubt on the utility or wisdom of a specific rule, but the
alternative is not to leap into the abyss of a legal vacuum. The better
alternative is to recognize exceptions to the prevalent norm or to
re-classify the norms themselves to take account of special circumstances as
was done in the Anglo-Norwegian Fisheries case. At the theoretical level the
difficulties with a "no law" or "vacuum" concept are profound. The
references cited in the footnotes to the preceding paragraph contain
discussions of some of these difficulties.
Nor is this all. The fact that the States in 1958 or 1960 did not reach a
formal agreement on a specified limit does not signify that they accepted as
an alternative the extreme postulate of State autonomy which would accord
each State the freedom to set such limits as it chose. Indeed the
conferences were based on the opposite assumption, an assumption dictated by
a consciousness of the existence of a community interest hostile to the
notion of uninhibited freedom. It is worth recalling that the 1958
Conference soundly rejected the only proposal coming to a vote on the
question of allowing a coastal State discretion to set any limit it wished
for the territorial sea. While obviously problems of the territorial sea are
not co-extensive with those concerning fisheries, yet the problem of
unilateral extensions may be common to each. In the First Committee the
proposal was rejected by a vote of 4412919 and in the plenary session by
47/21/17. More significant is the fact that no further proposals of the kind
were made. McDougal and Burke, The Public Order of the Oceans (1962), pp.
497-498.
---------------------------------------------------------------------------------------------------------------------
In the course of the oral proceedings a Member of the Court put to counsel
the following question:
"Is it the contention of the Applicant that its first three submissions,
that is to say, submissions (a), (b) and (c), are so connected that it is
necessary for the Court to adjudicate on the first in order to adjudicate on
the second and third?" (CR 74/1, p. 33.)
In replying, counsel, after analysing the purport of all three submissions,
declared:
"It follows when these three submissions are analysed in this way that (a),
(b) and (c) are not so connected that the second and third cannot stand
without the first, and in the view of Her Majesty's Government it is
therefore open to the Court to adjudicate on the second and the third of
those submissions without adjudicating upon [p 61] the first, it being of
course understood and accepted that submissions (b) and (c) are based on
general international law and are of course not confined merely to the
effect of the Exchange of Notes." (CR 74/3, pp. 23, 24; emphasis added.)
The observations of counsel are, of course, in no sense controlling on the
Court. Nevertheless it is not without significance to observe that the
Applicant considered that its first submission was not essential to the
disposition of the case, a position which the Court, in the exercise of its
independent discretion, also assumed.
At a broader policy level it can also be argued that it might have been
undesirable to specify any set limit for the extension of fisheries
jurisdictions erga omnes. It is apparent from even a casual survey of the
massive literature on the subject that there are so many disparities in the
types of fishes and their migratory ranges, to say nothing of wide
variations in the extent of coast lines and continental shelves, that the
wisdom of freezing a limit applicable generally may be questioned. Fish and
especially free swimming fish such as those involved in the present case
are, of course, no respecters of national jurisdictions. The problem may
well call for the application of flexible standards instead of fixed rules.
Charles De Visscher, in his book entitled Theory and Reality in Public
International Law (Corbett Translation, 1'957) addressed himself to the
broad problem involved in the specification of general norms in his
consideration of the Anglo-Norwegian Fisheries case. In the course of his
discussion he quoted with approval (n. 38, p. 154) the following passage
from Brierly, extracted from the latter's 1936 lectures before the Hague
Academy of International Law:
"Uniformity is good only when it is convenient, that is to say when it
simplifies the task in hand; it is bad when it results from an artificial
assimilation of dissimilar cases . . . The nature of international society
does not merely make it difficult to develop rules of international law of
general application, it sometimes makes them undesirable." (58 Recueil des
cours, pp. 17-18.)
This gratuitous digression in the present opinion is not intended to suggest
that in the present case the Court is directly concerned with the complex
jurisprudential problem of knowing how best to reconcile the need for
general norms in the interest of some degree of predictability versus the
need to avoid them in the interest of the particularistic and
individualistic nature of the subject-matter to which the norms are
applicable. The digression is only intended to point to one of the broader
aspects of fisheries jurisdiction impinging on the present case. [p 62]
***
From all that has been said above I find that the Court was justified in
taking an intermediate position between the narrow approach based on breach
of the treaty, to which allusion was made earlier, and the more expansive
approach based on the United Kingdom's first submission. In short, the first
two subparagraphs of the dispositif are preferable to permissible
alternatives. It remains to discuss the more controversial position
reflected in subparagraphs 3 and 4 of the dispositif.
***
The jurisdiction of the Court to entertain the merits of the dispute was, as
previously noted, definitively established by its Judgment of 2 February
1973. But the endowment of jurisdiction in the sense of the general power to
deal with the merits is one thing; the nature and scope of that power is
quite another.
It is precisely with reference to the third and fourth subparagraphs of the
dispositif that questions of the latter kind have been raised concerning the
extent of the Court's assumption of jurisdiction.
The third subparagraph states that the two Parties are under mutual
obligations to undertake negotiations in good faith for the equitable
solution of their differences concerning their respective fishery rights in
the areas around Iceland to seaward of the fishery limits agreed to in the
Exchange of Notes of 1961. The fourth subparagraph indicates the guidelines
for doing so. Briefly summarized it specifies that in the distribution of
the fishery resources, account be taken of the preferential share to which
Iceland is entitled to the extent that she qualifies as a State in a
condition of special dependence on coastal fisheries; that account also be
taken of the established rights of the United Kingdom; that the rights of
both States should be given effect to the extent compatible with the
conservation and development of the fishing resources in the area; that
regard also be paid to the interests of other States in the conservation and
equitable exploitation of the resources and that the two States keep under
review the measures required for the conservation, development and equitable
exploitation of the resources in light of scientific and other available
information.
The United Kingdom in its Memorial on the merits (paras. 300-307) earnestly
pressed upon the Court the desirability of applying equitable principles in
fairness to both Parties, an attitude also reflected in the submissions
contained in its Application and Memorial on the merits and repeated
emphatically in the oral hearings. A similar attitude was displayed by the
Applicant in the companion case concerning the Federal Republic of Germany.
The justification was rooted in the acknowledged need to balance the
traditional rights of the Applicant against the preferential rights of
Iceland in the interests of a rational approach to the [p 63] exploitation
and conservation of the fisheries in the waters under dispute.
It is true, of course, that the Court, as master of its own jurisdiction, is
not controlled by the position taken by the Applicant but is compelled to
inquire into the scope of its own jurisdiction in light of its source.
Nevertheless it is not irrelevant that the Party whose interests are most
vitally affected should urge upon the Court a solution of this kind,
grounded legally on the principle enunciated in Article 2 of the Convention
on the High Seas of 1958 which, while not binding on Iceland as a matter of
conventional law, is yet binding as a declared and acknowledged norm of
international law. Why then should the Court not respond favourably to the
proposed equitable solution of the controversy? FN1
---------------------------------------------------------------------------------------------------------------------
FN1
In the words of Judge Hudson: "What are widely known as principles of equity
have long been considered to constitute a part of international law, and as
such they have often been applied by international tribunals" (Diversion of
Water from the Mease, 1937, P.C.I.J., Series A/B, No. 70, p. 76). I would
add that those principles are particularly relevant when the issues focus on
the common use of limited resources and the applicable norms of
international law is couched in the form of a "standard".
------------------------------------------------------------------------------------------------------------
***
As I understand it, the argument questioning the Court's power to deal with
the above issues rests on the following chain of reasoning. Both the
existence and scope of the Court's jurisdiction is confined to the Exchange
of Notes of 1961. The reference in the Exchange of Notes to a "dispute" must
be strictly confined to the kind of dispute contemplated by the parties in
negotiating and framing the Exchange of Notes. This, and this alone,
constitutes the subject-matter to which the Court's jurisdiction attaches.
At no relevant time was there a dispute concerning preferential rights or
conservation. Quite the contrary, it concerned only the extension itself and
whether it could be held well founded under international law. The Court is
not privileged to change the nature of the dispute without doing violence to
its endowment of limited power in the Exchange of Notes. This interpretation
is asserted to be fortified by the travaux preparatoires and to be consonant
with the frequently stated proposition that the Court should, as a matter of
policy, exercise the greatest restraint in assuming or extending its own
jurisdictional powers. So runs the argument. In my view the argument, while
plausible, is not sufficiently persuasive. It is true, of course, that the
exclusive source of the Court's jurisdiction is the Exchange of Notes; it is
also fair to say that the major subject discussed in the negotiations
preceding the Exchange dealt with the extension as such and not with
preferential rights or conservation. But references to the latter were not
altogether lacking. [p 64]
Indeed at the very first discussion on 1 October 1960 Sir Patrick Reilly in
his opening remarks conceded that there may be areas both inside and outside
the 6-12-miie zone "which on the scientific principle of conservation
should be reserved from trawling". Mr. Andersen of Iceland countered with
the assertion that "conservation measures applicable to all alike were not
sufficient to safeguard Iceland's coastal fisheries" (Records of the
Anglo-Icelandic Discussions, 1 October 1960 to 4 December 1960, at pp. 1 and
5). Furthermore it should be recognized that a certain ambiguity attends the
meaning of the term "exclusive", a point to be alluded to later and revealed
in some of the diplomatic exchanges subsequent to the adoption of the
Exchange of Notes, as, for instance, in the Government of Iceland's Note of
11 August 1972 in which preferential rights are expressly mentioned (United
Kingdom Memorial on the merits, Annex 10, p. 125). But the more important
point, in my view, is the larger context in which the dispute itself is
located.
***
It will be recalled that the Exchange of Notes speaks of the Althing
Resolution of 5 May 1959 (quoted in para. 24 of the Judgment). The
significant point is that this resolution explicitly referred to the "policy
adopted by the Law of 1948 concerning the Scientific Conservation of the
Continental Shelf Fisheries . . .".
The title of the 1948 Law is a "Law concerning the Scientific Conservation
of the Continental Shelf Fisheries" and Article 1 authorized the Ministry of
Fisheries to ". . . issue regulations establishing explicitly bounded
conservation zones within the limits of the continental shelf of Iceland . .
." (emphasis added). It went on to declare that "all fisheries shall be
subject to Icelandic rules and control. . .".
Reverting to the Exchange of Notes of 1961 it is necessary to emphasize that
it does not refer to any particular type of extension but only that the
Government would work for the implementation of the 5 May resolution
"regarding the extension of fisheries jurisdiction". Furthermore the terms
used to describe the "dispute" are by no means restricted to the fact of
extension but to "a dispute in relation to such extension" and in the event
of such dispute, "the matter" shall, at the request of either party be [p
65] referred to the Court (emphasis added). The terms are quite general and,
on the face of it, hardly suggest the need for a restrictive interpretation.
In light of the importance of the 5 May resolution and its basis in the Law
of 1948 it seems to me clear that a too narrow interpretation of the 1961
Exchange of Notes is neither compelled by its terms nor warranted by the
context in which the whole dispute is located.
Perhaps a simple hypothetical example will help to illuminate the issue.
Suppose Iceland had not purported to extend its exclusive jurisdiction in a
fashion that was intended or likely to extinguish the rights of the United
Kingdom but, under the guise of preferential rights and conservation, she
laid down conditions that the United Kingdom found intolerable. Could it be
plausibly argued that this type of extension, although expressly keyed to
preferential rights and conservation needs, fell completely outside the
ambit of the Exchange of Notes? Would it not still fall to the Court to
decide the issue under international law? And could it be plausibly argued
that in doing so the Court had somehow converted one type of "dispute" into
another "type"?
If it is contended that this illustration misses the point since such an
extension would, in fact, be "exclusive" I can only reply that this
observation misses the point of the illustration.
I agree entirely with the conclusion stated in the Judgment that Iceland's
claim was, in fact, an exclusive one. Indeed this conclusion is essential to
the rationale of the Judgment. Furthermore it can be readily conceded that
an assertion of jurisdiction which permits a State to fish in the disputed
area only by the tolerant forbearance of the coastal State may be
characterized as the assertion of an exclusive claim. At the same time, it
should be noted that a certain ambiguity attends the notion of "exclusive"
jurisdiction as revealed in the uncertainties which attach to many claims of
States reaching beyond the 12-mile limit. These uncertainties were also
reflected to some extent in the official diplomatic exchanges between the
United Kingdom and Iceland and actual practice in the present case. It is
not surprising therefore that, in the course of the oral proceedings, in
response to a question put by a Member of the Court, counsel for the
Applicant required (in the mimeographed version of the hearing of 29 March
1974) nine pages to analyse the many meanings of "exclusive" in State
practice in which three types were emphasized (pp. 24-33). The hypothetical
illustration is designed to show that an asserted claim based on
conservation needs would not fall outside the reach of the Exchange of
Notes. [p 66]
Viewed from the point of view of the United Kingdom it would be quite
irrelevant whether, under the stated hypothesis, it was or was not
objectively an exclusive claim. The point is that a claim of extended
jurisdiction asserted on conservation grounds would not be excluded under
the Exchange of Notes.
The weakness, as I see it, in the argument which would deny the Court
jurisdictional power to respond to this issue is rooted in a too simplistic
concept of the nature of the dispute. Clearly a court could not convert a
dispute between two farmers over the ownership of a cow into one over the
ownership of a tractor. But the dispute covered in the Exchange of Notes is
not of this clearly delineated character. To speak of the extension of
"fisheries jurisdiction" is to speak of the projection of national power
into an area that is not national and that could impinge on the rights of
the Applicant. And it must be recalled that one of the main purposes of the
Exchange of Notes was to provide an amicable method of resolving a dispute.
No doubt the Court could have disposed of the dispute by limiting its
dispositif to the first two subparagraphs. It could also have disposed of
the dispute by responding to the United Kingdom's first submission as
indicated earlier in this opinion. It was not compelled to refer to
preferential rights and conservation needs. This, I take to be a question
of judicial discretion and even prudence. But all this does not entail the
consequence that it is precluded from dealing with the dispute on the
broader grounds so earnestly sought by the Applicant. To read the Exchange
of Notes of 1961 otherwise, that is to say, in a too restrictive fashion,
may have sufficed to decide the immediate issue between the Parties but, in
my view, it would not have sufficiently sufficed to resolve the dispute by
recognizing the interests of both Parties and supplying guides for their
future conduct, especially when the dispute is itself heavily impregnated
with elements of what is sometimes called distributive justice.
I hasten to add that I am not suggesting that the Court, itself, should
attempt to resolve issues involving those elements. But, to repeat, it is
not beyond the range of its function to indicate the nature of the legal
rights involved and to provide appropriate guidelines in order to facilitate
the better resolution of the dispute as was done in the Continental Shelf
cases. This, of course, is what the third and fourth subparagraphs of the
dispositif purport to do. [p 67]
***
Although the observations above may suffice to dispose of the
jurisdictional issue, another and, in my view, more troublesome problem is
involved. It is arguable that while the Court was privileged to pronounce
upon the existence and relevance of the legal norms embraced in the concept
of preferential and established rights in light of conservation needs, it
should have stopped short of imposing on the parties a duty to negotiate. In
other words, it should have merely indicated the basis for negotiations
without including a duty to engage in them. Indeed it is arguable that,
apart from lack of adequate authority, it is disingenuous to impose this
duty on the Parties, especially in light of the interim agreement of
November 1973, an agreement which would appear to render tenuous the
invocation of Article 33 of the Charter, the terms of which are confined to
any dispute, "the continuance of which is likely to endanger the maintenance
of international peace and security . . .".
Of course, to put the matter in perspective, it should be observed that a
duty to negotiate does not imply that the parties must immediately or later
engage in negotiations. Obviously one of the parties would need to initiate
them when it considered that circumstances so required. The duty to respond
would then lie with the other party. In the present case, owing to the
impact of the interim agreement of November 1973 it is readily conceivable
that the status quo would not be disturbed until the expiry of that
agreement.
The Judgment, in paragraphs 73-77, addresses itself to the problem of its
authority to specify the duty to negotiate. It states that "It is implicit
in the concept of preferential rights that negotiations are required in
order to define or delimit the extent of those rights . . ." (para. 74). It
appears to draw upon the need for collaboration flowing from the very nature
of preferential rights; it alludes to the requirement of "collaboration"
prescribed in the 1958 Geneva Resolution on Special Situations relating to
Coastal Fisheries; and it stresses a dictum in the North Sea Continental
Shelf cases which stated that the obligation to negotiate assumed in the
Special Agreements of the Parties (in that case):
". . . merely constitutes a special application of a principle which
underlies all international relations, and which is moreover recognized in
Article 33 of the Charter of the United Nations as one of the methods for
the peaceful settlement of international disputes" (I.C.J. Reports ‘969, p.
47, para. 86).
The Judgment in the present case did not, however, specifically ground its
holding on Article 33 of the Charter but suggested that its holding, based
on the very nature of the rights in question, would correspond to the
Principles and provisions of the Charter. [p 68]
Reference to the "very nature of the respective rights of the Parties"
(para. 75) while justified, may yet appear to be too cryptic a description
of an assumed power and therefore to need some elaboration.
In any event, I submit that the conclusion reached can be fortified by
reference to the widespread practice of States both in the matter of
conservation of fishery resources and, analogically, in other areas in which
the conflicting rights of States impinge on the use of a common resource.
In its Memorial on the merits the Applicant, in paragraphs 266-281, has
called attention not only to the North-East Atlantic Fisheries Convention
of 1959 to which 14 States including both the Applicant and Iceland are
parties but to the International Convention for the North-West Atlantic
Fisheries of 1949; the Atlantic Tuna Convention of 1966; the USA/USSR King
Crab Fisheries Agreement of 1969; the USA/Cuba Shrimp Convention of 1949;
the Brazil/USA Shrimp Conservation Agreement of 1972; the Convention on the
Conservation of the Living Resources of the South-East Atlantic of 1969; the
Canada/Norway Agreement on Sealing and the Conservation of Seal Stocks in
the North-West Atlantic of 1971 and the Iceland/Norway/USSR Agreement on the
Regulation of the Fishing of the Atlanto-Scandinavian Herring of 1972. After
enumerating numerous other agreements and conventions in the Baltic, the
Black Sea, the Pacific and the Antarctic, the conclusion is reached that in
six oceans and seas, 30 or more States have participated in international
agreements regulating high seas fisheries when the need for conservation,
regulation and control is present FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
According to a compilation in Lay, Churchill, Nordquist, New Directions in
the Law of the Sea, Vol. II, pp. 771-798, there were, as of 1 August 1972,
no fewer than 210 bilateral and multilateral agreements dealing with various
aspects of the law of the sea. After a characteristically thorough survey,
McDougal and Burke conclude that "Practically all international agreements
since the beginning of . . . conservation effort in 1911 . . . witness the
general understanding that the participation of all States substantially
concerned with a fishery is necessary for effective action". McDougal and
Burke, The Public Order of the Oceans (1962) at p. 965.
---------------------------------------------------------------------------------------------------------------------
It is not here suggested that each of these agreements resulted from the
application of a prior duty to negotiate. Yet clearly each was the
consequence of an imperatively felt need to engage in negotiations in order
to accommodate the conflicting rights of the parties. It is worth recalling
also that the preamble to the North-East Atlantic Fisheries Convention of
1959 puts all the parties on record as: [p 69]
"Desiring to ensure the conservation of the fish stocks and the rational
exploitation of the fisheries of the North-East Atlantic Ocean and adjacent
waters."
And the terms of the Convention on Fishing and Conservation of the Living
Resources of the High Seas places the duty of acting to conserve resources
on all States. As stated in Article 1 (2):
"All States have the duty to adopt, or to co-operate with other States in
adopting, such measures for their respective nationals as may be necessary
for the conservation of the living resources of the high seas." (Emphasis
added.)
This is further fortified by Article 4 (1):
"If the nationals of two or more States are engaged in fishing the same
stock or stocks of fish or other living marine resources in any area or
areas of the high seas, these States shall, at the request of any of them,
enter into negotiations with a view to prescribing by agreement for their
nationals the necessary measures for the conservation of the living
resources affected." (Emphasis added.)
Although Iceland was not a party to this Convention it is yet possible to
surmise that, in light of the practice of States and the widespread and
insistent recognition of the need for conservation measures that the
principle it announces may qualify as a norm of customary international law,
bearing in mind the observation made by Judge Tanaka in another context,
that:
"The role played by the existence of a world-wide international organization
like the United Nations, its agency the International Law Commission, and
their activities generally do not fail to accelerate the rapid formation of
a customary law FN1." (I.C.J. Reports 1969, p. 177.)
------------------------------------------------------------------------------------------------------------
FN1
Compare also the observation of Judge Sarensen in I.C.J. Reports 1969, pp.
242247. See generally, Baxter, "Treaties and Custom", Hague Academy of
International Law, Recueil des cours, 1970,1, pp. 31-104.
------------------------------------------------------------------------------------------------------------
Further support can be derived from the qualifying paragraph of Article 2 of
the High Seas Convention, to which frequent allusion is made in the text of
the Judgment. The obligation to pay due regard to the interests of other
States contained in Article 2 is, of course, a norm of law which lies upon
all States. It can be triggered by any State whose interests are allegedly
infringed by another State involving thereby an obligation to come to some
kind of peaceful arrangement. It is worth noting, also, that the
International Law Commission in commenting on [p 70] the preliminary draft
which ultimately emerged as Article 2 of the High Seas Convention indicated
that its rules concern particularly: "The rights of States relative to the
conservation of the living resources of the high seas" (Yearbook of the
International Law Commission, Vol. II, 1956, p. 278; emphasis added.)
It would be tedious and unnecessary to extend this discussion by referring
to analogous problems in areas other than fisheries. Yet, I cannot forbear
calling attention to Judge Jessup's observations in his separate opinion in
the North Sea Continental Shelf cases in which he alluded to the principle,
fortified by State practice, of the need for international co-operation in
the exploitation of a "natural" resource common to more than one State. To
the examples he cites and to those in Onorata's "Apportionment of an
International Petroleum Deposit", 17 International and Comparative Law
Quarterly (1969), to which he referred, many others could be added. (I.C.J.
Reports 1969, pp. 82-83.)
Projected against this broad background, the power of the Court to
adjudicate on this issue and to specify a duty to negotiate in good faith,
seem to me to be well founded in law.
***
The reference earlier in this opinion to elements of "distributive justice"
impels me, even at the risk of appearing "textbookish" to add an explanatory
comment.
The present case involves, both in its practical aspect and its long-range
implication the problem of the wise or meritorious allocation of limited
resources or what are presumed to be limited resources. This presents an
almost typical instance of what, in classical theories of justice, may be
described as distributive as opposed to corrective (sometimes called
remedial) justice.
Obviously this is no place to undertake an abstract discussion of the
requirements of what may be a just solution to a specific controversy. The
general subject commands an immense literature and it would be at once
pretentious and possibly irrelevant to broach it. I am merely suggesting
that, when contrasted with corrective justice, it may provide a helpful
analytical tool in considering the nature of a dispute, the role of a court
and the character of the norms at its disposal FN1.
[p 71]
---------------------------------------------------------------------------------------------------------------------
FN1
There are many ways of analysing the concept of distributive justice and
some were discussed in various opinions in the North Sea Continental Shelf
cases. I would agree that in the context of that case the use of the concept
by the Federal Republic of Germany was questionable.
---------------------------------------------------------------------------------------------------------------------
Allowing for gross over-simplification the distinction may be put this way:
questions of establishing a system or regime of equitable allocation of
resources engage elements of distributive justice; on the other hand
disturbances to the system fall under the province of corrective justice
FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
The distinction (although not in the form I have put it) is usually
attributed to Aristotle who discusses it in connection with "particular"
justice in his Politics (III, 9 and V, 1) and his Nicomachean Ethics (V, 3,
1-17). See also Aristotle, Ethics (Everyman edition, 1950), pp. 112 et seq.
Additional references and a brief explanation of the distinction may be
found in Academy of International Law, 91 Recueil des cours, 1957-1, pp.
549-550.
---------------------------------------------------------------------------------------------------------------------
It is not unusual to assume that the former lies exclusively in the lap of
the legislative branch and the latter in that of the Court. But this easy
way out of the problem ignores the turbulent way in which disputes are
generated, the manner in which they are put in the lap of the Court, and the
need to resolve them.
In the present case it may be urged, as Iceland has, that the wise
allocation of resources should be left to the norms of law which may emerge
from the Conference on the Law of the Sea. Whatever virtue adheres to this
position is, however, neutralized by the sheer fact that the Court must
decide a case in which, basically, elements of distributive justice intrude.
Its capacity to do so is not precluded by any theory of the judicial process
which inhibits it from analysing all the elements involved in any dispute,
marshalling ail the supporting data, even of a highly sophisticated
scientific character, and "laying down the law" in terms of the
establishment of a regime of allocation. But considerations of a practical,
political and psychological nature dictate that this function is best done
at the outset by the parties themselves or better still by other bodies
specially qualified to assess the conflicting interests, the relevant
scientific factors, the values involved, and the continuing heed for
revising the regime in light of changing conditions. The Court's role is
best limited to providing legal guide-lines which may facilitate the
establishment of the system and in the event of a subsequent dispute, to
help redress disturbances to it. Meanwhile the Court has consistently
indulged the assumption that the Parties will, in fact, negotiate in good
faith.
This, of course, is the approach taken by the Court in subparagraphs 3 and 4
of its dispositif. Viewed in this light, it supplements the findings in the
first two subparagraphs, while also responding to the requirements of
distributive justice.
(Signed) Hardy C. Dillard.
[p 72]
SEPARATE OPINION OF JUDGE DE CASTRO
[Translation ]
I have voted with the majority, but do not consider that I can wholly
subscribe to the reasoning in the Judgment. I therefore venture, in exercise
of the right conferred on me by the Statute, to set out in detail the
reasons for my vote.
I. The Texts to Be Interpreted
I. The 1961 Agreement
The Exchange of Notes of 11 March 1961 underlies the whole case; the
compromissory clause contained therein constitutes the source of the Court's
jurisdiction (Judgment of 2 February 1973). It is necessary to interpret its
content in order to ascertain the intentions of the parties, which is the
first factor to be taken into account by the Court.
The Exchange of Notes took place at a time when the law of the sea was
undergoing a crisis in its development, and it is in this context that it
should be considered and then interpreted FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
On the relationship between the Icelandic claims and the development of the
law of the sea, see section III.
---------------------------------------------------------------------------------------------------------------------
On 5 April 1948 the Althing adopted the "Law Concerning the Scientific
Conservation of the Continental Shelf Fisheries", and by a decree of 30 June
1958, Iceland's fisheries limits were extended to a distance of 12 miles.
The United Kingdom challenged the validity of this action and there ensued
serious incidents and lengthy negotiations. It was during this period that
the Resolution of the Althing of 5 May 1959 was passed and the United
Nations Conference on the Law of the Sea was held in 1960. Finally,
following talks in London and Reykjavik, the dispute was settled by the
Exchange of Notes of 11 March 1961. The United Kingdom Government accepted
Iceland's unilateral declaration of 1958 stating that it "will no longer
object to a 12-mile fishery zone around Iceland".
This acceptance by the United Kingdom was explained in a letter from Her
Britannic Majesty's Ambassador to the Foreign Minister of Iceland as being
"in view of the exceptional dependence of the Icelandic nation upon coastal
fishery for their livelihood and economic development". Iceland's [p 73]
special interest in the fisheries of its coastal waters was thus recognized
FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
This special interest of Iceland was recognized by the Court in the Order of
17 August 1972 (I.C.J. Reports 1972, pp. 16 and 17) and in its Judgment of 2
February 1973 (I.C.J. Reports 1973, p. 20).
---------------------------------------------------------------------------------------------------------------------
The United Kingdom accepted a 12-mile zone, but only because of Iceland's
special interest in the adjacent seas. Iceland for its part regarded the
12-mile limit as provisional and did not accept it as the maximum and
permanent limit.
The United Kingdom conceded that the following reservation should be
inserted in the Agreement:
"The Icelandic Government will continue to work for the implementation of
the Althing resolution of 5 May 1959, regarding the extension of fisheries
jurisdiction around Iceland."
The Icelandic Government thus reserved the power to extend its fisheries
jurisdiction at will, subject to certain conditions or more precisely to
certain restrictions, namely those set out in the agreement; that six
months' notice be given of any decision to that effect and that any dispute
which might arise over any such extension be referred to the Court at the
request of either party. Additionally there was an implied restriction that
the purpose of any extension would be to implement the Althing resolution of
5 May 1959.
In its resolution of 5 May 1959, the Althing had declared 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".
Thus the Law of 1948 enables the true scope of Iceland's reservation in its
1961 Notes to be ascertained. Its purpose was identical to its title: its
direct object was the establishment of "conservation zones" within the
limits of the Icelandic continental shelf; but, in accordance with
progressive thinking which was already widespread at the time, the Law went
on to lay down that in the said zones "all fisheries shall be subject to
Icelandic rules and control" (Art. 1).
The statement of reasons for the Law mentioned Iceland's special interests
and declared that:
"It is well-known that the economy of Iceland depends almost entirely on
fishing in the vicinity of its coasts. For this reason, the population of
Iceland has followed the progressive impoverishment of fishing grounds with
anxiety."
It also referred to the new trends in the law of the sea, especially the [p
74] growing recognition by countries which engage in fishing mainly in the
vicinity of their own coasts, of the right of coastal States to ensure the
protection of fishing grounds in accordance with the findings of scientific
research. The "commentary on Article 1" explained that it provided for:
". . . the delimitation of the waters within which the measures of
protection and prohibition of fishing should be applied, i.e., the waters
which are deemed not to extend beyond the continental shelf; and, on the
other hand, the measures of protection and prohibition of fishing which
should be applied in these waters".
On the question of the sovereignty of States over fishing grounds in the
vicinity of their coasts, the statement of reasons was not categorical,
merely stating that:
"It would appear, however, to be more natural to follow the example of those
States which have determined the limit of their fisheries jurisdiction in
accordance with the contour of the continental shelf along their coasts.
The continental shelf of Iceland is very clearly distinguishable, and it is
therefore natural to take it as a basis. This is the reason why this
resolution has been adopted in the present draft law."
Under Article 2 of the Law:
"The regulations promulgated under Article 1 of the present law shall be
enforced only to the extent compatible with agreements with other countries
to which Iceland is or may become a party."
These texts may be seen as reflecting, to a moderate extent, the so-called
progressive movement, initiated by President Truman's Proclamations, and
expressed in the trends towards a renewal of the law of the sea relating to
fisheries which have resulted from the legislation and the doctrines of
Latin American countries.
It seems to me that according to the text of the Law of 1948 and of the
explanations given in the statement of reasons for the Law, the Icelandic
reservation of 1961 should be interpreted as a solemn declaration of its
intention to extend its fisheries zone in the future and to do so
unilaterally, by reason of the special interests and especially the
preferential rights of Iceland within the limits of its continental shelf,
such a reserved right of extension to be enforced in so far as was
compatible with such agreements as Iceland might conclude with other
countries.
It should be noted that in 1948 the Icelandic Government proceeded with
caution; it did indeed claim to subject the zone superjacent to the
continental shelf to its rules and controls, but it did so because it saw
such areas as "conservation zones". Therefore, the reservation made in the
Exchange of Notes of 1961 in respect of the intentions expressed in the [p
75] Althing Resolution of 1959which in turn referred to the Law of 1948 is
to be interpreted not as a reservation of a right to claim exclusive fishing
rights within the limits of the Icelandic continental shelf, but as a
reservation of the right to claim preferential rights by reason of Iceland's
special interests.
2. The 1972 Althing Resolution
The Althing Resolution of 1972 asserted that the continental shelf of
Iceland and the superjacent waters were within the jurisdiction of Iceland
and provided that the fishery limits would be extended to 50 miles from
baselines around the country (para. 1). The extension effected by this
Resolution is the cause of the dispute now before the Court. The
Resolution, however, merits detailed consideration.
Paragraph 2 states:
"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."
The Court has adjudged and declared that the Notes of 1961 are still in
force so far as concerns the compromissory clause (Judgment of 2 February
1973). In that respect, the Althing Resolution was considered to be of no
effect. For reasons similar to those set out in the said Judgment (paras. 36
et seq.), and in the light of the principles enshrined in Article 42 of the
Vienna Convention on the Law of Treaties, it is quite clear that Iceland
does not have the right to declare unilaterally that the agreement made in
1961 no longer constitutes an obligation for it.
The Court could confine itself to saying that the Althing Resolution,
proclaiming the lapse of the 1961 Notes, was void and ineffective. But the
other paragraphs of that Resolution should be considered independently
(duae sunt... stipulationes, una utilis, alia inutilis, neque vitiatur
utilis per hanc inutilem, D.45.1.1, para. 5), and in relation to the 1961
Notes in question.
Paragraph 1 is no more than the implementation of what had been announced in
1961, i.e., the extension of Iceland's jurisdiction over the whole
continental shelf area. It now describes the Law of 1948 as the "fundamental
policy of the Icelandic people" FN1. The aim of the Resolution and that of
the 1948 Law were in fact the same, i.e., "to strengthen the measures of
protection essential to safeguard the vital interests of the Icelandic
people in the sea surrounding its coasts" and to prevent all that [p 76] was
"harmful to the maintenance of the resources of the sea on which the
livelihood of the Icelandic people depends" (Government of Iceland's
aide-memoire of 31 August 1971).
---------------------------------------------------------------------------------------------------------------------
FN1
It should be noted that Article 7 of the Icelandic Regulations of 14 July
1972 states that: "these regulations are promulgated in accordance with Law
No. 44 of 5 April 1948, concerning the scientific conservation of the
continental shelf fisheries."
---------------------------------------------------------------------------------------------------------------------
If the decree of 30 June 1958 is borne in mind, the 1972 Resolution can be
considered as the adoption of a position in view of future negotiations, the
aim being to adapt Iceland's jurisdiction to the new trends in the law of
the sea and to take advantage of a fresh crisis in the development of that
law. The demand for a zone of exclusive jurisdiction (cf. above
aide-memoire) was formulated in most moderate terms. The 1972 Resolution
pointed out that:
". . . efforts to reach a solution of the problems connected with the
extension [will] be continued through discussions with the Governments of
the United Kingdom and the Federal Republic of Germany FN1" (para. 3).
------------------------------------------------------------------------------------------------------------
FN1
This statement, which appears in the middle of the Resolution, seems to me
to be highly significant; problems which the 1961 Exchange of Notes made it
possible to bring before the Court are referred to negotiation.
------------------------------------------------------------------------------------------------------------
In those discussions, the Icelandic representatives emphasized the
importance of a positive reaction from the British side to a point regarded
as fundamental: "recognition of preferential rights for Icelandic vessels as
to fishing outside the 12-mile limit." (Government of Iceland's Note of 11
August 1972.)
3. The 1973 Agreement between the United Kingdom and Iceland
The Court has been informed of the Exchange of Notes constituting an interim
agreement on fisheries between the Government of the United Kingdom and the
Government of the Republic of Iceland, dated 13 November 1973.
This agreement deprives of effect as between the Parties the Orders of the
Court made on 17 August 1972 and 12 July 1973, indicating interim measures.
It establishes a temporary regime valid for a period of two years. The
agreement is temporary "pending a settlement of the sub-stantive dispute".
It is also stated that "its termination will not affect the legal position
of either Government with respect to the substantive dispute" (para. 7).
The Court may wonder whether the effect of the 1973 agreement is only to
replace the interim measures laid down in the Orders of the Court by the
Exchange of Notes. It seems to me that this agreement has a wider and more
general scope which should be examined.
On that same date, 13 November 1973, the United Kingdom Prime Minister said
in the House of Commons, in reply to Mr. Harold Wilson:
"Our position at the World Court remains exactly as it is, and the agreement
is without prejudice to the case of either country in this matter. This is
an interim agreement covering two years from the [p 77] moment of signature
this afternoon, in the expectation that the Conference on the Law of the Sea
will be able to reach firm conclusions. We all know the difficulties facing
a conference on the law of the sea, but both Governments hope that it will
have been possible by the expiration of this agreement to reach agreement on
the law of the sea and that that will then govern the situation."
The Court cannot ignore the terms of this agreement and the interpretation,
given in the House of Commons, of its aims and intentions. It is thus placed
in an embarrassing position.
As a result of this agreement, the Court's judgment on the merits of the
case will have no immediate effect. It has been subjected by the Parties to
a waiting period of two years and to two conditions, the first concerning a
settlement of the dispute by a new agreement and the second relating to an
agreement at the Conference on the Law of the Sea. All this is irregular and
hardly in keeping with what seems to be the function of the Court.
This agreement also shows that the Parties do not believe that the Court
will be able to settle their dispute. They have found a solution to certain
issues referred to the Court, albeit for a period of two years only. This
agreement is an interim one, but it was concluded "pending a settlement of
the substantive dispute". Now the settlement which the Parties say they are
waiting for is not that which may result from a judgment of the Court. This
is obvious, in view of the attitude of Iceland, which continues to deny that
the Court has jurisdiction. The hope of the Parties that they will be able
to reach a definite settlement is based on negotiations now in progress,
whether or not they are carried on with the Conference on the Law of the Sea
in view.
Does the announcement of these negotiations justify suspending the
proceedings? It is true that peaceful settlement of disputes should be
brought about above all by means of negotiation. The Court is open to States
to settle issues of a legal nature which they may refer to it, but a dispute
is ripe for reference to the Court, when negotiations between the parties
reach deadlock and when the success of the negotiations has definitively
been ruled out as a result of a non volumus or a non possumus of the
parties. I do not know of any precedent which might help to answer this
question; in my opinion, once proceedings have been initiated, there is no
way of suspending them, and they should continue unless the case is settled
out of court or discontinued.
The agreement constitutes a valuable argument in favour of cautious
solutions. It shows that the readiness expressed by Iceland in the 1972
Resolution to seek a solution of the problems connected with the extension
through discussions was not an empty formula. It also shows that a judgment
of the Court, delivered before the Parties reach a settlement through
negotiations on the substance of the dispute, and drawn up without taking
into consideration the indicative value of [p 78] the agreement, could be an
insurmountable obstacle to a negotiated settlement of the disputeand that
would be contrary to the essential purpose of the Court which is to
contribute to the peaceful settlement of disputes.
II. The Burden of Proof
A preliminary question which arises is that of the burden of proof.
The United Kingdom Memorial on the merits asserted that "the burden of
proving that international law now recognizes the right of a coastal State
to make such an exclusive claim as Iceland is now making rests upon
Iceland". In support of this assertion, it stated that the Exchange of Notes
of 1961 represented the law as it then existed, and that the conclusion to
be drawn therefrom was that "an assertion of exclusive jurisdiction over
fisheries beyond 12 miles is not permissible by unilateral act". It added
that Iceland must furnish convincing proof before such long-established
rights could be set aside (para. 229) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
In this sense, cf. Katz, "Issues Arising in the Icelandic Fisheries Case", Internationa! and Comparative Law Quarterly, XXII-I (January 1973), p. 95.
---------------------------------------------------------------------------------------------------------------------
The Memorial on the merits of the Federal Republic of Germany argued that:
"It is Iceland, not the Federal Republic of Germany, which is challenging
the established law, and it is for this reason that the Government of the
Federal Republic maintains that the burden of proof that international law
now recognizes the right of a coastal State to extend its jurisdiction
beyond the 12-mile limit, rests upon Iceland." (Part IV, para. 60; see also
para. 66.)
In my opinion, this line of argument rests on incorrect premises.
It is begging the question to say that the law as it existed, the
"established law", prohibited States from extending their fisheries
jurisdiction beyond 12 miles. All that one can say is that around 1961 there
was a trend in favour of the 12-mile rule. But the question still remains
for con-sideration whether or not this rule fulfilled the conditions
necessary for it to be regarded as a rule of customary law.
It is not permissible to refer to rights as being definitively and firmly
vested rights in 1961; the Exchange of Notes of 1961 contained an express
reservation whereby the Government of Iceland proclaimed its intention to
work for the extension of its fisheries jurisdiction beyond 12 miles, such
reservation being accepted by the other party. The said rights were
therefore conditional vested rights.
The question raised by the Applicant regarding the burden of proof seems to
me to be an unreal question, calling for a different reply depending on who
puts it. The Applicant believes that Iceland has claimed [p 79] the right to
extend its fisheries jurisdiction beyond 12 miles and should provide
evidence of the law under which it is entitled to extend its jurisdiction
beyond 12 miles and up to 50 miles. From Iceland's point of view, it is the
United Kingdom which has claimed the right to over-rule Iceland's
resolution, as being contrary to international law; it is therefore for the
United Kingdom to provide evidence of the law limiting Iceland's
sovereignty.
The question is the same, but is put from different standpoints. The proof
to be sought is that of the substantive law to be applied in this case, a
law which is the same for both parties although considered from two
different points of view FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
I think that this is confirmed by the inconclusive discussions in the United
Kingdom v. Norway Fisheries case and by the considered views on the matter
of Lauterpacht, The Development of International Law by the International
Court (London, 1958, pp. 363, 365).
---------------------------------------------------------------------------------------------------------------------
The question should also be asked whether customary international law has to
be proved. This question has arisen in the municipal law of States where
customs are considered as giving rise to a quaestio facti, but the customs
referred to are those peculiar to regions, places or groups of persons
(businessmen, farmers, etc.). The question arises in international law in a
wholly different way.
A distinction should be observed between two categories of customs.
Traditionally jurists and canonists have distinguished in ordinary law
between notorious customs well known to all and particular customs; the
latter, being exceptions, had to be proved. This is also the case in English
law, under which there are two kinds of customs: "general customs" which
apply throughout the Kingdom and "particular customs" applicable to the
inhabitants of certain regions. The particular customs had to be proved,
while the general customs did not,they were the "common law" FN2.
---------------------------------------------------------------------------------------------------------------------
FN2
Blackstone, Commentaries on the Laws of England, Introduction, para. 3, 4th
ed., Oxford, 1770, pp. 67, 75.
---------------------------------------------------------------------------------------------------------------------
International customary law does not need to be proved; it is of a general
nature and is based on a general conviction of its validity (opinio iuris).
The Court must apply it ex officio; it is its duty to know it as quaestio
iuris: iura novit curia FN3. Only regional customs or practices, as well as
special customs, have to be proved FN4.
[p 80]
---------------------------------------------------------------------------------------------------------------------
FN3
In the Lotus case the Court raised the question whether Turkey had acted in
a manner contrary to the: principles of international law (P.C.I.J., Series
A, No. 10 (1928), p. 32); in the Fisheries case between the United Kingdom
and Norway, the Court considered the question whether Norway's actions were
contrary to international law (I.C.J. Reports 1951, p. 132). The question of
the law to be applied was therefore not considered in the terms of the view
of the Applicant in these cases, and there is no reason to adopt a different
course in the case now before the Court.
FN4 I.C.J. Reports 1950, p. 276.
---------------------------------------------------------------------------------------------------------------------
III. The Development of the Law of the Sea
1. The Court has said that the delimitation of sea areas depends upon
international law (I.C.J. Reports 1951, p. 132). What are the rules of
international law to be applied to the delimitation made by Iceland?
The existence of such rules has been denied by the Icelandic Prime Minister
in a speech, in which he said:
"I cannot see that our proposed extension of fisheries jurisdiction is
contrary to any accepted international law. It is a fact that there are no
generally accepted rules in international law on the territorial limit."
(Iceland and the Law of the Sea, 1972, p. 31, quoted in the Memorial on the
merits of the Federal Republic of Germany, Part IV, p. 96, para. 58.)
The terms used are of a polemical nature; they come from one of the Parties
to the dispute. But it has also been possible to make the following
objective comment:
"... in plain words, the really grave issue is not what breadth is presently
accepted, but whether the issue is governed by international law at all
FN1".
------------------------------------------------------------------------------------------------------------
FN1
Brownlie, Principles of International Law, 2nd ed., Oxford, 1973, p. 196.
------------------------------------------------------------------------------------------------------------
In my opinion, the changes, the increasingly rapid development of technical
conditions for the exploitation of the resources of the sea have resulted in
a visible lagging behind of the old rules; there is a crisis in the law of
the sea, but that should not stand in the way of the search for a just legal
solution of this case. I think it would be useful to examine this
development before considering the law to be applied. I do not propose to
repeat here the well-known history of the law of the sea, but only to
restate what may be useful to arrive at what I consider the necessary
clarification of some points in order to justify my opinion on the law to be
applied.
2. The opposition between the theses of mare liberum and mare clausum is of
a purely political nature; it reflects the need to counter, with arguments
of every kind, the claims to hegemony of the maritime powers; it is the
struggle for the domain or empire of the sea.
"The question ... has been a subject for debate in our day by the most
distinguished minds. In connexion with this question it has been easy to
observe that many of the disputants hold their zeal for their own country
before their eyes rather than the truth FN2."
------------------------------------------------------------------------------------------------------------
FN2 Pufendorf, De jure naturae et gentium, translated from the Latin by C.
H. and
W. A. Oldfather, Carnegie Institute, 1934, IV, 5, 5.
------------------------------------------------------------------------------------------------------------
On the other hand, the delimitation of sea areas is considered from a legal
point of view when it concerns the question of mare adjacens. The [p 81]
glossator, and then the commentary of Baldo on D, 1, 8, 2, had already
generalized among jurists the distinction between proprietas, usus,
jurisdictio out protectio.
The high seas, res communis omnium, is not something that lends itself to
ownership; its use is common to everybody, and this applies also to fishing.
The sea unquam fuit a communione hominum separatum, and unlike land and
rivers, there is no reason to divide it up; fish stocks in the sea are
inexhaustible and it would be iniquitous to divide up ownership in them or
the right to fish for them (iniqua nullo tempore praescribuntur) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Grotius, Mare liberum sive de iure, quod Batavis competit ad Indicana
commercia, dissertatio, Ed. de H. Cocceius, Lausannae, 1752, IV, p. 469.
--------------------------------------------------------------------------------------------------------------------
The mare adjacens is subject to the jurisdictio et protectio of the ruler of
the territory. Over that area the potestas of the master of the coast is
recognized without difficulty 2. Its foundation is the fact that the
adjacent sea is necessary to the defence of the territory itself ; the
coastal zone has the same value as a moat3 or a rampart 4.
---------------------------------------------------------------------------------------------------------------------
FN2
Grotius recognized that the imperium in maris portionem could exist by
reason of the territory, quatenus ex terra cogi possunt, qui in proxima
maris parte versantur, nec minus quam si in ipsa terra reperirentur. De iure
Belli ac Pacis, II, 3. 13, 2, ed. Amstelaedami, 1735, 1, p. 238.
FN3 Unde dominium maris proximi non ultra concedimus, quam e terra illi
imperari potest, et tamen eo usque; nulla si quidem sit ratio, cur mare,
quod in alicujus imperio est et potestate, minus ejusdem esse dicamus, quam
fossam in ejus territorio, Bynkershoek, De dominio maris dissertatio, chap.
II, Opera omnia, Ed. Coloniae Allobrogum, 1761, II, p. 103.
FN4 Every country ". . . is deemed to be the master of the sea which washes
its coast as far as it serves it as a rampart". Pufendorf, loc. cit., IV, 5,
para. 8. II, p. 276.
---------------------------------------------------------------------------------------------------------------------
Once jurisdictio over the adjacent sea has been recognized, there is no
difficulty in extending it to fisheries, with the possibility of excluding
foreign vessels from that area, or of demanding tribute for permission to
fish there 5. The width of the area of jurisdiction or imperium is justified
by the defence needs of the territory. It was fixed according to the range
of cannon 6, of the naked eye, of binoculars, or else in miles. The number
of miles varied according to countries and writers, from the 60 miles
attributed to Baldo down to three or four miles. The thinking of the 18th
century has been summed up as follows:
---------------------------------------------------------------------------------------------------------------------
FN5
On this question, see Cocceius in his commentary to Grotius' De iure Belli
ac Pacis, ed. Lausannae, 1751, II , p. 143. On the "Sardine War", see
Johnston, The International Law of Fisheries, 1965, p. 169.
FN6 Potestatem terrae finiri, ubi finitur armorum vis, Bynkershoek, loc.
rit., p. 101.
---------------------------------------------------------------------------------------------------------------------
"It is not easy to determine just what extent of its marginal waters a
nation may bring within its jurisdiction. Bodin (De la Republique, Liv. I,
chap. X) claims that, following the common rule of all maritime nations FN7,
the sovereignty of the Prince extends as far as 30 leagues from the shore.
But this precise determination could only be based upon a general consent of
nations, which it would be [p 82] difficult to prove. Each State may
regulate as it thinks best the use of those waters as far as the affairs of
its citizens, either with one another or with the Sovereign, are concerned;
but between nation and nation the most reasonable rule that can be laid down
is that in general the sovereignty of a State over its marginal waters
extends as far as is necessary for its safety and as far as it can be
effectively maintained; because on the one hand a nation may appropriate
only so much of common property, like the sea, as it has need for some
lawful end . . .FN1 "
------------------------------------------------------------------------------------------------------------
FN7 Barbeyrac comments that Bodin (1, ch. 80, ult.) agreed with Baldo that
in the Law
of Nations the jurisdiction of a prince extends to a distance of 60 miles
from the shores
of his territory, Notes to Pufendorf, loc. cit., p. 276, Note 7.
FN1 Vattel, The Law of Nations, I, ch. 23, para. 289, trans. C. G. Fenwick,
Carnegie Institute, Classics of International Law, p. 108.
------------------------------------------------------------------------------------------------------------
3. This concept, which could be called the classical concept, and which
predominated until the middle of this century, is no more than the
development of ancient principles. Sovereignty over land is considered to
extend to the sea dominated by that land; this marine belt is equivalent to
a territorial sea. The imperium over the adjacent sea gives rights to and
imposes obligations on a State; these are of great variety (neutrality,
prize, contraband, customs, lighthouses, etc.) and they include in
particular exclusive fishing rights.
In practice the difficulty to be overcome has been to reach an agreement
fixing the maximum distance in miles beyond which States are no longer
allowed to extend unilaterally their fisheries jurisdiction. Has any such
rule, ranking as an international custom, crystallized?
From the 18th century up to the Second World War the question of the limits
of fishing zones did not give rise to serious problems. It was possible to
say that the law of the sea was a model of stability in the international
community. The draft regulations concerning the territorial sea in time of
peace, prepared by the Institute of International Law at its Stockholm
session in 1928, well reflected the general opinion: "The territorial sea
extends for three sea miles. An international custom may justify recognition
of a greater or lesser breadth than three miles FN2."
---------------------------------------------------------------------------------------------------------------------
FN2
Annuaire de l'Institut de Droit international, 1928, p. 755.
---------------------------------------------------------------------------------------------------------------------
4. The Declaration of Panama of 3 October 1939 has been regarded as the
first symptom of a withdrawal from the so-called classic conception of the
law of the sea. Twenty-nine nations, under the aegis of the United States,
established a neutral zone beyond the territorial sea, extending in some
places as far as 300 miles.
The origin of the crisis in the law of the sea with regard to fisheries is
to be found in the proclamations by President Truman (28 September 1945).
The old principle of the division of the sea into two zones, the territorial
sea and the high seas or free seas, which had up till then been regarded as
dogma, was called in question or abandoned. A new zone, that of the
continental shelf, was now recognized. In that zone, the coastal [p 83]
State has rights of exploitation of the natural resources of the sea-bed and
subsoil (the proclamations of President Truman only contemplated the mineral
resources of the shelf). There was also to be another zone beyond the
territorial sea, that of the superjacent epi-continental waters, considered
as sources of biological wealth; this was a zone over which the right to
establish reserved areas for the protection and conservation of fisheries
was asserted FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Spanish and South American precedents are quoted in Rojahn, Die Anspruche
der lateinamerikanischen Staaten auf Fischereivorrechte jenseits der
Zwolfmeilengrenze, Hamburg, 1972, pp. 17-19; but they do not seem to have
had any influence.
---------------------------------------------------------------------------------------------------------------------
The ideas enunciated by President Truman in his proclamations had
consequences unforeseen by their author. Their success is not to be
explained solely by the political weight of the United States; it was
justified by the changes which had occurred in the techniques of
exploitation of the sea-bed and fisheries. The theoretical basis of freedom
of fishing in the high seas (the zone outside the territorial sea), argued
by Grotius and followed by general opinion, had become unsound. The
inexhaustibility of fisheries proved to be an illusion. The new methods of
fishing made it necessary to take steps for the conservation of the living
resources of the high seas.
Thus new concepts entered international practice, marking "a reversal of the
traditional ideas on the liberty of the high seas" and principles were
stated of "a new theory which was soon to throw international law into
confusion, by provoking ever bolder initiatives FN2". The Truman
Proclamations were subject to carefully drafted limits and reservations,
taking account of the interests of the States engaged in fishing in the high
seas, but they opened new prospects to learned speculation, and afforded
States plausible grounds for enlarging their zones of fishery jurisdiction.
---------------------------------------------------------------------------------------------------------------------
FN2
Ferron, Le droit international de la mer, Paris 1960, Vol. II, p. 141.
---------------------------------------------------------------------------------------------------------------------
The special nature of the continental shelf once accepted, it should be
observed that it is neither easy nor natural to separate the legal status of
the various elements composing it, since they are closely linked together.
It would seem artificial to make a distinction between mineral resources and
living resources. De Buen proposed as early as 1916 (at the Madrid
Conference) the incorporation of the continental platform in the territorial
sea, as being the area most propitious to the development of edible species
of fish, and the most favourable fishing ground.
Thus the difficulty of defining the boundaries and the structure of the
continental platformand the difficulty resulting from the existence of
coasts practically without a continental shelfwas to lead to the
substitution, for geological, bathymetrical and geographical criteria, of
the simplified concept of an epi-continental zone established by each State
beyond its territorial sea, and varying in the extent.
5. Another trend favouring the enlargement of the fishery zone flowed [p 84]
from the fact that the idea of protection and conservation of fisheries grew
into the idea of jurisdiction in that connection over an area extending
beyond the territorial sea. Once the jurisdiction of the coastal State to
safeguard the conservation of fish stocks was recognized, the special
interests of the inhabitants of that country constituted a basis for the
establishment of preferential or exclusive rights over that zone in favour
of that State.
For one or other of these reasons, the fact is that following the Truman
Proclamations, there was a sort of chain reaction consisting of a series of
declarations in favour of extension of the fisheries jurisdiction of States.
On 29 October 1945, Mexico declared that it claimed the whole area of the
continental platform adjacent to its coasts and all the natural resources,
known or unknown, to be found therein. On 11 October 1946, Argentina
declared that the epi-continental sea and the Argentinian continental shelf
were subject to national sovereignty. On 1 May 1947, Nicaragua asserted
sovereignty over the contiguous area of the high seas or the waters of the
continental shelf, up to 200 miles from the coast FN1. It should be observed
that it is in this historical perspective, and against the background of the
trend flowing from the Truman Proclamations that the Icelandic Law of 1948
concerning the scientific conservation of the continental shelf fisheries
should be placed and also interpreted.
---------------------------------------------------------------------------------------------------------------------
FN1
On the legislative acts and declarations made at the time by Panama, Peru,
Costa Rica, Nicaragua, Honduras, El Salvador, Brazil, Ecuador and Venezuela,
see Alvarez, Los nuevos principios del derecho del mar, Montevideo 1961, pp.
21 ff. and Ferron, op. cir., pp. 157 ff. On the doctrine of Latin American
authors prior to 1961 (Bustamante y Rivero, Ulloa, Garcia Montufar, Garcia
Sayan) see Rojahn, Die Anspruche, p. 144.
The attitude of the Latin American States has been described as "reactions
to what these nations felt to be a failure of international mechanisms to
respond to fisheries crises": Jacobson, "Bridging the Gap to International
Fisheries Agreement: a guide for unilateral action", The San Diego Law
Review, Vol. 9, No. 3, May 1972, p. 465.
---------------------------------------------------------------------------------------------------------------------
The current legal revolution is in the course of being established thanks to
the Santiago Declaration of 18 August 1952, and the principles adopted at
the 3rd Meeting of the Inter-American Conference of Legal Advisers held in
Mexico in 1956, as well as at other conferences and meetings of Latin
American lawyers.
The claiming of exclusive jurisdiction over fisheries or of preferential
rights over wider and wider zones6 sea miles, 12 sea miles, and even 200
sea milesand the claim by coastal States to settle unilaterally their
fishery jurisdiction, have naturally led to alarm among the countries
interested in high sea fishing.
6. In order to put an end to such dangerous uncertainties, the
International Law Commission in 1949 included the law of the sea among the
subjects to be studied with a view to codification. In the third draft
prepared by the Commission for the United Nations Conference on the Law of
the Sea, the 12-mile rule was laid down as a compromise formula. The
Commission recognized that international practice was not uniform [p 85]
with regard to the delimitation, and added: "The Commission considers that
international law does not permit an extension of the territorial sea beyond
12 miles FN1."
---------------------------------------------------------------------------------------------------------------------
FN1
Yearbook of the International Law Commission, 1956, Vol. II , p. 265.
---------------------------------------------------------------------------------------------------------------------
The 1958 Conference showed the difficulty of reaching any consensus. The
International Law Commission draft, which would have set a maximum limit to
the extension of the territorial sea, was blocked. The 12-mile rule was
acceptable neither to the countries who wished to keep the 3-mile rule nor
to those who wished the possibility of a greater extension to be recognized.
Each of the opposing tendencies at the Conference could boast of certain
resolutions in its favour. The conservative trend succeeded in having
freedom of fishing included in the Convention on the High Seas as one of the
four freedoms of the high seas; the high seas were there defined as meaning
all parts of the sea that are not included in the territorial sea. The
Convention on the Continental Shelf lays down that the rights of the coastal
State over the continental shelf do not affect the legal status of the
superjacent waters as high seas; in the definition of natural resources,
over which the coastal State has sovereign rights, were included, in
addition to mineral resources, living organisms belonging to sedentary
species, and only those organisms.
The innovating trend could also boast of a certain measure of success. The
Convention on Fishing and the Conservation of the Living Resources of the
High Seas recognized that the coastal State has a special interest in the
maintenance of the productivity of the living resources in any area of the
high seas adjacent to its territorial sea, which in certain circumstances
entitles it to adopt unilateral measures of conservation. The Conference
Resolution on Special Situations relating to Coastal Fisheries recommended
taking account of the "preferential requirements of the coastal State
resulting from its [economic] dependence upon the fishery" where it becomes
necessary "to limit the total catch of the stock or stocks of fish in an
area of the high seas adjacent to the territorial sea".
The Conference left unsolved the two most important questions, namely that
of the maximum extension of the territorial sea, and that of the extension
of the adjacent zone subject to the fisheries jurisdiction of the coastal
State.
It was in the climate of uncertainty and conflict of trends experienced
during the 1958 Conference that Iceland issued the decree of 30 June 1958
extending its fishing zone to 12 miles.
The Second Conference on the Law of the Sea (Geneva 1960) was called to
settle the question of the breadth of the territorial sea and of the limits
of fisheries zones; it was however a failure. But the 12-mile rule made
marked progress.
It is true that the proposal to limit the breadth of the territorial sea to
a maximum of 12 miles was rejected in committee (by 39 votes to 36, [p 86]
with 13 abstentions), but the compromise proposal made by the United States
and Canada, contemplating a zone of territorial sea of 6 miles and a zone of
exclusive fisheries jurisdiction of 6 miles, voted on at a plenary session,
failed to be adopted by one vote, one additional vote being necessary for
the text to receive a two-thirds majority (54 votes in favour, 28 against,
and 5 abstentions) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
The compromise nature of the vote which occurred should be observed; it
should be examined in relation with the proposal by Brazil, Cuba and Uruguay
on recognition of preferential rights.
---------------------------------------------------------------------------------------------------------------------
7. It should be observed that there are different understandings of the
12-mile rule both among States and among writers. By some it has been
regarded as a brake on the pressure of new States anxious to extend still
further their fisheries jurisdiction; for them it is the maximum permitted
extension. By other States it has been understood as a first stage towards
achieving recognition of the wider extension which they have in view; for
them it is the minimum extension acceptable.
It was in this atmosphere of conflicting trends, which came into the open at
the Conference of 1960, that the 1961 agreement must be examined. The trend
of ideas opposed to the 3-mile rule had to be accepted; but the United
Kingdom did not recognize the rule permitting the extension of fisheries
jurisdiction up to the 12-mile limit as a general rule; it accepted it, but
only as a negotiated rule, and in consideration of the special interests of
Iceland. Iceland for its part did not recognize the 12-mile rule as the
maximum limit of its fisheries jurisdiction zone; it sought an extension to
12 miles because that was what it was possible for it to obtain at the time,
but it regarded it as a provisional extension and reserved the power of
making a further extension, and applied itself to implementing the Althing
Resolution of 5 May 1959.
8. The failure of the 1958 and 1960 Conferences prevented any rule as to the
maximum limit for the fisheries zone from crystallizing. The development of
the law of the sea in this field took place in conditions of anarchy, the
dominant note being a progressive and accelerated extension of the claims of
coastal States FN1.
---------------------------------------------------------------------------------------------------------------------
FN2
This "creeping jurisdiction" was observable between 1967 and 1971: Kahden,
Die Inanspruchnahme von Meereszonen und Meeresbodenzonen durch
Kustenstaalen, 2nd ed. 1971, preface.
---------------------------------------------------------------------------------------------------------------------
In the confusion which reigns in the matter, several tendencies can be
distinguished which, in my opinion, can be summarized as follows.
In the first place, it should be observed that the possibility of extending
the exclusive fisheries zone beyond the territorial sea is practically
generally admitted. The resistance set up by some States to the 12-mile
rule is continually decreasing FN3. Writers in Europe and the United States
also recognize it as the maximum limit to the extension of the jurisdiction
of [p 87] coastal States. This tendency in favour of the 12-mile rule has
made it possible to say that the 12-mile limit appears to be "the magic
number" for the great majority of States FN1.
---------------------------------------------------------------------------------------------------------------------
FN3
Note however the protest by the United States against the declaration by
Canada extending its coastal zone to 12 miles (May 1970). Japan stated that
it did not recognize the 12-mile fishing zone, but in its agreement of 22
June 1965 with Korea is to be found reciprocal recognition of the 12-mile
zone.
FN1 Bouchez, "Some Basic Problems of Coastal State Jurisdiction and the
Future Conference on the Law of the Sea", Annals of International Studies,
Vol. IV, 1973, p. 155.
---------------------------------------------------------------------------------------------------------------------
In the other direction, it is apparent that the trend originating in Latin
America towards extending the zone of fisheries jurisdiction up to the
200-mile limit appears to be becoming more firmly established; in this
connection one might quote the Declaration of Montevideo of 8 May 1970, and
the declaration of Santo Domingo of 7 June 1972. This trend is spreading to
other continents. In the report of the Asian-African Legal Consultative
Committee on its 12th Session in Colombo (18-27 January 1971), it is said
that most of the delegations were ready to accept a 12-mile limit for the
territorial sea, but coupled with an affirmation of the rights of the
coastal State to claim exclusive jurisdiction over an adjacent zone for
economic purposes. See also the recommendations drafted at Yaounde (20-30
June 1972) FN2.
---------------------------------------------------------------------------------------------------------------------
FN2
It has been announced in the press that the 77 developing countries meeting
in Nairobi (Kenya) decided to defend the right to a 200 sea-mile limit for
coastal States at the United Nations Conference in Caracas.
---------------------------------------------------------------------------------------------------------------------
The seed sown by the Truman Proclamations is still bearing fruit, and it is
from them that innovating ideas continue to spring concerning the law of the
sea FN3.
---------------------------------------------------------------------------------------------------------------------
FN3
The tendency to extend fisheries zones in the interest of coastal
populations may also be observed in countries of the Western group.
The Senate and House of Representatives of Massachusetts, assembled in
General Court, authorized the Director of the Division of Marine Fisheries,
with the approval of the Governor, to extend jurisdiction up to 200 miles
for the purposes of conservation and protection of maritime resources
(Massachusetts, An Act Relative to the Territorial Waters of the
Commonwealth). In 1972, Congress of the State of Maine requested the
Secretary of State and the delegation to the United States Congress to
extend jurisdiction over fisheries to the whole extent of the continental
shelf (J. H. Samet and R. L. Fuerst, The Latin-American Approach to the Law
of the Sea, University of North Carolina, Sea Grant Publication, March 1973,
App. A and B, pp. 150-151). In the United States, there are conflicts
between the states and the Federal Government. New England is in favour of
an extension of jurisdiction to protect coastal fisheries. California
favours limiting jurisdiction, taking account of cod fishing in the high
seas. Military interests operate in favour of the 12-mile limit
(Hjertonsson, The New Law of the Sea, "Influence of the Latin American
States on Recent Developments of the Law of the Sea", Leiden-Stockholm,
1973, p. 96).
In Canada, the Governor is authorized to prescribe by Order in Council
fishing zones in areas of the sea adjacent to the coast of Canada (Law of 16
June 1970 amending the Law on the Territorial Sea and Fishery Zones, new
paras. 4 and 5A).
---------------------------------------------------------------------------------------------------------------------
The recognition of a third maritime zone, inserted between the territorial
sea and the high seas, is the basis of a new concept, that of the
patrimonial sea or economic zone. According to the Declaration of Santo
Domingo, the coastal State has sovereign rights over the renewable and
non-renewable natural resources which are found in the waters, in the
sea-bed and in the subsoil of an area adjacent to the territorial sea called
[p 88] the patrimonial sea; the area of the territorial sea and the
patrimonial sea, taking into account geographic circumstances, should not
exceed a maximum of 200 sea-miles.
In the Truman Proclamation, and at the 1958 Conference, reference was made
to the natural resources of the continental shelf over which it was
recognized that the coastal State had an exclusive right, in order to define
the scope thereof, with a view to respecting the freedom of fishing in the
high seas. At the present time, the reference to rights over natural
resources is taking a new turn. A point has been reached at which the right
of States is reaffirmed to permanent sovereignty over all the natural
resources of the sea-bed and subsoil within their national jurisdiction, and
in the superjacent waters. This is also what was said in General Assembly
resolution 3016 (XXVII), in a recommendation adopted by the Committee on
Natural Resources of the Economic and Social Council (Session of February
1973) and in a resolution of the Economic and Social Council (April-May
1973) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
The travaux preparatoires of the Caracas Conference should be taken into
account, though cum grano salis, as of assistance in ascertaining the
present tendencies amongst States; in addition they reveal the taking up of
positions with a view to the discussions during the Conference.
---------------------------------------------------------------------------------------------------------------------
It seems to me that with its Resolution of 1972, Iceland followed the same
tactics as those which had previously brought it success. It faced the
defendant State with a fait accompli, and did so in the conviction that the
development of the law of the sea is moving towards a justification of its
decision. Iceland may cherish the hope that the trends in favour of
extension of fisheries zones will obtain the support of the greater number
of States at the Caracas conference FN2.
---------------------------------------------------------------------------------------------------------------------
FN2
The Government of' the United Kingdom has explained, in its reply to a
question by a Member of the Court, that in para. 297 of its Memorial it
intended to make the point "that the forthcoming Third United Nations
Conference on the Law of the Sea may reveal whether a consensus can be
reached which will bring about a development in the law so as to permit the
kind of claim which Iceland is now making".
---------------------------------------------------------------------------------------------------------------------
IV. The Law to Be Applied
1. The complaint brought before the Court by the Applicant against Iceland
is that of having committed a breach of international law by unilaterally
extending its fisheries zone in 1972. The Exchange of Notes of 1961 contains
the provision by which Iceland reserved the possibility of extending its
fisheries zone in implementation of the Althing Resolution of 1959. But the
Applicant contends that the Resolution of 1972 conflicts with the law
established in 1961, and that Iceland cannot act in this way without proving
that the 12-mile rule is no longer in force (United Kingdom Memorial, para.
229; Federal Republic Memorial, Part IV, para. 60). Reference is also made
to the disregard by Iceland of "such long-established legal rights" of the
Applicant (United Kingdom Memorial, para. 229). [p 89]
In order to express my view in such a way as to avoid the difficulties
resulting from the lack of clarity of the Applicant's argument, it seems to
me to be as well to deal with the various issues one by one.
The established rights relied on are said to be based on "the existing law
and established legal rights" (ibid). The Respondent's rights have a
contractual basis, namely the exchange of Notes. The Respondent has acquired
rights, but rights which are subject to a pre-condition unspecified in point
of time (dies incertus an et incertus quando). The right of the Applicant is
an established right subject to a limitation, i.e., up to the date when
Iceland exercises the power it has reserved of extending its fisheries
jurisdiction. By exercising that power, Iceland does not infringe any
established right of the Applicant to respect by Iceland of the 12-mile
limit. The Applicant is entitled to appeal to the Court, but only on the
grounds that Iceland has not honoured its commitment to submit to the Court
the dispute concerning the extension.
Nor is it justified to refer to an established right under international law
in force in 1961. The situation existing in 1961 is not what is before the
Court. The act complained of by the Applicant is the 1972 Althing
Resolution, that is to say a different situation, that of an extension
which, although foreseen in 1961, was not effected until 1972. This is a new
fact, the legality of which must be considered solely at the time when it
occurs (tempus regit factum ). It is precisely that new fact with regard to
which it was provided that in case of dispute between the parties the matter
would be brought before the Court. The Applicant has no established right to
the extension being perpetually limited to 12 miles, on the basis of
international law in force in 1961 FN1.
--------------------------------------------------------------------------------------------------------------------- FN1
This appears to have been conceded by the Applicant when in its oral
statement it expressed the view that the 12-mile rule was hot yet in force
in 1961.
---------------------------------------------------------------------------------------------------------------------
2. The key argument of the Applicant is that the 12-mile rule is the
international law in force on the subject, because it has become a rule of
customary law, and also because it has not been abrogated by a contrary
custom. We must therefore consider whether the 12-mile rule amounts to a
rule of customary international law.
According to the communis opinio, a customary international right comes into
existence when a practice crystallizes which has the following
distinguishing marks:
(a) General or universal acceptance. There should be no doubt as to the
attitude of States. The rule in question must be generally known and
accepted expressly or tacitly. What has led to the view that international
custom is binding is that it expresses a consensus tacitus generalis, if not
as a sort of tacit agreement, at least as the expression of a general
conviction. For an international custom to come into existence, the fact
that a rule may be adopted by several States in their municipal legislation,
in treaties and conventions, or may be applied in arbitral decisions is not
sufficient, if other States adopt a [p 90] different rule, and it will not
be opposable to a State which still opposes its application (I.C.J. Reports
1951, p. 131). The existence of a majority trend, and even its acceptance in
an international convention, does not mean that the convention has caused
the rule to be crystallized or canonized as a rule of customary law (I.C.J.
Reports 1969, p. 41).
(b) Uniform practice. For a new rule of international law to be formed, the
practice of States, including those whose interests are specially affected,
must have been substantially or practically uniform (I.C.J. Reports 1951, p.
25; I.C.J. Reports 1951, pp. 116 and 131; I.C.J. Reports 1969, p. 42).
(c) A considerable period of time. It is time which ripens a practice and
transforms it into a custom. In the texts, such terms are used as
praescripta consuetudo, vetustas, per plurimos annos observata, diuturnis
moribus introductum, etc. The Court has recognized the possibility of some
relaxation of the requirement of a considerable length of time, but only on
condition that:
"State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in the sense
of the provision invoked;and should moreover have occurred in such a way
as to show a general recognition that a rule of law or legal obligation is
involved." (I.C.J. Reports 1969, p. 43; see also p. 45.)
(d) Opinio Juris
"Not only must the acts concerned amount to a settled practice, but they
must also be such, or carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule
of law requiring it . . . States . . . must therefore feel that they are
conforming to what amounts to a legal obligation." (I.C.J. Reports 1969, p.
44.)
Taking account of these conditions, we must consider whether the 12-mile
rule is in the nature of an international custom. In order to give an
unambiguous reply to this question it is necessary when putting it to make a
distinction between the two meanings which may be given to the expression
"12-mile rule".
(i) The 12-mile rule means that States can no longer object to another State
extending its fisheries jurisdiction zone to 12 miles.
(ii) The 12-mile rule means that States cannot extend their fishing zone
beyond 12 miles.
Her Majesty's Government seems to me to have given a proper reply to a
question put by Judge Sir Humphrey Waldock, when it was stated on its behalf
that: [p 91]
"It could not safely be said that the new rule had emerged until Japan, a
State whose interests were certainly specially affected in the meaning of
that principle, decided that it could not effectively challenge in law the
legislation of New Zealand and the United States. As from that moment, in
our submission, it was reasonable to maintain that, notwithstanding
continuing disagreement on the breadth of the territorial sea, there was
then by that stage a new rule of law to the effect that a coastal State was
entitled to an exclusive fishery limit of 12 miles." (CR 74/3, p. 40.)
This is quite correct, and it was possible to take the view that the
resistance of the countries which continued to oppose extension of exclusive
fisheries jurisdiction to 12 miles was overcome at that moment. For that
reason, it is possible to say that the 12-mile rule, with that meaning, has
become a customary rule.
But to concede the possibility that States might claim an exclusive
fisheries zone of 12 miles does not lead as a logical or necessary
consequence to the conclusion that "the figure of 12 miles was the correct
limit in accordance with international law for the purpose of defining the
zone in which the coastal State is entitled to exclusive fishery rights"
(ibid., p. 40). This statement is an answer to a different question, which
should be examined separately.
The question is as follows: is there an existing rule of customary law which
forbids States to extend their fisheries jurisdiction beyond 12 miles?
Before replying in the affirmative to this, it would be necessary to be
satisfied that such a rule meets the conditions required for the birth of an
international custom.
In Part III of the present opinion, which was devoted to the development of
the law of the sea with regard to fisheries, it was made clear that a
continually increasing number of countries do not agree to limit their
fisheries jurisdiction zone to 12 miles FN1. Before 1961, from the time of
the Truman Proclamations onwards, there were manifestations contrary to that
rule, in legislation, at Inter-American conferences, and in the discussions
of the International Law Commission FN2. Since 1961, and in particular in
1972, it is difficult to regard the trend in favour of the 12-mile rule as
supported by a majority. The 12-mile rule has at no time been accepted in a
general or universal way as fixing a maximum limit FN3.
--------------------------------------------------------------------------------------------------------------------- FN1
The 12-mile rule may on the other hand be regarded as applicable to the
limit of the territorial sea.
FN2 Quotations in Rojahn, Die Anspruche, p. 164.
FN3 On the present majority trend, see Stevenson, "Who is to Control the
Oceans: U.S. Policy in the 1973 Law of the Sea Conference", The
International Lawyer, VI, No. 3, July 1972.
---------------------------------------------------------------------------------------------------------------------
It should also be noted that before and after 1961, during the period which
may be regarded as that of the coming into existence of the rule, Iceland,
which is certainly a State whose interests are specially affected, made
known its opposition to the rule expressly and persistently FN4. [p 92]
According to the most authoritative writers, and following the doctrine of
the Court itself (I.C.J. Reports 1950, p. 65; I.C.J. Reports 1951, p. 131;
I.C. J. Reports 1969, p. 42, para. 73) the express will of a State during
such a period prevents the coming into existence of a custom. The majority
principle does not apply, even if a majority exists. To apply it would be
contrary to the principles of sovereignty and equality of States.
--------------------------------------------------------------------------------------------------------------------- FN4
Quotations in Rojalhn, "Die Fischereigrenze Islands vom 1 September 1972 im
Lichte rnaritimer Abgrenzungsprinzipien des Internationalen Gerichtshofes",
Archiv des Volkerrechts, Vol. XVI, No. I (1973), pp. 39, 41, 43, 47; see
also Nelson, "The Patrimonial Sea", International and Comparative Law
Quarterly, October 1973, p. 673, Note 29.
---------------------------------------------------------------------------------------------------------------------
In the 1961 Exchange of Notes, Iceland denies by implication that the
12-mile rule is a rule of customary international law limiting the extent of
the fishery zone. This is the meaning which should be attributed to the
direct reference to the 1959 Resolution and the indirect reference to the
1948 Law. A reservation was made in favour of a zone extending to the
boundary of the continental shelf. I do not consider that this reservation
should be interpreted as being subject to there being a change in
international law. There is only one limitation on the reservation made,
namely that in case of dispute as to the extension, the question was to be
brought before the Court. It may be supposed that the Icelandic Government
might have intended, as a matter of political prudence, to await the most
favourable moment from the point of view of international opinion in order
to carry out the announced extension, but that is another matter.
3. Nor do I consider that the authority of the 1958 conventions can be
invoked in favour of the 12-mile rule. Article 24 of the Convention on the
Territorial Sea and the Contiguous Zone mentions a limit of 12 miles for the
contiguous zone, but in four specific fields (customs, and fiscal,
immigration or sanitary regulations) and does not envisage fisheries. Nor
is this an oversight: the question of fisheries was in everyone's mind. This
is a case in which it may be well to apply the old adage inclusio unius
exclusio alterius.
Article 2 of the Convention on the High Seas has also been cited as evidence
that Iceland has violated, by its 1972 Resolution, the principle of freedom
of fishing in the high seas enshrined in Article 2 of the Convention on the
High Seas FN1*. It is true that in zones forming part of the high seas
"fishing . . . could only be shared and not exclusive" (separate opinion of
Sir Gerald Fitzmaurice, I.C.J. Reports 1973, p. 69, para. 5). But I am
afraid that to do no more than apply this criterion would be to beg the
question, because it would be to admit by implication that the extent of the
high seas was mathematically fixed by international law. But this is far
from being the case. The extent of the territorial sea has not been
established. The practice of States shows that the territorial sea has been
extended, for example, from 3 to 4 miles, or from 4 to 12 miles, on each
occasion at the expense of the high seas. Can it not be extended [p 93]
beyond 12 miles when circumstances or special reasons justify it? It should
also be observed that since the 1960 Conference on the Law of the Sea there
has been a. trend, which cannot be overlooked, toward recognition of a
third zone, between the territorial sea and the high seas, over which States
can claim a form of jurisdiction, without any pretension to sovereignty FN1.
Can this not be extended beyond 12 miles? While it does not seem necessary
to reply to these questions, it is difficult to see how the implementation
of the 1959 Althing Resolution, which was envisaged in the 1961 Exchange of
Notes, can in 1972 be contrary to international law vis-ΰ-vis the United
Kingdom, if it is not conceded that between 1961 and 1972 the 12-mile rule
entered customary law. Has the 12-mile rule, having found the door closed,
crept in by the window?
--------------------------------------------------------------------------------------------------------------------- FN1*
If the Icelandic Resolution of 1972 is open to criticism it is on the ground
that it is contrary to the Exchange of Notes, and has not been duly
justified.
FN1 This is recognized in the proposal to limit territorial waters to 6
miles and the zone of exclusive fishing rights to a further 6 miles.
---------------------------------------------------------------------------------------------------------------------
It seems to me also that it is not possible to base any useful argument
whatever on the Convention on the Continental Shelf, or on the comments on
it by the Court to the effect that the coastal State has "no jurisdiction
over the superjacent waters" of the continental shelf (I.C.J. Reports 1969,
p. 37, para. 59). The significance of these is that a State has no
jurisdiction over the superjacent waters by virtue of its rights over the
continental shelf, but this reservation concerns the regime of the
superjacent waters in so far as they appertain to the high seas, and not
the superjacent waters when they are regarded as territorial waters,
contiguous zone, or fishing zone subject to the jurisdiction of a State.
There are no well-founded arguments in favour of the binding character of
the 12-mile rule; those built upon ad hoc interpretations of articles in the
1958 conventions do not convince. The 1958 Conference failed in its attempt
to fix a limit to fisheries jurisdiction. How can one deduce from the
conventions what the parties to the Conference refused to say?
4. Another question should be examined, although it has not been raised by
the Applicant. The extension effected by Iceland in 1972 was disputed by the
United Kingdom and, in violation of the compromissory clause of the 1961
Exchange of Notes, Iceland has refused to appear before the Court. It should
be considered whether the consequence of Iceland having acted in this way is
that the extension which it has decreed is not opposable to the United
Kingdom, and whether the Court should confine itself to stating as much in
its Judgment.
I do not consider that this argument has a sound legal basis either in the
Parties' agreement, or in the Statute of the Court, or in the law of
treaties.
The 1961 Exchange of Notes recognized that Iceland had the power to extend
its fisheries jurisdiction on the sole condition that this was done in
implementation of the 1959 Althing Resolution. It was after the extension,
and if there should be a dispute between the Parties, that the question
could be brought before the Court. This was not a right conferred on the [p
94] United Kingdom; the question could be brought before the Court at the
request of either Party. Iceland could have done so, for example, if the
extension it had decided to make was disregarded by the Applicant, if,
instead of bringing the dispute before the Court, the Applicant had sent its
fleet to protect its fishing vessels. The Notes contain no penal clause or
clause providing any sanction if one of the Parties failed to appear.
The Statute of the Court (Art. 53.), in harmony with modern procedural law,
does not treat a party in default as guilty, and is far from regarding
failure to appear as a ficta confessio. The Court, using its own means, and
taking account of the facts of which it is aware and of the applicable law,
must ascertain whether the extension is valid or not and to what extent it
may be valid.
Finally, the Applicant does not raise the non-fulfilment of Iceland's duty
to submit the dispute to the Court as a ground for abrogation of the treaty,
and for its being absolved from its obligations toward Iceland; on the
contrary, the Applicant contends that the agreement is still in force.
5. I cannot see that there is any other customary rule fixing the extent of
the fishery zone. The 200-mile rule cannot be regarded as an accepted one,
and as thus conferring on States the right to extend their jurisdiction to
that extent. Despite the progress which it has made in recent years, it is
not marked either by the uniformity or the general acceptance which it would
require in order to be regarded as a customary rule, even of regional extent
FN1
--------------------------------------------------------------------------------------------------------------------- FN1
Garcia Amador observes that the differences relate to the very nature of the
claims, Latin-America and the Law of the Sea, University of Rhode Island,
Occasional Paper No. 14, 1972, p. 1. On the protests of States and of
writers, see Rojahn, "Zur zukunftigen Rechtsordnung des Festlandsockels und
der Fischerei auf dem Hohen Meer", Jahrbuch fur internationales Recht, Vol.
XV, 1971, p. 407.
---------------------------------------------------------------------------------------------------------------------
Against the contentions of the Applicant, Judge Padilla Nervo has argued
that:
"The progressive development of international law entails the recognition of
the concept of the patrimonial sea, which extends from the territorial
waters to a distance fixed by the coastal State concerned, in exercise of
its sovereign rights, for the purpose of protecting the resources on which
its economic development and the livelihood of its people depends."
(Dissenting opinion, I.C.J. Reports 1973, p. 41.)
The view of Judge Padilla Nervo must be rejected for several reasons. The
patrimonial sea is a compromise concept, which is worthy of consideration
but which does not meet the conditions required of a rule of law. The
countries represented at Santo Domingo did not claim that their proposal
concerning a zone of patrimonial sea should be applicable to all Latin
American States, or that it was generally favoured by them, but they
regarded it as a contribution to the working out of an eventual joint Latin
American formula FN2.
[p 95]
--------------------------------------------------------------------------------------------------------------------- FN2
Castaneda, "The Concept of Patrimonial Sea in International Law", Indian
Journal of International Law, Vol. 12, No. 4, October 1972, p. 538.
---------------------------------------------------------------------------------------------------------------------
Nor should it be overlooked that the task of encouraging the progressive
development of international law, for which the initiative belongs to the
General Assembly (United Nations Charter, Art. 13), was entrusted to the
International Law Commission (Statute of the Commission, Art. 15). The Court
is not a legislative body (I.C.J. Reports 1966, p. 48); its function is to
decide in accordance with international law such disputes as are submitted
to it (Statute, Art. 38).
Finally it should be observed that the question of the sovereign rights of
States as to the fixing of zones of jurisdiction has been badly expressed.
The Court has made clear what is truly within the national competence of
each State:
"The delimitation of sea areas has always an international aspect; it cannot
be dependent merely upon the will of the coastal State as expressed in its
municipal law. Although it is true that the act of delimitation is
necessarily a unilateral act, because only the coastal State is competent to
undertake it, the validity of the delimitation with regard to other States
depends upon international law." (I.C.J. Reports 1951, p. 132.)
6. Our examination of these questions up to this point leads to the
pessimistic conclusion that there is in international law no binding and
uniform rule fixing the maximum extent of the jurisdiction of States with
regard to fisheries. From this conclusion it has been deduced that there is
a legal vacuum, but in my opinion this deduction is not based on conclusive
reasons.
The Prime Minister of Iceland, adopting the same line as is to be found in
declarations by Latin American States, and the writings of authors from
those countries, has stated in a speech before the Icelandic Parliament:
"Since there are no generally agreed rules on the width of the territorial
limit in terms of international law, it must be in the power of every State
to decide its territorial limit within a reasonable distance." (Cited from a
pamphlet entitled Iceland and the Law of the Sea, issued by the Government
of Iceland in 1972, pp. 31-32; quotation in Part IV, para. 58, of the
Memorial of the Federal Republic of Germany.) FN1
------------------------------------------------------------------------------------------------------------ FN1
For quotations of Latin American writing in the same sense, see Rojahn, Die
Anspruche, p. 168. See also the statement by the Icelandic delegate in the
General Assembly on 17 December 1973 (quoted in CR 74/1, pp. 61-62).
------------------------------------------------------------------------------------------------------------
From an opposite point of view, and by way of reductio ad absurdum, it has
been said that:
"...so soon as it is admitted that international law governs the question of
the breadth of the territorial sea, it follows automatically that
international law must also prescribe a standard maximum [p 96] breadth,
universally valid and obligatory in principle ... If this is not so, then
international law would not govern the question of the extent of the
territorial sea . . ." (Fitzmaurice in XXXI BYIL, 1954, p. 386.)
It would of course be better for legal security if a mathematical rule
existed. But law also has "safety valve" rules, which provide flexibility in
the legal rules, and permit of more just solutions for individual cases to
be found at the expense of legal security (e.g., the concepts of good faith,
bonos mores, comitas gentium, misuse of right, droits de voisinage). In
another case which also concerned the delimitation of zones of jurisdiction
with regard to fisheries, the Court showed how it was necessary to take into
account considerations which: ". . . bring to light certain criteria which,
though not entirely precise, can provide courts with an adequate basis for
their decisions, which can be adapted to the diverse facts in question" and
for this purpose, there was:
"... one consideration not to be overlooked, the scope of which extends
beyond purely geographical factors: that of certain economic interests
peculiar to a region, the reality and importance of which are clearly
evidenced by a long usage" (I.C.J. Reports 1951, p. 133) FN1.
------------------------------------------------------------------------------------------------------------ FN1
It has been said with regard to this judgment that it contains implicit
recognition "of the futility of the quest for uniform rules to determine the
extent of exclusive fishery rights for wholly different situations". The
advice of the author of this comment is that to resolve the questions
arising in this field, efforts should be made to ensure "that the settlement
be as rational, equitable and expert as humanly possible". Douglas Johnston,
The International Law of Fisheries, Yale University Press, 1965, p. 248. The
conclusion of regional agreements is also to be recommended: see Vigne, Le
role des interκts economiques dans revolution du droit de la mer, Geneva,
1971, p. 119.
------------------------------------------------------------------------------------------------------------
The flexibility of a rule is not a reason for denying its existence. Failing
a rule for the mathematical delimitation of the zones, "there are still
rules and principles of law to be applied" (I.C.J. Reports 1969, p. 46,
para. 83).
The defeatist idea that the determination of fisheries jurisdiction zones is
a question of municipal law, within the national competence of each State,
must be rejected. It is contrary to the principle of the freedom of the high
seas, the principle which underlies the statement by the Court quoted above,
to the effect that the validity erga omnes of the delimitation of sea areas
is a matter of international law (I.C.J. Reports 1951, p. 132).
To leave to the unfettered will of each State the uncontrolled power to lay
down the limits of exclusive fishing zones is contrary to the spirit of
international law. The principle of equal rights of peoples (United Nations
Charter, Art. 1, para. 2) does not permit of the unilateral creation of
monopolies over zones of the high seas, at the expense of other States. [p
97]
It is generally conceded, even by the Latin American States, that the high
seas are free, and that freedom of fishing is one of the four freedoms of
the seas FN1.
--------------------------------------------------------------------------------------------------------------------- FN1
This is the principle enshrined in Articles 1 and 2 of the 1958 Geneva
Convention on the High Seas. This Convention lays down on this point general
principles of international law established long before their formulation in
the Convention (I.C.J. Reports 1969. p. 39, para. 65).
---------------------------------------------------------------------------------------------------------------------
The high seas are not res nullius to be appropriated by the first-comer, nor
by the most powerful FN2. They belong to the community of peoples, or to
mankind FN3. The high seas are regarded as res omnium communis, and the use
of them belongs equally to all peoples. The appropriation of an exclusive
fisheries zone in an area hitherto considered as part of the free seas is
equivalent to deprivation of other peoples of their rights. The extension of
its jurisdiction over the adjacent sea by a coastal State presupposes a
reduction of the freedom of fishing of other States, and such respective
increase and loss of power calls for legal justification. At all times,
States have endeavoured to justify their claims in one way or another.
According to Vattel (op. cit., above), there must be "some lawful end" for
the appropriation of something which is common property. Judge Alvarez
contended that States might alter the extent of the territorial sea
"provided that they furnish adequate grounds to justify the change"
(individual opinion, I.C.J. Reports 1951, p. 150) FN4.
--------------------------------------------------------------------------------------------------------------------- FN2
This is, I think, the general opinion. On the question of the nature of the
high seas, see Jenisch, Das Recht zur Vornahme militδrischer Ubungen und
Versuche auf Hoher See in Friedenszeiten, Hamburg, 1970, pp. 43-52.
FN3 General Assembly resolution 2749 (XXV) of 17 December 1970 refers in
paragraph 1 to the common heritage of mankind. On the idea of fishing zones
as "property devoted to a purpose" (Zweckvermogen) and relevant references,
see Rojahn, Die Anspruche, p. 171; on the concept of coastal nations as
trustees for the international community, see President Nixon's statement of
23 May 1970, quoted by Rojahn in "Zur zukunftigen", p. 425.
FN4 Quotations on the criterion of what is reasonable will be found in
Brownlie, pp. 196 and 215. The Prime Minister of Iceland has referred to
what is "reasonable" (Memorial of the Federal Republic of Germany, Part IV,
para. 58). See also I.C.J. Reports 1951, p. 131 "moderate and reasonable";
I.C.J. Reports 1969, pp. 52 and 54, paras. 98 and 101 (D) (3): "reasonable
degree of proportionality". But the criterion of what is reasonable should
be determined objectively.
---------------------------------------------------------------------------------------------------------------------
7. I think that the principle of the freedom of the high seas is as valid as
ever it was, but it does not operate in isolation, it must be applied in
accordance with existing circumstances and the views currently held. In the
time of Grotius, and up to the end of the Second World War, the principle
could be expressed in absolute terms; today, reality is otherwise, and
compels us to express it more moderately, and to harmonize it with other
secondary principles.
The case before the Court requires a just solution to be found to the
conflict which is emerging between the principle of the freedom of the high
seas with regard to fisheries, and the trends in favour of extension of the
zone of jurisdiction of coastal States. But for this purpose it should be
borne in mind that the Court does not have to decide a general and [p 98]
abstract question, but a dispute between two countries, for the settlement
of which the positions and relationships of the Parties should primarily be
considered.
The consideration of "the close dependence of the territorial sea upon the
land domain" (I.C.J. Reports 1951, p. 133) also underlies the recognized
extent of the new zone of fisheries jurisdiction. But the establishment of
jurisdiction over the fishing zones must be justified by the special
interest of the coastal State, and by the existence of reasons permitting of
the recognition that that State has preferential or priority rights.
The 1958 Conference recognized the concepts of "special interest",
"preferential requirements" and "just treatment" (Convention on Fishing and
Conservation of the Living Resources of the High Seas, Art. 6; Resolution on
Special Situations Relating to Coastal Fisheries). The scope of these
concepts is limited to fishery conservation, and the situation of countries
whose coastal population depends on fishing. At the 1960 Conference, Brazil,
Cuba and Uruguay proposed a text in which it was said that "the coastal
State has the faculty of claiming preferential fishing rights in any area of
the high seas adjacent to its exclusive fishing zone . . ."; this draft
furthermore almost obtained unanimity, but as has already been stated, it
failed to be adopted, along with the proposal by Canada and the United
States.
Although these concepts have not been enshrined in a convention, and despite
the restrictions subject to which they were advanced, in fact what is
happening to them is what happened to the Truman Proclamations, they are the
"starting point of the positive law on the subject" (I.C.J. Re-ports 1969,
pp. 32-33). They are accepted as something natural. As examples of this
development, one might mention the recommendation of the American Bar
Association of August 1964 (para. 1 (b), quoted by Johnston, op. cit., p.
252, note 346), the draft of the Inter-American Committee of 1956, the
Statement by President Nixon of 23 May 1970 (quotations in Rojahn, "Zur
zukunftigen", p. 412), and the proposal of the United States according to
Stevenson (loc. cit., pp. 469-470). In United Nations General Assembly
resolution 2750 C (XXV) of 17 December 1970, in which the subjects to be
dealt with by the Conference on the Law of the Sea are laid down, is
included the question of the preferential rights of coastal States. The
Government of the United Kingdom "accepts that the concept of preferential
fishing rights of coastal States and the spirit of the proposals embodied in
the three-Power amendment are applicable, are relevant, to the solution of
the present dispute" (CR 74/3, pp. 16-17) FN1.
--------------------------------------------------------------------------------------------------------------------- FN1
See also CR 74/1, pp. 82-83.
---------------------------------------------------------------------------------------------------------------------
Along with the special interest and the preferential rights of the coastal
State, account should be taken of the historic rights of the countries
concerned with high sea fishing. The acquisition of rights over the sea by
prescription is not admitted, but long usage should be respected, and [p 99]
that for the same reasons as for the interests of the coastal State. It is
contrary to the concept of justice to disregard situations which have been
established for years, the capital invested, the establishment of
industries, the protein needs of populations, and above all the confidence
inspired by a respect for the status quo concerning the use of the high seas
as common property.
8. The difficulties in the way of harmonizing these interests are not
insurmountable. This practical possibility of effecting a delimitation of
the respective rights is well demonstrated, for example, in the negotiations
with a view to fixing the different countries' fishing quotas in the
North-West Atlantic, and the agreements concerning fisheries in the region
of the Faroe Isles (CR 74/3, pp. 48-55).
The conduct of the parties results from recognition of their respective
interests. Study of the Exchanges of Notes of 1961, and the documents
supplementary thereto (the Resolutions of 1948 and 1959), shows that the
right unilaterally to declare an extension of jurisdiction, as reserved by
Iceland, is not an absolute right. It requires justification. Extension is
contemplated if it becomes necessary for reasons relating both to the
conservation of fisheries and the needs of the Icelandic people. That
reservation was accepted by the Applicant. Iceland for its part tacitly
recognized the historical rights of the Applicant in 1961 and in 1972. There
is thus mutual recognition of preferential rights and historic rights,
coinciding with the present trends in practice, and with what writers have
argued to be desirable.
In the North Sea Continental Shelf cases, the Court was in a situation which
was to some extent analagous to the present situation, inasmuch as there was
no mathematical rule to be applied to the delimitation of adjacent zones of
the continental shelf. It did not follow from a denial that the equidistance
rule was a legal rule that another "single equivalent rule" had to be found.
Failing a single rule enabling the areas to be delimited, the Court stated
that nonetheless "there are still rules and principles of law to be applied"
{I.C.J. Reports 1969, p. 46, para. 83).
When the General Assembly decided to convene the Conference on the Law of
the Sea, it said that its purpose would be "the establishment of an
equitable international regime" (resolution 2750 C (XXV) of 17 December
1970). The Court applies "equitable principles", which, "on a foundation of
very general precepts of justice and good faith" lead to actual rules of
law.
"It is not a question of applying equity simply as a matter of abstract
justice, but of applying a rule of law which itself requires the application
of equitable principles, in accordance with the ideas which have always
underlain the development of the legal regime of the continental shelf in
this field . . ." (I.C.J. Reports 1969, pp. 46-47, para. 85.)
There is no need to demonstrate and prove what is a matter of general [p
100] knowledge and general recognition, namely the changes which have
occurred in fishing techniques, the risk of exhaustion of fish stocks
resulting therefrom, and the increasing protein requirements of ever more
numerous populations.
9. It cannot be concealed that it is difficult to see how the concepts of
special rights, preferential rights and historic rights can be brought under
the heading of one of the sources of international law. It is not easy to
prove the existence of a general practice accepted as law, nor would these
concepts appear to form part of the general principles of law recognized by
civilized nations. But it does appear possible to overcome the difficulty
resulting from the unfortunate drafting of Article 38 of the Statute with
the assistance of the teachings of the most highly qualified writers. One
cannot make a sharp division between customary law and the principles of
law. At the origin of the modern doctrine, in the historical school to
which legal science owes the foundations of the theory of custom, they can
be seen to be closely united. Savigny teaches us that practice (usages) is
not the foundation of customary law, but that it is the sign by which the
existence of a custom may be known. The custom is produced by the community
of conviction, not by the will of men, whose acts only manifest this
community of ideas FN1. This observation is still of assistance. In order to
be binding as a legal rule, the general conviction (opinio communis) does
not have to fulfil all the conditions necessary for the emergence of a
custom. This is what explains the value of opinio juris, and why it may
confer on one single act the possibility of becoming "the starting point of
the positive law" (I.C.J. Reports 1969, pp. 32-33).
--------------------------------------------------------------------------------------------------------------------- FN1
Savigny, System des heutigen romischen Rechts (1840), 1, paras. 12 and 18.
Puchta, Pandekten, para. 12, Fifth Edition (1850), p. 19; Cursus der
Institutionen, 1, para. 13, Ninth Edition (1881), pp. 18 and 19. The Court
has referred to usages accepted as expressing principles of law: P.C.I.J.,
Series A, No. 10 (1927), p. 18.
---------------------------------------------------------------------------------------------------------------------
V. Procedural Questions
The Court is also faced with difficult questions of procedure. Should the
Court confine itself to upholding or rejecting the submissions of the
Applicant, or should it endeavour to do justice by deciding the question of
the extension?
The first difficulty lies in ascertaining the meaning of the compromissory
clause. The Court examined its history and its significance in the Judgment
of 2 February 1973 on jurisdiction. According to the documents known to the
Court, Iceland did not wish to be bound definitively and permanently by the
12-mile limit; it wished to preserve full freedom to extend its fisheries
jurisdiction and to implement the Althing Resolution of 1959 unilaterally.
The United Kingdom showed itself ready to accept [p 101] the reservation by
Iceland of this power to implement the Althing Resolution, on condition
that the extension was in accordance with an international agreement
embodying a generally accepted rule of law in relation to fishery limits, or
in conformity with a rule of international law, established by general
consent, which would permit such an extension (United Kingdom Memorial on
jurisdiction, para. 29).
The two Parties held tenaciously to their positions. The form proposed by
the United Kingdom might appear to reserve a right of veto in respect of any
future attempt to extend jurisdiction; the opposition of the United Kingdom
would be sufficient to prevent the emergence of a new general customary law
which would permit a further extension. On the other hand, it was very much
in Iceland's interests to preserve its freedom to extend its fishery zone,
and thus to be able to take advantage of the time which could be foreseen
when the trend in favour of the extension of the fisheries jurisdiction of
coastal States would have acquired sufficient momentum in general
opinionand it preferred arbitration to the jurisdiction of the Court.
The impossibility of reconciling such inconsistent points of view resulted
in the adoption of the neutral formula of the compromissory clause to which
the Parties agreed: "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."
The form of words adopted results from a compromise; neither of the Parties
succeeded in carrying its point, but both the terms and the object of the
clause appear to be clear: the Court has the mission of finding a solution
to the dispute which, it was to be feared, would arise as to the extension
of the fisheries zone.
Nevertheless, the interpretation of the clause may give rise to some doubts.
Does it limit the task of the Court to saying whether the extension effected
by Iceland is or is not in accordance with law? Is the role of the Court to
resolve the dispute by saying how far and subject to what con-ditions the
extension is in accordance with the law? On the second hypothesis, the Court
would have to examine the nature of the extension which was contemplated by
the Exchange of Notes of 1961 in relation to the Althing Resolution of 1959
and Law of 1958that is to say to take account of the special situation of
Iceland and its priority rights over the continental shelf.
In a separate opinion, Sir Gerald Fitzmaurice has said that: "The question
of conservation has therefore no relevance to the jurisdictional issue now
before the Court, which involves its competence to adjudicate upon the
dispute occasioned by Iceland's claim unilaterally to assert exclusive
jurisdiction for fishery purposes up to a distance of 50 nautical miles from
and around her coasts." (I.C.J. Reports 1973, pp. 26-27.) This [p 102]
observation, in my opinion, must be interpreted in relation to the Judgment
on the Court's jurisdiction, and not in relation to the phase of the
procedure concerning the merits. In that Judgment, the Court said that it
would "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" (ibid., p. 7, para. 11).
It will be as well to observe, all the same, that in that Judgment, the
Court recalled that in its Order of 17 August 1972 it had recognized the
exceptional dependence of Iceland on its fisheries, and 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 1973, p. 20, para. 41,
quoting I.C.J. Reports 1972, pp. 16 and 17).
"The meaning of the expression extension of fisheries 'jurisdiction' in the
compromissory clause must be sought in the context of this Althing
Resolution [that of 1959] and in the complete text of the 1961 Exchange of
Notes" (I.C.J. Reports 1973, p. 8, para. 14). It does not appear that the
jurisdiction of the Court should be confined to answering yes or no to the
claim made before it that the extension is contrary to existing
international law. The "matter" having been brought before the Court, the
Court must take cognizance of it as a whole and not in part. Once the Court
had declared in its Judgment that it had jurisdiction, it should not leave
the dispute open. It should seek a solution to the matter of the extension,
in accordance with such guidelines as may be deduced from the Exchange of
Notes of 1961 and the principles of law. That solution may well consist of
saying how far the extension is in accordance with law, and how it should be
corrected or rectified in order to be just and equitable.
The skilful way in which the Applicant has drafted its submissions has faced
the Court with another problem of procedural law. Should it confine itself
to replying to the claims expressed in the Application? A municipal tribunal
would be in a difficulty in view of the rule which forbids it to give
judgment ultra petita. But the function of the Court is wider, and is not
limited on grounds of pure form. The Court is not bound by the narrow rules
of the litis contestatio, especially when the Respondent fails to appear.
The jurisdiction of the Court results from the 1961 Exchange of Notes, and
not only from the will of the Applicant. The compromissory clause enables
the matter of the extension to be brought before the Court, so that it can
accomplish its function as principal judicial organ of the United Nations.
The function of the Court is to seek the solution of the dispute before it
(Charter, Arts. 33 and 95), and thus to contribute to the pacific settlement
of disputes between States. When one Party fails to appear, the other does
not have the power of narrowing down the role of the Court. [p 103]
VI. Equitable Solution
Is it open to the Court to find for itself an equitable solution? Is it
preferable for it to lay down guidelines so that the Parties can reach an
equitable agreement?
It is open to the Court, it seems to me, to take the initiative and examine
proprio motu the factual elements in the case. By making orders for the
conduct of the case, it can entrust qualified individuals or commissions
with the task of carrying out enquiries or giving expert opinions, before or
after the oral stage of the proceedings (Statute, Arts. 48 and 50). With
this information to hand, the Court would be able to balance the interests
involved and decide according to principles of equity FN1. This procedure
was not followed by the Court in 1969, and would not seem to be a wise
course today. Iceland, by failing to appear, persists in refusing to assist
the Court, and the Parties are either engaged in negotiation or have
expressed the intention of negotiating.
--------------------------------------------------------------------------------------------------------------------- FN1
The Court thought it appropriate to submit for expert opinion certain
figures and estimates of a technical nature (Corfu Channel, I.C.J. Reports
1949, p. 237), when Albania did not appear. However, the circumstances in
that case were quite different.
---------------------------------------------------------------------------------------------------------------------
The example of the 1969 Judgment should be followed; there are several
reasons for doing so. The Icelandic Law of 1948 makes an express reservation
for agreements with other countries to which Iceland was or might become a
party. In the Resolution adopted by the Althing on 15 February 1972 it was
stated that efforts to reach a solution of the problems connected with the
extension should be continued through discussions with the United Kingdom
and Federal Republic. The agreement of 13 November 1973 between the United
Kingdom and Iceland expresses the hope that the dispute will be terminated
by an agreement before the expiration of two years (13 November 1975). The
Government of the Federal Republic for its part has stated that the Court
cannot assume the role of a legislator for the better management of the
fishery resources of the oceans, and goes on:
"But the Court may be disposed, and this would certainly be within its
judicial functions in deciding the dispute between the Parties, to give the
Parties some guidance as to the principles which the Parties should take
into account in their negotiations for the most equitable management of the
fishery resources in the waters of the high seas around Iceland .. ."
(Memorial of the Federal Republic of Germany, Part IV, para. 149.)
In 1969 the Court stated that "in the matter of delimitation" there were
certain "basic legal notions", and continued:
"Those principles being that delimitation must be the object of agreement
between the States concerned, and that such agreement must be arrived at in
accordance with equitable principles. On a foundation of very general
precepts of Justice and good faith, actual [p 104] rules of law are here
involved which govern the delimitation of adjacent continental shelves."
(I.C.J. Reports 1969, pp. 46-47, para. 85.)
For the purposes of the case now before the Court, no mathematical rule can
be found which would enable the zone of exclusive fisheries jurisdiction to
be delimited, but it should be observed that guidelines do exist for
reaching an equitable delimitation. The special interest of Iceland in the
adoption of measures for conservation of fish in the zone of the continental
shelf, and in consideration being given in priority to the needs of its
population and its industry, is recognized. On the other hand, so far as
possible these rights must be reconciled with the historic interests or
rights of the Applicant. The actual catch potential of each Party, without
risk of exhaustion of the stock, must be considered. Provision should
therefore be made for reserved zones, catch quotas, limitation on number of
vessels, types of permitted vessels, size of mesh of nets, times of fishing,
transition period, periodic revision of agreements, etc.
The Court could, following the method of the 1969 Judgment, decide that the
Parties are under an obligation to continue negotiations in such a way that
"in the particular case, and taking all the circumstances into account,
equitable principles are applied" (I.C.J. Reports 1969, p. 47, para. 85).
This obligation to negotiate is "not only to enter into negotiations, but
also to pursue them as far as possible, with a view to concluding
agreements" (P.C.I.J., Series A/B, No. 42, 1931, p. 116a form of words
adopted in I.C.J. Reports 1969, p. 48, para. 87).
"As the Permanent Court of International Justice said in its Order of 19
August 1929 in the case of the Free Zones of Upper Savoy and the District of
Gex, the judicial settlement of international disputes 'is simply an
alternative to the direct and friendly settlement of such disputes between
the Parties' (P.C.I.J., Series A, No. 22, at p. 13)." (I.C.J. Reports 1969,
p. 47, para. 87.)
VII. The Submissions
I would add that the following points could well have been brought out in
the Judgment. The extension decided on by Iceland in 1972, to the extent
that it was intended to implement the 1959 Althing Resolution, was not in
itself invalid as against the United Kingdom. On the other hand, Iceland's
statement that it regarded the 1961 agreement as no longer in force was
invalid, for it was the validity of that agreement which entitled Iceland to
implement the 1959 Resolution. Once the dispute had been brought before the
Court, it was for the Court to decide on the validity of the extension; and
it was bound to do so taking into account the 1961 agreement, which bound
the Parties, and the law of the sea. It is for this end that the Court
should lay down guidelines to define the conditions on which the extension
may be regarded as legally justified.
(Signed) F. de Castro.
[p 105]
SEPARATE OPINION OF JUDGE SIR HUMPHREY WALDOCK
1. I am in general agreement with both the operative part and the reasoning
of the Judgment of the Court. As, however, there are some aspects of the
case which I consider should have received more prominence in the Judgment,
I feel it incumbent on me to deal with them in this separate opinion.
***
2. The Judgment refers to the Exchange of Notes of 11 March 1961 and draws
certain conclusions from it regarding the United Kingdom's recognition of
Iceland's exceptional dependence on coastal fisheries and regarding
Iceland's recognition of the United Kingdom's traditional fisheries in the
waters around Iceland. It does not, however, give the 1961 Exchange of Notes
the importance which, in my opinion, that agreement necessarily has as a
treaty establishing a particular legal regime governing the relations
between the parties with respect to fishing in those waters. The 1961
Exchange of Notes, which was negotiated and concluded immediately after the
Second United Nations Conference on the Law of the Sea had failed to resolve
the problem of fishery limits, had as its express object the settlement of
an existing fishery dispute between Iceland and the United Kingdom. This it
did upon terms which lay down specific rules to cover the case of a
subsequent claim by Iceland to extend her fishery jurisdiction beyond the
12-mile limit assented to by the United Kingdom in that agreement. The
result, in my view, is that the starting point for determining the rights
and obligations of the Parties in the present case has to be the 1961
Exchange of Notes which, by its Judgment of 2 February 1973, the Court has
held to be valid, in force and applicable to the extension of Iceland's
fishery jurisdiction now in question before the Court.
3. The 1961 Exchange of Notes has to be read in the light of the fishery
dispute which it was designed to settle. Under varying Icelandic fishery
limits, United Kingdom fishing vessels had fished in the waters around
Iceland for some centuries, before the conclusion of the Anglo-Danish
Fishery Convention of 24 June 1901. By that Convention Denmark, which was
then internationally responsible for the foreign relations of Iceland, in
effect agreed to apply to the waters around Iceland the pro-[p 106]visions
of the North Sea Fisheries Convention of 1882 regarding fishery limits and
the regulation of fisheries. In particular, Article 2 of the 1901 Convention
provided:
"The subjects of His Majesty the King of Denmark shall enjoy the exclusive
right of fishery within the distance of 3 miles from low-water mark along
the whole extent of the coasts of the said islands, as well as of the
dependent islets, rocks and banks.
As regards bays, the distance of 3 miles shall be measured from a straight
line drawn across the bay, in the part nearest the entrance, at the first
point where the width does not exceed 10 miles."
The Convention, which was subject to termination by either party on giving
two years' notice, remained in force until 3 October 1951, governing the
fishery relations between the United Kingdom and Iceland until that date.
Meanwhile, Iceland's separate international personality was being
increasingly recognized and she was separately represented at The Hague
Codification Conference of 1930 convened to codify, inter alia, the law of
territorial waters. At that Conference her delegate argued in favour of a
4-mile limit for Iceland as having a historical basis and being "a fair
limit, provided it were possible to have some rules for protecting the
fisheries in certain areas outside the territorial waters". The Conference
having failed to reach any agreement on the limit of the territorial sea,
British fishing vessels continued to fish in the waters around Iceland up to
the 3-mile limit under the 1901 Convention, even if at a very reduced rate
during the 1939-1945 War and immediately thereafter.
4. The end of the Second World War, however, proved to be a turning point in
the history of Icelandic fisheries. On 17 June 1944 the Althing proclaimed
the establishment of the Republic of Iceland and Iceland became fully
independent. The following year saw the issue by President Truman, on 28
September 1945, of two Proclamations claiming for the United States,
respectively, jurisdiction over the natural resources of the subsoil and
sea-bed of the continental shelf contiguous to the United States and the
right, either alone or together with other interested States, to establish
fishery conservation zones in areas of the high seas contiguous to its
coasts. The new doctrines advanced in these Proclamations, and especially
the invocation of the continental shelf as a legal concept, provided the
stimulus for a variety of new maritime claims in different countries,
including Iceland, where the public were already restive about the fishing
of foreign vessels up to three miles from their shores.
5. So it was that in 1948 the Althing passed a law entitled "Law Concerning
the Scientific Conservation of the Continental Shelf Fisher-[p 107]ies",
which included the following provisions:
"Article 1. The Ministry of Fisheries shall issue regulations establishing
explicitly bounded conservation zones within the limits of the continental
shelf of Iceland; wherein all fisheries shall be subject to Icelandic rules
and control; Provided that the conservation measures now in effect shall in
no way be reduced. The Ministry shall further issue the necessary
regulations for the protection of the fishing grounds within the said zones.
. .
Article 2. The regulations promulgated under Article 1 of the present law
shall be enforced only to the extent compatible with agreements with other
countries to which Iceland is or may become a party."
These provisions, if they may have owed some of their inspiration to the two
United States Proclamations, were not based on the same principle as either
of those Proclamations. The continental shelf Proclamation issued by
President Truman asserted a claim to jurisdiction and control over the
natural resources only of the subsoil and sea-bed of the continental shelf,
expressly declaring that it in no way affected the character as high seas
of the waters above it. Iceland's Law of 1948, on the other hand, asserted a
claim to be entitled to establish fishery conservation zones in the waters
of the high seas above her continental shelf and to exclusive jurisdiction
and control therein. Indeed, it was not until 1969 and by a quite separate
law that Iceland proclaimed her sovereign rights in respect of the natural
resources of the continental shelf itself (United Nations Legislative
Series, ST/LEG/SER.B/15, p. 364). Again, President Truman's fishery
Proclamation, unlike Iceland's Law of 1948, was not related to the
continental shelf and made explicit provision for the participation of
other States in the conservation measures.
6. Moreover, the Expose des Motifs accompanying the Law of 1948 made it
plain that, although expressed as essentially a conservation measure, the
Law was intended to be an enabling Act authorizing the Fisheries Ministry to
extend Iceland's fisheries jurisdiction over areas of the continental shelf
as and when the Ministry judged it appropriate (United Nations Legislative
Series, ST/LEG/SER.B/6, pp. 514-515). In the following year, on 3 October
1949, the Government of Iceland gave notice of her denunciation of the
Anglo-Danish Convention of 1901, with the result that the Convention, in
accordance with its terms, ceased to be in force two years later, i.e., on 3
October 1951. During that interval, in the course of the Anglo-Norwegian
Fisheries case, the United Kingdom had recognized Norway's historic claim to
a 4-mile territorial sea and the Court itself had endorsed the validity of
the system of straight baselines applied by Norway along the bays and islets
off the Norwegian coast (I.C.J. Reports 1951, pp. 126 and 132-139). Aware,
no doubt, of these [p 108] developments, Iceland early in 1952 informed the
United Kingdom of her intention to issue new fishery regulations in
pursuance of the. Law of 1948; and on 19 March of that year promulgated
regulations which provided for a fishery zone extending four miles to
seaward of straight baselines drawn along the outermost points of the
coasts, islands and rocks and across the openings of bays, and prohibited
all foreign fishing activities within that zone.
7. Iceland's 1952 Fisheries Regulations encountered protests from the United
Kingdom with respect to the 4-mile claim and certain of the straight
baselines, the compatibility of which with the principles laid down in the
Anglo-Norwegian Fisheries case it called into question. The fishing industry
in the United Kingdom also reacted against the new Regulations by trying to
prevent Icelandic vessels from landing their catches in the United Kingdom.
After various abortive attempts to solve the dispute, a modus vivendi was
reached in 1956, under the auspices of the Organization for European
Economic Co-operation. Under it there was to be no further extension of
Iceland's fishery limits pending the General Assembly's discussion of the
International Law Commission's report on the law of the sea, a discussion
which resulted in the convening at Geneva in 1958 of the first United
Nations Conference on the Law of the Sea.
8. The Conference, although it succeeded in adopting four major Conventions
on the Law of the Sea, failed to reach agreement either on the limit of the
territorial sea or on the extent of a State's exclusive fishery rights. On
these questions it had to content itself with recommending the convening of
a second Law of the Sea Conference specifically for the purpose of trying
to settle them. Even so, the Geneva Conference of 1958 was not without its
implications with regard to Iceland's fishery limits. Thus, by Articles 1
and 2 of the High Seas Convention, the Conference agreed that the high seas
comprise "all parts of the sea that are not included in the territorial sea
or in the internal waters of a State", and that the freedom of the high seas
comprises "inter alia, both for coastal and non-coastal States . . . Freedom
of fishing". By Articles 1 and 2 of the Continental Shelf Convention it
further agreed that the rights attaching to a coastal State in virtue of its
adjacent continental shelf relate solely to the natural resources of the
sea-bed and subsoil, including only such living resources as belong to
sedentary species; and that these rights of the coastal State "do not affect
the legal status of the superjacent waters as high seas". Clearly, Iceland's
claim in her Law of 1948 to be entitled to establish her fishery
jurisdiction over the waters of all her continental shelf did not find any
justification in these provisions of the High Seas and Continental Shelf
Conventions adopted by the 1958 Geneva Conference. [p 109]
9. Similarly, the Convention on Fishing and Conservation of the Living
Resources of the High Seas took a different approach to the conservation of
fishery resources outside the territorial sea from that of the Law of 1948.
Reflecting the approach of President Truman's fishery Proclamation rather
than of the Icelandic Law, the Geneva Conference recognized that "a coastal
State has a special interest in the maintenance of the productivity of the
living resources in any area of the high seas adjacent to its territorial
sea", but did not allow any exclusive rights of jurisdiction to coastal
States outside their territorial sea. Instead, it placed a general
obligation on non-coastal States to enter into negotiations with the
coastal State, at the latter's request, "with a view to prescribing by
agreement the measures necessary for the conservation of the living
resources of the high seas in that area" (emphasis added). True, if such
negotiations were requested by a coastal State and had not led to an
agreement within six months, the Convention empowered the coastal State to
adopt unilateral measures of conservation; but it did so only under strictly
circumscribed conditions and pending the settlement of any disagreement as
to their validity by a special commission. Thus, in this Convention the 1958
Conference left fishery conservation in waters outside the territorial sea
essentially a matter to be agreed between the coastal State and any other
States concerned and, in the event of disagreement, to be decided by an
independent commission. In consequence, Iceland's Law of 1948 could equally
not find its justification in the Convention on Fishing and Conservation of
the Living Resources of the High Seas.
10. In the Territorial Sea and Contiguous Zone Convention, the 1958
Conference settled the rules governing the baselines for delimiting the
territorial sea, and incorporated in them, subject to minor variations, the
straight baseline system sanctioned by the Court in the Anglo-Norwegian
Fisheries case. It also recognized that a coastal State has full sovereignty
and so, by implication, exclusive fishery rights within its territorial sea.
But it failed to reach agreement on the extent of the territorial sea,
though in prescribing that the contiguous zone may not extend beyond 12
miles from the baseline, it implied that a fortiori the territorial sea may
not extend beyond that limit. It follows that this Convention, like the
others adopted at the 1958 Conference, did not provide Iceland with a legal
basis for the continental shelf fisheries claim enunciated in her Law of
1948.
11. Two other developments at the 1958 Conference require to be noticed,
since they contributed to shaping the course of the present dispute. The
first is the emergence at the Conference of the concept of the preferential
position of a coastal State whose people are specially dependent upon
coastal fisheries. As paragraph 56 of the Judgment recalls, [p 110] although
an Icelandic proposal embodying this concept failed to obtain the necessary
majority, the Conference adopted a resolution concerning "the situation of
countries or territories whose people are overwhelmingly dependent on
coastal fisheries for their livelihood or economic development". This
resolution, entitled "Special Situations relating to Coastal Fisheries",
recognized that "such situations call for exceptional measures befitting
particular needs", and made the recommendations which are set out in that
paragraph of the Judgment. In such "special situations" the resolution in
effect advocated that, if catch-limitation becomes necessary for the purpose
of conservation, non-coastal States should collaborate with the coastal
State to establish agreed conservation measures which recognize such
preferential requirements of the latter as result from its dependence on the
fishery in question. Thus, even in the case of a State specially dependent
on coastal fisheries, like Iceland, the resolution did not envisage the
unilateral assumption of exclusive rights by the coastal State. On the other
hand, it clearly did envisage that they should have a certain preference in
the exploitation of the fisheries in adjacent areas of the high seas.
12. The other development of the 1958 Conference requiring to be noticed is
the ventilation first by Canada, and then by the United States, of the
concept of a contiguous zone of exclusive fisheries as a possible means of
compromising the differences between those who advocated a 3-mile
territorial sea and those who considered that a coastal State should be at
liberty to choose any breadth for the territorial sea up to 12 miles. At
this Conference the version of the compromise to attract most support was
that of the United States which provided for a 6-mile territorial sea and a
further 6-mile contiguous zone of exclusive fisheries, subject to the
proviso that States, the nationals of which had fished in the fishery zone
regularly for the past five years should have the right to continue to do
so. But the United States' proposal did not obtain the necessary two-thirds
majority in the voting and, as already indicated, no agreement was reached
at the Conference on the questions of the breadth of the territorial sea or
of the extent of a State's exclusive fishery rights.
13. Soon after the conclusion of the Conference, as the Judgment relates,
Iceland announced her intention to reserve exclusively for Icelandic
fishermen the right of fishing within 12 miles from her baselines and
further to expand her exclusive fishing zone by modifying those baselines;
and to this intention she gave effect by the issue on 30 June 1958 of new
"Regulations concerning the Fisheries Limits off Iceland". Article 1 of
these Regulations proclaimed a 12-mile fishery limit around Iceland drawn
from new baselines and Article 2 prohibited all fishing activities by
foreign vessels within the new fishery limit. The Regulations, as they
expressly stated, were issued under the power conferred on the Ministry of
Fisheries by the Althing in the Law of 1948 "Concerning the Scientific [p
111] Conservation of the Continental Shelf Fisheries". Their immediate
inspiration, however, seems to have been the trend at the 1958 Conference
towards allowing a 12-mile contiguous zone of exclusive fisheries as a
compromise to resolve the differences regarding the breadth of the
territorial sea.
14. The validity of the new Regulations was immediately challenged by the
United Kingdom and various attempts were made to settle the resulting
dispute by negotiation which, however, failed to produce any solution before
the second United Nations Conference on the Law of the Sea began in March
1960. During the course of these negotiations, on 5 May 1959, the Althing
passed a resolution which requires mention as it later became an element in
the 1961 Exchange of Notes. This resolution, inter alia, stated:
". . . the Althing declares that it considers that Iceland has an
indisputable right to fishery limits of 12 miles; that recognition should be
obtained of its rights 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 baselines around the country are out of the
question". (Emphasis added.)
The Althing thus made it clear that the 1958 Regulations asserting a claim
to a 12-mile fishery limit in no way implied any modification by Iceland of
her objective of extending her exclusive fishery zone over "the entire
continental shelf area".
15. The period between the 1958 and 1960 Conferences also saw the conclusion
of a fishery conservation convention by 14 States interested in the
fisheries of the North-East Atlantic. This was the North-East Atlantic
Fisheries Convention of 24 January 1959, which embraced the Icelandic area
and to which Iceland and the United Kingdom are parties FN1. The Convention
set up for the North-East Atlantic Area a regime for the conservation and
exploitation of fisheries, operated by a Fishery Commission and by Regional
Committees and similar to the regime created a decade earlier for the
North-West Atlantic by the North-West Atlantic Fishery Convention of 8
February 1949. The 1959 Convention is expressed to apply to all the waters
situated within the North-East Atlantic area, but under Article 2 nothing in
the Convention is to be "deemed to affect the rights, claims or views of any
contracting State in regard to the extent of jurisdiction over fisheries".
[p 112]
--------------------------------------------------------------------------------------------------------------------- FN1
As also is the Federal Republic of Germany, Applicant in the other Fisheries
Jurisdiction case now before the Court.
---------------------------------------------------------------------------------------------------------------------
16. The Second Conference on the Law of the Sea, held in Geneva in March and
April 1960, failed to reach agreement on what had become the twin questions
of the breadth of the territorial sea and the extent of exclusive fisheries.
At the Conference, attention again centred on the possibility of solving
these questions on the basis of a 6-mile territorial sea plus a further
6-mile contiguous zone of exclusive fisheries subject to a short phase-out
period for States having existing fisheries within the 6-mile contiguous
fishery zone. Moreover, it was a joint United States-Canadian proposal in
that form, providing for a 10-year phase-out period and also for
preferential fishing rights for a coastal State in a situation of special
dependence on adjacent fisheries, which was the text that paragraph 52 of
the Judgment refers to as having failed of adoption by only one vote.
***
17. Meanwhile, the dispute between the United Kingdom and Iceland concerning
both the 12-mile limit and the new baselines promulgated in the 1958
Regulations still subsisted; and they undertook a series of negotiations
from 1 October 1960 until the end of that year with a view to its
settlement. These negotiations, as was only to be expected, were conducted
by the Parties in the context not only of the previous history of the
dispute but of the comprehensive review of the law of the sea which had just
taken place at the first and second Geneva Conferences on the Law of the
Sea.
18. Thus, at the opening meeting on 1 October 1960 the Icelandic delegate
recalled the views expressed by Iceland at those Conferences. He stressed
that Iceland is in a unique position in that her people are dependent
entirely upon the coastal fisheries; that it was essential for her to
safeguard her coastal fisheries; that she did not consider conservation
measures alone to be sufficient and that it was therefore her policy to
secure exclusive jurisdiction "in accordance with international law". He
also referred to the fact that a 6 + 6 solution, with an adjustment period
of 10 years, had nearly been reached at the second Conference. He further
said that two proposals tabled by the Icelandic delegation had received
considerable support: namely, that countries in special situations should
receive preferential treatment even beyond 12 miles; and that a
tran-sitional period should not apply to special situation countries.
19. The United Kingdom, in its opening statement, also recalled the
compromise proposal of the United States and Canada for a 12-mile [p 113]
fishery limit, subject to a 10-year transitional period for States having
existing fisheries between the 6 and 12-mile limits. It observed that a
bilateral agreement had just been concluded between the United Kingdom and
Norway based upon that compromise proposal and subject to a 10-year
transitional period for United Kingdom fishing vessels. At the same time,
the United Kingdom reaffirmed its recognition of Iceland's special situation
as a country whose economy depends mainly upon its fisheries and conceded
that the United States-Canada formula would, for this reason, need to be
modified to take account of that factor. That modification, it suggested,
should be the reduction of the transitional period of United Kingdom fishing
from ten to five years.
20. The negotiations continued with proposals and counter-proposals from
each side. The Icelandic delegates insistently pressed for the reservation
to Icelandic fishermen of certain areas even outside the 12-mile limit as
being essential, in their view, to solve the problem of densely fished
areas. The United Kingdom delegation no less insistently contested that view
and objected that in the light of the scientific evidence concerning the
fisheries, the reservation of areas outside the 12-mile limit could not be
justified on grounds of conservation; while offering to examine together
with the Icelandic delegation any proposals for conservation measures in
particular areas or for policing regulations to avoid difficulties in any
areas of more dense fishing, they declined to accede to Iceland's demand for
reserved areas outside the 12-mile limit.
21. The compromise by which the dispute was ultimately settled in the 1961
Exchange of Notes is set out in paragraph 26 of the Judgment. In substance,
the Parties agreed to settle the dispute on the basis of: a 12-mile fishery
zone around Iceland; baselines as promulgated in the 1958 Regulations
subject to four modifications; a 3-year transitional period for United
Kingdom fishing between the 6-mile and 12-mile limits; exclusion of United
Kingdom fishing vessels from seven specified areas between the 6-mile and
12-mile limits; a clause providing for the con-tingency of any further
initiative taken by Iceland to extend her fishery jurisdiction in
implementation of the Althing Resolution of 5 May 1959. Thus, while
accepting the reduction of the transitional period still further from five
to three years as well as restrictions within the transitional zone even
during that period, the United Kingdom did not accept any Icelandic rights
of jurisdiction outside the 12-mile limit. On the contrary it made its whole
acceptance of the package settlement conditional upon Iceland's acceptance
of a provision regulating the position between the Parties in the event of
any future initiative taken by Iceland under the Althing Resolution of 5 May
1959 to extend her jurisdiction. It further emphasized that its acceptance
of the settlement was "in view of the [p 114] exceptional dependence of the
Icelandic nation upon coastal fisheries for their livelihood and economic
development".
22. Thus, whatever differences there may have been in the views of the two
countries regarding the applicable rule of general international law,
Iceland and the United Kingdom agreed in 1961 that the 12-mile limit, which
was the only fishery limit that had come near to general acceptance at the
1960 Conference, should thereafter constitute the limit of Iceland's fishery
jurisdiction as between themselves. They further agreed that this 12-mile
limit should remain in force between them unless and until an extension of
Iceland's fishery jurisdiction should become opposable to the United Kingdom
in accordance with the final clause in the Exchange of Notes which provided:
"The Icelandic Government will continue to work for the implementation of
the Althing Resolution of 5 May 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."
This clause, as the Court stressed in its Judgment on the jurisdiction of
the Court (I.C.J. Reports 1973, p. 3), is not a mere compromissory clause
ancillary to the main provisions of the agreement. It was a basic condition
of the settlement by which Iceland obtained the United Kingdom's recognition
of Iceland's 12-mile limit, her enlarged baselines, the brief three-year
transitional period and the exclusion of United Kingdom vessels from seven
areas even during the transitional period.
23. In that Judgment the Court traced the origins of the compromissory
clause in the negotiations leading up to the conclusion of the 1961 Exchange
of Notes (para. 18):
"The records of these negotiations which were drawn up by and have been
brought to the Court's attention by the Appplicant, 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." (Emphasis
added.) [p 115]
Having then traced the history of the drafting of the clause, the Court
concluded (paras. 21-23):
"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'.
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 . . .
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." (Emphasis added.)
This view of the compromissory clause, which I share, is amply justified by
the context of the clause in the settlement embodied in the 1961 Exchange of
Notes and by the record of the negotiations.
24. It follows, in my opinion, that under the very terms of the 1961
Exchange of Notes a subsequent extension by Iceland of her fishery
jurisdiction beyond the 12-mile limit agreed to in that treaty is not
opposable to the United Kingdom if that extension does not comply with the
conditions laid down in the compromissory clause. [p 116]
*
25. The principal facts relating to Iceland's subsequent extension of her
fishery jurisdiction to 50 miles are summarized in paragraphs 27-34 of the
Judgment. When Iceland made a public announcement of her intention to extend
her fishery limit to 50 miles from her baselines, she at the same time
announced that she considered the 1961 Exchange of Notes as "terminated". On
the United Kingdom's objecting that it considered Iceland's intended
extension of her fishery limit to have no basis in international law and
reminding her of the compromissory clause in the 1961 Exchange of Notes,
Iceland repeated her claim that the compromissory clause was no longer in
force. Similarly, when in an aide-memoire of 24 February 1972 Iceland gave
to the United Kingdom formal notice of her intention to proceed to the
extension of her fishery limit not later than 1 September of that year, she
reasserted her thesis that the provisions of the Exchange of Notes were "no
longer applicable" and "consequently terminated". Again, when on 14 April
1972 the United Kingdom filed an Application bringing the present case
before the Court, Iceland informed the Court, in a letter of 29 May 1972,
that the Agreement of 11 March 1961 was not of a permanent nature, that its
object and purpose had been fully achieved, and that it was no longer
applicable and had terminated; that there was on 14 April 1972 no basis
under the Statute for the Court to exercise jurisdiction; and that she was
not willing to confer jurisdiction on the Court and would not appoint an
agent. Furthermore, although the Court had not yet pronounced on its
jurisdiction, Iceland proceeded, on 14 July 1972, to issue new Regulations
extending her fishery limit to 50 miles as from 1 September of that year.
26. When the issue of the new Regulations led the United Kingdom to file a
request for the indication of interim measures of protection, Iceland in a
telegram to the Court of 29 July 1972 reiterated her view that there was no
basis for the exercise of the Court's jurisdiction in the case, asserted
that there was consequently no basis either for the request for an
indication of interim measures and took no part in the proceedings. On 17
August 1972 the Court made its Order for interim measures in which, inter
alia, it indicated that, pending its final decision in the pro-ceedings,
Iceland should refrain from taking any measures to enforce the Regulations
of 14 July 1972 against vessels registered in the United Kingdom and engaged
in fishing activities in the waters around Iceland outside the 12-mile
fishery zone. Notwithstanding this Order of the Court, however, Iceland
proceeded to enforce her new Regulations against United Kingdom vessels as
soon as they came into effect on 1 September 1972. In a Note of 28 August
1972 to the United Kingdom, Iceland explained that she did not consider the
Order to be binding upon her "since the Court has no jurisdiction in the
matter".
27. So long as Iceland's claim, that the 1961 Exchange of Notes was [p 117]
no longer applicable between her and the United Kingdom, remained undecided,
the question whether the enforcement of her new Regulations against the
United Kingdom violated that agreement could perhaps be considered as being
in doubt. In its Judgment of 2 February 1973, however, the Court rejected
seriatim all Iceland's objections to the application of the 1961 Exchange
of Notes to the present dispute and upheld its jurisdiction to pronounce
upon the merits. That Judgment, as Iceland could not fail to be aware, was
binding upon her under Article 36, paragraph 6, of the Statute of the Court
and res judicata for the purposes of the present case. Yet, even after the
handing down of that Judgment, Iceland persisted in her efforts to enforce
the new 50-mile limit against United Kingdom vessels and, as is evidenced by
her telegram to the Court of 14 January 1974, in denying the Court's
competence to adjudicate upon the dispute. Whatever may have been the
considerations that led Iceland to repudiate her obligations under the
compromissory clause of the 1961 Exchange of Notes, the clear implication of
the Court's Judgment of 2 February 1973 is that she lacked any legal
justification for thus attempting to revoke the assurance which she had
given to the United Kingdom in that Agreement.
*
28. The comprehensive character of Iceland's repudiation of the assurance
which she had given in the 1961 Exchange of Notes needs little emphasis in
the light of the facts recited above. By denying the Court's competence to
decide the dispute in relation to the extension of her fishery jurisdiction,
by denying the Court's power to indicate interim measures and by
disregarding the Court's Order indicating that she should refrain from
taking measures to enforce the extension against United Kingdom vessels
pendente lite, Iceland in effect tore up the assurance which she had given
in 1961 and sought unilaterally to impose the new extension upon the United
Kingdom. It follows that Iceland's extension of her fishery jurisdiction
promulgated in 1972 does not comply with the conditions laid down in the
compromissory clause of the 1961 Exchange of Notes. It further follows, in
my opinion, that the extension is not opposable to the United Kingdom in the
present proceedings.
29. It is true that the object of the compromissory clause was to enable
either Party, and more especially the United Kingdom, to have the question
of the validity of any further extension of Iceland's fishery jurisdiction
determined by the Court; and that, as the records of the negotiations show,
the clause was directed to the possibility of some future development in
maritime international law. It is also true that the United Kingdom has
invoked the clause and asked for a determination of the invalidity of the
new extension under maritime international law; [p 118] and that the Court
has upheld its jurisdiction to pronounce upon the merits. In my opinion,
however, Iceland's repudiation of the compromissory clause, and of the
assurance which she thereby gave in the 1961 Exchange of Notes, constitutes
an initial and conclusive ground of the invalidity of the extension as
against the United Kingdom. To decide otherwise would be to give Iceland the
benefit of her own wrong by leaving the question of invalidity open before
the Court. At the same time, by giving effect to this initial ground of
invalidity, which derives from general principles of international law, the
Court would be fulfilling the object of the compromissory clause, no less
than by pronouncing upon the validity of the extension under maritime
international law.
30. Consequently, I do not think that it would be correct to regard
Iceland's total refusal of the Court's jurisdiction as having the effect
only of exposing her to a judgment in default of appearance under Article 53
of the Statute. To attribute to it so limited an effect would not, in my
view, be consistent with the object of the compromissory clause or
compatible with the Court's finding that the assurance given to the United
Kingdom in the clause was intended to be not merely a "severable condition"
but a "sine qua non of the whole agreement". The compromis-sory clause, it
follows from that finding, is an integral part of the law applicable between
Iceland and the United Kingdom with regard to an extension of Iceland's
fishery jurisdiction, and, as such, is also part of the law to be applied by
the Court in deciding upon the validity of such an extension.
31. Accordingly, in my opinion, Iceland's total repudiation of the assurance
which she gave in the 1961 Exchange of Notes constitutes an additional, and
quite fundamental, ground for finding that Iceland's extension of the
fishery jurisdiction in 1972 is not opposable to the United Kingdom in the
present proceedings. That in itself would, I think, suffice to justify the
Court in upholding the second and third submissions of the United Kingdom.
Unlike the first submission which asks the Court to declare the extension to
be without foundation in international law and invalid erga omnes, these two
submissions specifically challenge Iceland's right to assert an exclusive
fisheries jurisdiction, as against the United, Kingdom, beyond the limits
agreed to in the Exchange of Notes of 1961. At the public sitting of 29
March 1974, in reply to a question from a Member of the Court, counsel for
the United Kingdom explained that the first three submissions of the United
Kingdom are not so connected that the second and third cannot stand without
the first, and that it is therefore open to the Court to adjudicate on the
second and third without adjudicating upon the first. Nor does counsel seem
to have intended to modify that statement when he added: "it being, of
course, understood and accepted that submissions (b) and (c) are based on
general international law and are, of course, not confined merely to the
effect of the Exchange of Notes". General international law, no doubt, forms
an element in the second and third submissions since it is the United
Kingdom's thesis that the 12-mile [p 119] limit agreed to in 1961 is at the
same time the generally accepted limit of exclusive fishery jurisdiction.
But what differentiates these submissions from the first submission is the
express reliance which they place on the agreement between the Parties in
the 1961 Exchange of Notes regarding a 12-mile fishery limit around Iceland.
32. My view therefore is that, in addition to the reasons given in the
Judgment, Iceland's repudiation of her obligations under the 1961 Exchange
of Notes would in itself suffice to justify subparagraphs 1 and 2 of the
operative part of the Judgment which in effect upheld the second and third
of the United Kingdom's final submissions.
**
33. As to the first submission, it follows that I agree with the Court that
for the purposes of the present Judgment it is not, strictly speaking,
necessary to pronounce upon the question raised by that submission, namely,
whether the extension of Iceland's fishery limit to 50 miles is without
foundation in international law and is invalid. Framed in that way, the
submission appears to ask the Court to hold that the extension was ipso
jure illegal and therefore invalid erga omnes; and this view of the
submission is confirmed by the statement of counsel at the public sitting on
25 March 1974 when, inter alia, he said: "This answers the question whether
an extension of an exclusive fisheries zone beyond 12 miles would be
illegal, it would." Although I consider that Iceland's extension of her
fishery limit beyond the 12-mile limit agreed to in 1961 would not be
opposable to the United Kingdom under general international law as well as
under the Exchanges of Notes, I should have more hesitation in upholding the
proposition advanced in the first submission. The reason is that it does not
seem to me to formulate the issue in the manner in which it presents itself
in modern maritime international law.
34. After the failure of The Hague Codification Conference of 1930 to
establish the 3-mile limit as a universal rule and obligatory limit for the
breadth of the territorial sea, the question arose as to what, if any, is
the rule of international law concerning the breadth of the territorial sea.
The prevailing opinion was that, after the failure of the Conference, the
3-mile limit remained a limit which could be said to be generally accepted
and, therefore, ipso jure, valid and enforceable against any other State;
but that a claim in excess of that limit could no longer be said to be ipso
jure contrary to international law and invalid erga omnes; and that the
validity of such a claim as against another State would depend on whether it
was accepted or acquiesced in by that State (cf. G. Gidel, Droit
international public de la mer, 1934, Vol. 3, pp. 134-135). [p 120]
35. Since 1930 a considerable number of new claims to maritime jurisdiction
have been advanced by coastal States, whether to a larger territorial sea
or to other forms of maritime jurisdiction. In the absence of clearly
established general rules, the legal issue has continued to present itself
in terms of the opposability of the claim to each other State rather than of
the absolute legality or illegality of the claim erga omnes; in other words,
in terms of the acceptance or acquiescence of other States. At the two
Geneva Conferences on the Law of the Sea of 1958 and 1960 the 12-mile limit
figured prominently in the debates both with respect to the breadth of the
territorial sea and the extent of the exclusive fishery zone, though adopted
at those Conferences in regard to neither. In fisheries, as paragraph 52 of
the Judgment relates, the law evolved through State practice and a coastal
State's right to an exclusive fishery zone up to 12 miles from its baselines
appears to have become generally accepted. Larger claims have certainly been
advanced by individual States and the third United Nations Law of the Sea
Conference is already in session. But these larger claims, while accepted by
some States, are rejected by others and beyond the 12-mile limit general
acceptance does not exist, nor, as paragraph 53 of the Judgment observes,
can the Court anticipate the law before the legislator has laid it down.
Therefore, an extension of fisheries jurisdiction beyond 12 miles is not, in
my opinion, opposable to another State unless shown to have been accepted or
acquiesced in by that State.
36. In the present instance, Iceland's unilateral extension of her
exclusive fishery limits from 12 to 50 miles as from 1 September 1972 was
at once objected to by the United Kingdom. Consequently, if it were
necessary to rest the Judgment on this point, I would consider the Court
justified in holding that Iceland's extension of her fishery jurisdiction
beyond the 12-mile limit agreed to in the 1961 Exchange of Notes is also not
opposable to the United Kingdom under general international law.
***
37. The Judgment, however, lays the emphasis on Iceland's obligation to
respect the United Kingdom's existing fishing rights, the United Kingdom's
obligation, in turn, to respect Iceland's preferential rights as a coastal
State specially dependent on the fisheries in adjacent waters, the resulting
obligation of both countries to undertake negotiations in good faith for the
equitable solution of their differences regarding their respective fishing
rights and their duty to examine together such measures as may be required
for the conservation and development and equitable exploitation of the
fishery resources in the disputed waters. On this aspect [p 121] of the case
I need only add a few observations regarding the competence of the Court
under the compromissory clause to adjudicate upon these issues, a question
which is examined in paragraphs 43-48 of the Judgment. 1 fully subscribe to
the reasoning developed in those paragraphs which I believe to be borne out
by the records of both the negotiations leading to the conclusion of the
1961 Exchange of Notes and of the dispute concerning Iceland's extension of
her fishery jurisdiction to 50 miles.
38. Even the brief account of the 1960 negotiations given in paragraphs
18-22 of this opinion shows that preferential rights, conservation and the
traditional fishing rights of the United Kingdom were very much a subject
of the differences between the Parties in those negotiations. The opening
statements of either side on 1 October 1960 set the framework for the
negotiations, and it is clear that from the outset Iceland invoked her
exceptional dependence on her coastal fisheries, referring specifically to
her proposal at the 1960 Conference that countries in special situations
should receive preferential treatment even beyond 12 miles. The United
Kingdom, on the other hand, while acceding to Iceland's claim to be a
"special situation" country, took a quite different view of the preferential
treatment to which Iceland was entitled in virtue of her special situation;
for it took the position that this might entitle Iceland merely to a
reduction of the phase-out period for British vessels. In subsequent
meetings the Icelandic delegation fought hard for areas to be entirely
reserved to Icelandic fishermen outside the 12-mile limit; so much so that
those areas were referred to at the meeting of 5 October 1960 as a more or
less continuous belt of water around the Icelandic coast. Indeed, the
Icelandic delegation seems to have suggested that this might actually
amount to a further belt of 12 miles from which all United Kingdom fishing
should be excluded. The response of the United Kingdom delegation was that
this could not conceivably be justified either on grounds of conservation or
on practical grounds of density of fishing.
39. In short, running through the negotiations were arguments concerning
preferential treatment, reserved areas outside the 12-mile limit,
conservation and dense fishing. It was in this context and in face of the
constant pressure of the Icelandic delegation for reserved areas outside the
12-mile limit, as well as in the context of Iceland's declared policy of
seeking to extend her fishery jurisdiction over the whole continental shelf,
that the United Kingdom delegation raised the question of a guarantee
against a further extension of Iceland's fishery jurisdiction except in
conformity with international law. Indeed, when the question of a gua-[p
122]rantee was first raised at the meeting of 5 October 1960, it was in the
context of a discussion as to what would be the position after the
transitional period in regard to the reserved areas outside the 12-mile
limit which had been demanded by Iceland.
40. It is true that the guarantee soon assumed a broader aspect in the
discussions and was then expressed to provide an assurance against the
exclusion of United Kingdom vessels from any area outside the 12-mile limit
except in conformity with a generally accepted rule of international law. In
other formulations it was referred to as an assurance against any extension
of Iceland's "fishery limits", but in its final version it was expressed in
the entirely general form "extension of fisheries jurisdiction around
Iceland" and linked to the Althing Resolution of 5 May 1959 concerning
Iceland's policy of seeking recognition of her "rights" to the whole
continental shelf. That Resolution was itself linked to Iceland's 1948 "Law
concerning the Scientific Conservation of the Continental Shelf Fisheries"
which, although expressed simply as a conservation measure, was an
"enabling" Act authorizing the fisheries minister to extend Iceland's
fisheries jurisdiction over areas of the continental shelf as and when he
judged it appropriate (see paras. 5 and 6 of this opinion).
41. Although Iceland's primary objective has, no doubt, been to extend her
exclusive fishery rights over more and more areas of the continental shelf,
it does not seem to me justifiable to regard either the Law of 1948 or the
Althing Resolution of 1959 as relating only to extensions of Iceland's
exclusive fishery limits as the means for expanding her claims to the
fishery resources of the continental shelf. Quite apart from the express
reference to "conservation" as the motif for the Law of 1948, it is clear
not only from the proceedings of the 1958 and 1960 Conferences but also from
the records of the 1960 negotiations that Iceland was ready to make use of
any concept, and especially those of "preferential rights" and "conservation
zones" as a means of furthering her fisheries objectives. Consequently, in
my opinion, it would be altogether too narrow an interpretation of the
compromissory clause to interpret the reference in it to the Althing
Resolution of 1959 as confining the Court's competence to a dispute in
relation to an extension of Iceland's exclusive fishery limits and nothing
else. The compromissory clause itself does not refer to an extension of
fishery limits but to an extension of fishery jurisdiction, a term apt to
cover any form of an attempt by Iceland to extend her authority over
fisheries outside the 12-mile limit. [p 123]
42. In addition, as I have indicated, such a narrow interpretation does not
seem consistent with the travaux preparatoires of the compromissory clause.
Equally, it does not seem to me consistent with the Court's conclusion, in
its Judgment of 2 February 1973, that:
". .. the real intention of the parties was to give the United Kingdom
Government an effective assurance ... : 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 . . ."
(I.C.J. Reports 1973, p. 13, para. 23; emphasis added).
If, instead of extending her exclusive fishery limit pure and simple,
Iceland had introduced measures greatly to restrict, or render
unprofitable, foreign fishing but in the guise of a "preferential" or
"conservation" regime, it would make nonsense of the "effective
assurance"the "sine qua non of the whole agreement" in the Exchange of
Notesto interpret it as not covering such measures. Nor should it be
overlooked that the "extension of fisheries jurisdiction" effected by
Iceland's 1972 Regulations was in fact expressed in those Regulations to be
an application of the Law of 1948 concerning "Scientific Conservation of the
Continental Shelf Fisheries". Consequently, it seems to me evident that the
Court's competence must be understood as covering questions of preferential
rights and conservation, and more especially when raised in direct
connection with a dispute in relation to an extension of Iceland's zone of
exclusive fisheries.
*
43. There remains, however, the question whether the present "dispute" does
involve the questions of preferential rights and conservation. I share the
view of the Court that, although occasioned by Iceland's unilateral
extension of her fishery jurisdiction, the present dispute at the same time
clearly includes differences regarding those matters. This seems to me
sufficiently established by the account of the dispute given in paragraphs
17-29 of the United Kingdom's Memorial on the merits which show that the
differences between the Parties were not limited to the question of the
validity of the extension of the exclusive fishery zone, as such, but
involved Iceland's claims to exclusive fishery limits by reason of her right
to preferential treatment and her claims to be entitled to take unilateral
conservation measures.
44. Thus, in the very first explanation of the extension offered by the
Icelandic Government, in an aide-memoire of 31 August 1971 (Annex 3 of the
Memorial on the merits), it justified the measure by reference to [p 124]
its need to maintain the resources of the sea and to "measures of
protection essential to safeguard the vital interests of the Icelandic
people in the seas surrounding its coasts". Moreover it reiterated this
justification in an aide-memoire of 24 February 1972, enclosing a Memorandum
entitled Fisheries Jurisdiction in Iceland and containing material designed
to support that justification. The United Kingdom objected that an extension
of the exclusive fishery limit was not a necessary means of achieving
conservation and offered to examine with Iceland agreed catch-limitation
schemes in areas outside the 12-mile zone. Iceland disputed the efficacy of
multilateral conservation measures, now arguing that the problem was not
one of conservation but of division of stocks. The United Kingdom objected
that it had fishing rights in the waters around Iceland which were firmly
based on traditional use, specific agreement and customary law. It repeated
its catch-limitation proposal, referring in this connection to the
North-East Atlantic Fisheries Commission and reminding Iceland that under
the Special Situations Resolution of 26 April 1958 any such catch-limitation
arrangement would have to recognize any preferential rights of the coastal
State resulting from its dependence on the fisheries concerned. As to the
question of preferential rights, it is true that Iceland showed some
tendency to invoke a trend in favour of according priority rights to
coastal States in general and not merely in special situations. But, that
the dispute involved Iceland's claim to preferential rights is further
evidenced by her Note of 11 August 1972 to the United Kingdom (Annex 10 of
the Memorial on the merits); for the Icelandic Government there recalled:
"In the discussions between representatives of the Icelandic and British
Governments in July 1972 on the question of fisheries limits the Icelandic
side made quite clear its willingness to continue the discussions.
The Icelandic representatives laid main emphasis on receiving from the
British side positive replies to two fundamental points:
1. Recognition of preferential rights for Icelandic vessels as to fishing
outside the 12-mile limit.
2. That Icelandic authorities should have full rights and be in a position
to enforce the regulations established with regard to fishing inside the
50-mile limit."
In that Note, it is true, Iceland was thinking in terms only of an interim
agreement regarding United Kingdom fishing, but it shows that "pre-[p
125]ferential rights" were very much part of Iceland's armoury of legal
argument in the dispute.
45. A "dispute", as has frequently been said both by the Permanent Court of
Internationa! Justice and by this Court FN1, is: "a disagreement on a point
of law or fact, a conflict of legal views or of interests between two
persons." In the present instance it seems to me clear that the
"dis-agreement on a point of law" and the "conflict of legal views or of
interests", though occasioned by Iceland's extension of her fishery limit,
included disagreements and conflicts as to whether Iceland's right to
preferential treatment entitled her to exclusive fishery rights, whether
exclusive rights may be claimed in the name of conservation, whether
conservation measures may be taken unilaterally and whether Iceland's claims
should prevail over the United Kingdom's traditional rights in the waters in
dispute. Accordingly, I think the Court fully justified in concluding that
these issues form an integral part of a dispute in relation to an extension
of fisheries jurisdiction around Iceland within the meaning of the
compromissory clause.
--------------------------------------------------------------------------------------------------------------------- FN1
E.g., Mavrommatis Palestine Concessions case, P.C.I.J., Series A, No. 2, at
p. 11; Right of Passage over Indian Territory case, I.C.J. Reports 1960 at
p. 34.
---------------------------------------------------------------------------------------------------------------------
46. As to the question of the Court's competence in the event of the failure
of the parties to resolve the dispute by negotiation or other means of their
own choice, I agree with the Court that this question is hypothetical and
does not call for its consideration in the present proceedings. Under
Article 60 of the Statute the Judgment is "final and without appeal". It
thus constitutes a final disposal of the case brought before the Court by
the Application of 14 April 1972, subject only to the right reserved to any
party by that Article to request the Court to construe the Judgment in the
event of a dispute as to its meaning or scope. Consequently, should some
other dispute between the parties as to their respective fishery rights in
the waters around Iceland be brought before the Court unilaterally by either
of them it would be for the Court, in the light of the particular
circumstances of that dispute, then to determine its jurisdiction to
entertain the case and the validity of any objections that might then be
raised to the exercise of its jurisdiction.
(Signed) H. Waldock.
[p126]
DISSENTING OPINION OF JUDGE GROS
[Translation ]
I consider that Iceland's claim to establish an exclusive fishing zone over
the superjacent waters of the continental shelf is contrary to the rules of
international law, but the reasoning which leads me to that opinion, and my
analysis of the dispute itself, are different from what is contained in the
Judgment, from both the reasoning and the decision of the Court; a judgment
of the Court comprises the reasoning part and the operative clause, and to
understand the scope of the judgment it is not possible to separate either
of these elements from the other, and an elliptical operative clause only
reveals its meaning when read with the reasoning leading up to it. Adapting
myself to the method adopted by the Court, I have cast a negative vote on
the questions which it has selected; I must explain how I understood the
Court's mission in the present case, the meaning of the question put to it,
the answer to be given thereto, and thus the reasons supporting my
dissenting opinion.
1. The first question which was raised for the Court in this merits-phase of
the case was to determine what its task was. The Court has recognized in its
Judgment of 2 February 1973 on jurisdiction that the Exchange of Notes of 11
March 1961 contained in its penultimate paragraph, a "compromissory clause"
which conferred jurisdiction on the Court to give judgment in any dispute
which might arise concerning the extension of fisheries jurisdiction around
Iceland. Examination of that agreement and of the negotiations which led up
to its being concluded leads me to an interpretation different from that in
the Judgment as to the definition of the disputes which could be brought
before the Court.
2. The basic principle of the Court's jurisdiction is the acceptance of that
jurisdiction by the Parties; whether what is in question is a compromissory
clause providing for the jurisdiction, or a special agreement, the rule is
that interpretation cannot extend the jurisdiction which has been
recognized. It should be added in the present case that, Iceland having
failed to appear, and Article 53 of the Statute being applied by the Court,
it is particularly necessary to satisfy oneself that the Court is passing
upon a dispute which has been defined as justiciable by Tceland and the
United Kingdom, and not some other dispute constructed during consideration
of the case by the Court. An obligation to bring a dispute before a court is
always reciprocal and of equal extent for each State which has accepted it;
hence the need to proceed to a special verification in this case, since
Iceland has not co-operated in the precise definition of the dispute. I have
stated on another occasion that I disagreed with the penalizing approach of
the Court with regard to a State which fails to appear, in its
interpretation of Article 53 (Fisheries Jurisdiction, I.C.J. [p 127] Reports
1973, p. 307); the present phase has strengthened my conviction on this
point.
3. The Exchange of Notes of 1961 would not appear to leave room for any
doubt, and I will quote the English text which is the authoritative 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, 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."
Thus the reference is to a possible dispute in relation to the extension by
the Government of Iceland of its fisheries jurisdiction around Iceland in
relation to the limits recognized in the 1961 agreement. The Court, in its
Judgment of 2 February 1973, stated in the last explanatory paragraph on
this point:
"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." (I.C.J. Reports 1973,
p. 21, para. 43; emphasis added.)
It is important to note that the formula underlined may be found in
paragraphs 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 27, 28, 40 and 41 of the
Judgment. To rely on the form of words used in the operative clause of the
1973 Judgment in order to assert that the Court found that it had
jurisdiction to entertain the Application, with the implication that the
content of that Application binds the Court, is to disregard, first the
inherent connection between the reasoning of the 1973 Judgment, which is
based solely on the concept of extension of fisheries jurisdiction, and the
form of the operative clause; and secondly the rule that it is the 1961
treaty which determines what the subject-matter of the justiciable dispute
is, and not the Application or the submissions of one of the Parties. The
Court should decide what the extent of its jurisdiction is, without being
bound by the argument addressed to it on the point.
I have quoted the original-language text of the Judgment to avoid any
ambiguity resulting from translation, and to show that I cannot accept the
argument that a form of words as precise as "dispute in relation to the
extension of fisheries jurisdiction" can be interpreted as impliedly
including any connected question which one of the Parties may have had
occasion to refer to in the course of the negotiations preceding the 1961
agreement, if the other Party refused to make that question the subject of
the agreement itself. That an idea or even a proposal may have been [p 128]
put forward in the course of negotiations is not sufficient for them to
survive rejection, and acceptance of that rejection by the author of such
proposals; any other view of the matter would enable multiple disputes to be
artificially created, simply by the introduction into a negotiation, as a
matter of principle, of various problems. No negotiations could be usefully
carried on if courts had such freedom to extend their results. It would
become necessary to draw up minutes of agreement as to the meaning of the
most important articles of a treaty, and then, as suspicion increased, of
all its articles.
In the present case, it is clear that the 1961 agreement only contemplated
one sort of dispute as justiciable, namely the extension of Iceland's
fisheries jurisdiction.
4. If any confirmation from a textual source were necessary on this point,
it should be recalled that the only passage where any more general
consideration is mentioned is in the United Kingdom reply to the Icelandic
Note of 11 March 1961, in the last paragraph and in the following form:
"I have the honour to confirm that in view of the exceptional dependence of
the Icelandic nation upon coastal fisheries for their livelihood and
economic development, and without prejudice to the rights of the United
Kingdom under international law towards a third party, the contents of Your
Excellency's Note are acceptable to the United Kingdom and the settlement of
the dispute has been accomplished on the terms stated therein."
(Application, p. 25.)
Nothing further need be said; this is an opinion held by the Government of
the United Kingdom, and not a term of the agreement.
5. The kind of dispute which the parties to the 1961 agreement had in
contemplation, and which they agreed to bring before the Court, was pegged
to a legal point which was specially defined, in a limited way, and because
assurances, which were also special and precise, had been sought and
obtained on this one point. If, as I hold, this definition of the
justiciable dispute has not been applied in the present Judgment, the Court
has gone beyond the bounds of its jurisdiction.
Iceland, which is absent from the proceedings, has from the outset disputed
that the Court has any jurisdiction, and this claim was rejected in the
Judgment of 2 February 1973 by an almost unanimous Court, which observed
that the dispute was exactly of the character anticipated in the 1961
agreement (cf. para. 3 above) and that that agreement was still in force and
applicable. The Judgment on the merits, on the other hand, departs from the
definition of the dispute on which judgment is to be given on two points:
(a) in that it does not decide the precise question of law contemplated in
the compromissory clause of 1961, i.e., the conformity with
inter-[p129]national law of the extension to 50 miles of Iceland's
fisheries jurisdiction;
(b) in that it adopts an extensive interpretation, in relation to the text,
of the/1961 agreement on the scope of the Court's jurisdiction, as if it had
read: any dispute on any question whatever connected with a modification of
the fisheries regime fixed by the present agreement.
With some internal contradiction, the Judgment simultaneously declines to
exercise the jurisdiction conferred upon the Court by the 1961 agreement and
exercises jurisdiction which was not created by that agreement. Study of the
records of the negotiations which led to the 1961 agreement will show that
this is so.
6. A first series of meetings took place between 1 October and 4 December
1960, and a second series between 17 and 20 December 1960 (documents
deposited in the Registry of the Court by the United Kingdom on 13 October
1972 FN1).
--------------------------------------------------------------------------------------------------------------------- FN1
I note that the Government of Iceland, having been informed of the deposit
of these records and of the possibility of consulting them in the Registry
of the Court, did not take advantage of this possibility. The records
prepared by the United Kingdom delegation to these negotiations have been
widely used by the United Kingdom in its pleadings and by the Court in its
Judgment of 2 February 1973. The Court has not been able to take cognizance
of any similar record on the Icelandic side.
---------------------------------------------------------------------------------------------------------------------
At the first meeting the views of the Icelandic Government were explained
extremely clearly as being a claim to exclusive fisheries jurisdiction, but
"in accordance with international law", and for the time being it was a
matter of obtaining the United Kingdom's recognition of the 12-mile limit.
These talks also show that the Icelandic Government was already talking of
establishing a more or less continuous belt of reserved waters around
Iceland, possibly extending for 12 miles, from which British ships would be
barred from navigation as well as fishing, and it is at this point that the
British idea appears of the necessary guarantee against any fresh extension
of the fishing zone, if the 12-mile limit were recognized in the current
negotiations.
United Kingdom delegation:
"Moreover, we should need to have some guarantee in any agreement that after
the transitional period the Icelandic Government would not seek to exclude
our vessels from any of the waters outside 12 miles, unless of course there
were to be some change in the general rule of international law agreed under
United Nations auspices. Would your Government be prepared to give us such a
guarantee in any agreement?" (Records, p. 14.)
This request for a guarantee is repeated incessantly (cf. para. 8 on p. 17,
and para. 14: ". . . an assurance that there would be no further extensions
towards the Continental Shelf"), and the first formulation of a guarantee
was provided by the Government of Iceland in these terms: [p 130]
"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." (Records, p.
20.)
(See also page 27 where the link between what was to be included in the
proposed agreement and the "guarantee" is openly recognized, and what was
included in the agreement was no more than the adjustment of the
jurisdiction of Iceland in a 12-mile fishing zone; further, the Icelandic
delegate only refers to an "assurance" in respect of a possible extension of
jurisdiction after the agreement, never in respect of anything else, cf.
page 31.)
7. The basic element to which the guarantee which was contemplated related
was thus clearly the extension of fishing rights claimed by Iceland over
waters beyond the 12-mile limit, in accordance with whatever the current
state of international law might be at the chosen moment; the means
contemplated by Iceland were negotiation, bilateral or multilateral, or a
unilateral decision of the Icelandic Government which would be subject to
arbitration. At no time during the further talks on this question of the
guarantee does it appear that there was any modification of this position
taken up by Iceland as to the content of the commitment which it
contemplated undertaking, and the form of words proposed by the Icelandic
delegation (and reproduced in para. 6 above) was gradually altered to what
ultimately became the penultimate paragraph of the Exchange of Notes of 1961
(see text in para. 3 above). The United Kingdom position was an immediate
recognition that any extension of fishery limits effected in accordance with
international law would be opposable to the United Kingdom; on the other
hand, an agreement would be necessary, not a unilateral decision, even with
the possibility of arbitration. Thus the British counter-proposal was the
following:
"Except in accordance with the terms of any subsequent agreement between
the United Kingdom and Iceland, or of any subsequent multilateral agreement
which embodies a generally accepted rule of law in relation to fishing
limits, the Icelandic Government will not take any action to exclude vessels
registered in the territory of the United Kingdom from fishing in any area
outside the 12-mile limit." (Records, p. 33.)
8. The immediate response of the Icelandic delegate, after studying this
text, was that it was necessary to "leave the Icelandic Government's hands
'untied' " in respect of possible further extensions of fishery
jurisdiction, in particular, he explained, by applying customary law which
developed more easily than treaty law as the two Geneva Conferences had
shown (ibid., p. 33, last paragraph). The point was taken up by a [p 131]
member of the British delegation who said that a unilateral extension was
not acceptable, even when based on custom; the Icelandic representative then
confirmed that there was a conflict of views on this by saying that "further
extension beyond 12 miles would only be on a basis of a change either of
international law or of customary law" (ibid., p. 34, para. 2).
9. At the following meeting the point in dispute was defined by the United
Kingdom delegation as follows:
"They appreciated Mr. Andersen's desire that the draft should cover the
possibility of a further extension of Icelandic fishery limits in conformity
with a new rule of customary law, as distinct from an international
agreement. The difficulty, however, would be how to establish that such a
customary rule existed. In the United Kingdom view such a rule would not
only have to reflect the practice of a number of States, but also be
generally accepted, i.e., established by general consent and recognized as
such by the International Court of Justice." (Records, p. 38.)
The same day, the United Kingdom delegation handed to the other party the
following draft:
"Assurance by the Icelandic Government on no extensions of fishery limits
beyond 12 miles
The Icelandic Government will not take any action to exclude vessels
registered in the United Kingdom from fishing in any area outside the
12-mile limit except in accordance with the terms of a subsequent
international agreement embodying a generally accepted rule of law in
relation to fishery limits, or in conformity with a rule of international
law, established by general consent and recognized as such by the
International Court of Justice, which would permit such an extension of
fishery jurisdiction." (Records, p. 40.)
10. There can therefore be no doubt as to the concrete expression of the
legal point in issue between the two States; Iceland was proposing to take a
unilateral decision, based upon international lawtreaty law or customary
lawaccording to its own assessment of the state of the law at the time of a
fresh extension of the fishery limits, and the United Kingdom was asking
that the existence of the rule permitting the extension should be
susceptible of being decided by the Court (cf. a revised draft of the
assurance quoted in para. 9 above: "Any dispute as to whether such a rule
exists may be referred at the request of either party to the International
Court of Justice." (Records, Annex 2, para. 6, p. 40.)). According to the
United Kingdom delegation, the assurance would have to cover three essential
points:
"(1) The Icelandic Government will not claim an extension of [p 132] fishery
limits beyond 12 miles except in accordance with a rule of international law
which has been clearly established (a) by embodiment in an international
agreement, or (b) accepted by general consent as a rule of customary
international law.
(2) Any dispute about whether such a rule of international law has been
established shall be submitted to the International Court of Justice: and
pending the Court's decision, any measure taken to give effect to such a
rule will not apply to British vessels.
(3) The assurance on this point will form an essential part of the
agreement.
If these three points could be met then Her Majesty's Government would do
all they could to help the Icelandic Government on the form and presentation
of the assurance. In particular, if a reference to the Althing's Resolution
of May 5 1959 was important, they would have no objection to including one."
(Records, p. 42, emphasis added in para. 2.)
I take note of the mention of the Resolution of 5 May 1959, to which the
United Kingdom did not object, but which was left as entirely under the
responsibility of Iceland, and was not incorporated in the agreement so as
to become one of the terms thereof. The Icelandic Law remains what it was,
without it being possible for the United Kingdom to invoke it, if it were
not observed by Iceland, in support of an international claim based on the
idea that an extension of Iceland's jurisdiction would only be lawful if
carried out on the basis and in the spirit of the Law of 1948.
The Icelandic delegate replied to the British proposed text that while the
formula proposed in London was not acceptable to his Government:
"there did not seem to be any real differences of opinion between the two
sides. The Iceland Government must state that their aim was the Continental
Shelf. They were, however, ready to state their intention to base their
action on rules of international law and also their willingness to submit
any dispute to the International Court" (Records, pp. 42-43, para. 7).
What was contemplated was clearly a dispute over a future action by Iceland,
announced quite unequivocally, directed to exclusive jurisdiction over the
waters of the continental shelf, and that a judicial decision should be
obtained on such an action according to international law, and no more, but
that is what the British party was seeking. On 2 December 1960 the Icelandic
delegate said that the most difficult feature of the problem of the
assurance was to meet the British requirement that no measure to apply an
extension would be taken pending reference to the International Court of a
dispute relating to such measures (Records, p. 44, para. 5, in fine).[p 133]
11. The last meeting of the first series of talks confirms that the
essential feature of the assurance would be that "it would ... be for the
International Court to decide whether [any act extending Icelandic
jurisdiction] was in fact in accordance with International Law" (Records, p.
46, para. 3).
It was at this point that the British proposal appears, for six months'
advance notice before any extension, making it possible to refer the matter
to the Court before the measure was actually applied (Records, p. 46, para.
6), and the drafting of the penultimate paragraph of the Exchange of Notes
of 1961 thereafter progressed more easily. The United Kingdom delegation
proposed three draft texts, and each of these contained in one form or
another the basic idea that possible disputes would relate to the question
whether a rule of international law exists permitting an extension of
Icelandic fisheries jurisdiction (Records, p. 48 and p. 49, para. 5). Annex
A at page 50 gives the final version of the text expressing in concrete form
the British views on the guarantee which should result from the referral of
the matter to the Court to ensure that any fresh extension of Iceland's
jurisdiction would be in accordance with international law.
12. This detailed study of the negotiations is necessary to dissipate any
doubt as to what was involved in the commitment to judicial settlement
undertaken by Iceland and the United Kingdom in March 1961. There was never
any question of "guaranteeing" the United Kingdom against anything other
than possible Icelandic measures to extend its fisheries jurisdiction, of
which the United Kingdom was already aware, affecting the superjacent waters
of the continental shelf, by means of a recourse to judicial settlement
limited to the question of the conformity of such measures with
international law. All the drafts which were discussed are quite clear on
this point, up to the final text of the Exchange of Notes of March 1961,
where the reference to the conformity of the measures with international law
disappears. Examination of the records relating to the disappearance of
these terms supplies the explanation of it. The United Kingdom obtained what
it had always asked for, but to spare Icelandic feelings, it accepted a form
of words which was less explicit than the drafts which had been discussed;
this is recorded expressis verbis in the Record for 5 December 1960, page
48, paragraph 1.
It is thus apparent how little in accordance with historical truth it would
be to deduce, from this purely formal concession by the British Government,
that there was a transformation and extension of the system of a
jurisdictional guarantee which that Government had unceasingly sought as a
condition sine qua non of any agreement with Iceland. The United Kingdom
wished to be assured of possible examination by the Court, according to
international law, of any subsequent measure extending Iceland's
jurisdiction as it was to be recognized in the contem-plated agreement; it
obtained this assurance as it had been negotiated, and finally accepted by
Iceland on the understanding that the formulation should be pitched in a low
key. [p 134]
13. The second series of talks, held from 17 to 20 December 1960, confirms
that the United Kingdom was seeking a "watertight" agreement on the basis of
an assurance that Iceland "would not attempt to extend [its fishery limits]
beyond 12 miles . . . otherwise than with the agreement of the International
Court" (Record for 17 December, p. 3, para. 15; again on 18 December, p. 4,
para. 3, in the same terms). Furthermore the Icelandic delegate said that
this form of assurance, accepted in principle by Iceland, "would have the
additional advantage, from the British point of view, of including an
undertaking by the Icelandic Government to the effect that the existing
base-lines would not be altered otherwise than with the agreement of the
International Court". This again confirms, if it were necessary, that the
dispute contemplated involved the examination according to international law
of the extension of the limits, and nothing else. This was also to draw
inspiration from the Court's Judgment in the Fisheries case in 1951, where
it was said that: "the method employed for the delimitation of the fisheries
zone ... is not contrary to international law" (I.C.J. Reports 1951, p.
143). For completeness the identical terminology used on 19 December 1960
by the Foreign Minister of Iceland should be mentioned:
"recognition by Her Majesty's Government of Iceland's 12-mile fishery
jurisdiction in return for an assurance against further extension"
(Records, p. 5, para. 1).
14. The Judgment also invokes (para. 32) the attempts to negotiate an
interim agreement in 1972, which were unsuccessful, in support of the
contention that Iceland agreed to negotiate on the basis of a preferential
right. In 1972 Iceland only entered into negotiations with several States in
order to fix very short adjustment periods in respect of its Regulations
extending exclusive jurisdiction to 50 miles, which it never for a moment
contemplated withdrawing or modifying (cf. para. 25 below) and, as regards
the United Kingdom, the kind of discussion which took place is indicated by
the Note of the Icelandic Government of 11 August 1972 (Annex 10 to the
United Kingdom Memorial), the very one in which it is claimed that a request
by Iceland for a discussion of preferential rights can be found, for it ends
with the following words: "(c) The term of the agreement would expire on 1
June, 1974." This Note of 11 August 1972 dates from after the hearing held
by the Court, in Iceland's absence, on 1 August 1972, on the request for
interim measures of protection, and is prior to the Order of 17 August 1972,
which Iceland has not accepted: what was contemplated was an agreement for
less than two years, and the Icelandic Government stated that it intended to
"have full rights ... to enforce the regulations [of 14 July 1972]. . .
inside the 50-mile limit".
The abortive negotiations of 1972 are totally irrelevant to the definition
of the subject of the dispute; on the Icelandic side they were directed to
the conclusion of an agreement leading to the extinction of the rights of
the United Kingdom in 1974, and organizing an interim regime until [p 135]
then, the Regulations of 14 July being kept in force, in application of the
Althing Resolution of 15 February 1972, which only contemplated
transitional agreements. Confirmation of this is supplied by an Icelandic
Memorandum of 19 January 1973 (Annex 13 to the Memorial), proposing an
agreement to be in force until 1 September 1974, i.e., for 18 months only.
Finally the fact that the agreement ultimately concluded on 13 November 1973
entirely reserved the legal position of each party cannot be overlooked, and
for Iceland that position was not a claim to preferential rights but to
exclusive jurisdiction extending to 50 miles. That the United Kingdom may
have had a different conception of Iceland's rights is not an element of
interpretation of the position of that State.
15. The history of the negotiation of the text founding the jurisdiction of
the Court in the present case explainsif there were any need, the text
being clearthe laconic provision in the penultimate paragraph of the 1961
agreement. When Iceland entered into an undertaking in 1961 it did so to a
limited extent. The Court should give an answer on the only question which
could be brought before it; since it has not done so, it has not exercised
the jurisdiction conferred by the agreement. I have made it clear for my own
part that I regarded the extension from 12 to 50 sea miles as contrary to
general international law, and therefore non-opposable to any State fishing
in the waters adjacent to the 12-mile limit around Iceland. The Court stated
in its Judgment in the North Sea Continental Shelf cases that: "The coastal
State has no jurisdiction over the superjacent waters." (I.C.J. Reports
1969, p. 37, para. 59.) The claim of Iceland is expressly in relation to
those waters. As to the lawfulness of an encroachment into sea areas which
all States fishing in the area, without exception, regarded as forming part
of the high seas on 1 September 1972, it is unarguable that it was lawful;
Articles 1 and 2 of the Convention on the High Seas and Article 24 of the
Convention on the Territorial Sea are provisions which are in force, and
since the only argument relied on to exclude them is that they are outdated,
no reply on this point is needed; the calling of a third codifying
Conference in July 1974 amply demon-strates that certain procedures, and
agreement, are necessary to replace codifying texts. Until different texts
have been regularly adopted, the law of the sea is recorded in the texts in
force.
It has also been said that a claim extending beyond 12 miles is not ipso
jure unlawful, because there have been many claims of this kind; but by
conceding that these claims are also not ipso jure lawful one admits that
acceptance by others is necessary to make them opposable. What could a claim
which was disputed by all the States concerned in a given legal situation
be, if it were not unlawful? But since all States fishing in the Icelandic
waters in question are opposed to the extension, what is the reason for not
stating this and drawing the necessary conclusion?
There is no escaping the fact that if the States which oppose the extension
cannot do so on the basis of a rule of international law, their opposition
is ineffective, and this must be said; but if they can base their
opposition on such a rule, it is equally necessary not to hesitate to say
that. It is [p 136] the accumulation and the constancy of the opposition
which should have obliged the Court to make a general pronouncement in the
present case.
This was in fact the purpose of the first submission of the United Kingdom,
which is not answered in the Judgment; furthermore the Agent said in the
course of his argument that it was understood and accepted "that submissions
(b) and (c) are based on general international law and are of course not
confined merely to the effect of the Exchange of Notes". The Court has
decided entirely otherwise. As a result of its refusal to give judgment on
the conformity of the 50-mile extension with general international law, the
Court has had to treat the 1961 agreement as the sole ground of
non-opposability of that extension to the United Kingdom, interpreting that
agreement as a recognition by Iceland that the Court has jurisdiction for
any dispute concerning any measure relating in any way to fisheries.
16. Going beyond the events of 1961, it should be added that analysis of
Iceland's position on the fisheries problem for the last quarter-century and
more leads to the conclusion that that State has unremittingly advanced, and
secured recognition of, the view that claims as to the extent of the fishery
zone were entirely distinct from problems of conservation. Thus under the
North-West Atlantic Fisheries Convention of 8 February 1949 (Art. I, para.
2), and then under the North-East Atlantic Fisheries Convention of 24
January 1959, Iceland was to be one of the parties which attached the
greatest importance to the formal reservation that those conventions did not
affect the rights, claims, or views of any contracting State in regard to
the extent of jurisdiction over fisheries.
The constant element in the policy of Iceland appears to me to be the
distinction between limits of an exclusive fishery zone, and a claim to
preferential rights beyond that zone. These are two clearly different
problems; by asserting, by means of its Regulations of 14 July 1972,
exclusive fisheries jurisdiction up to a 50-mile limit Iceland took up its
position in the field of its claims as to the extent of its exclusive
fishing zone, as the two parties to the 1961 agreement had foreseen; this
was the legal point which the Court was to decide.
***
17. Subparagraph 3 of the operative clause of the Judgment contains a
decision that there is an obligation to negotiate between Iceland and the
United Kingdom "for the equitable solution of their differences concerning
their respective fishery rights . ..", and subparagraph 4 indicates various
considerations as guidelines for such negotiations. I consider that the role
of the Court does not permit of it giving a pronouncement on these two
points, and that by doing so, the Court has exceeded the bounds of its
jurisdiction. [p 137]
18. Subparagraph 3 refers to differences concerning the "respective" fishery
rights of the two States. There are of course differences, since Iceland is
claiming to exclude the United Kingdom finally from the area up to 50 miles,
but this claim is made erga omnes, and it is somewhat unreal to treat as a
bilateral problem, capable of being bilaterally resolved, the effects of the
Icelandic Regulations of 14 July 1972 asserting exclusive jurisdiction over
the superjacent waters of the continental shelf, after having declined to
reply to the question raised as to the unlawfulness of such Regulations in
international law. Although in subparagraph 4 there are formal safeguards
for the position of the other States, the Court has regarded it as possible,
to isolate, as it were, the bilateral differences and settle them by the
Judgment. This is the first point that I should deal with before turning to
the substance of subparagraphs 3 and 4 of the operative clause of the
Judgment.
19. The origin of these subparagraphs 3 and 4 of the operative clause is in
the last part of the United Kingdom's submissions (final submission (d))
which gave the dispute a wider dimension than the sole question of the
lawfulness of the unilateral extension of jurisdiction, and on the basis of
that submission problems of conservation have been extensively discussed in
argument. But the bounds of a judgment are not fixed by a party in its
Application, nor in its final submissions, nor, a fortiori, in its argument,
when the jurisdiction being exercised is one specially laid down by a
treaty, with a view to bringing before the Court a precise question of law.
Particularly when the other Party is absent from the proceedings, the Court
cannot simultaneously decline to reply to the joint request for a
declaratory judgment which was indisputably made in the 1961 agreement, and
decide what the conditions shall be of negotia-tions over conservation as to
which no-one but the Applicant has ever asked its opinion, since it should
be remembered that according to Iceland there are 11 States regularly
fishing in the waters around Iceland (cf. Fisheries Jurisdiction in Iceland,
Reykjavik, February 1972, table 1, p. 14). As for the United Kingdom, its
counsel, in reply to a question on 29 March 1974, stated that in the United
Kingdom's pleadings, the only States which were regarded as interested or
affected or concerned by the question of fisheries around Iceland were those
which have in the past fished in that area, that is to say, apart from the
United Kingdom and Iceland, the Federal Republic of Germany, the Faroes,
Belgium and Norway. Thus questions also arose as to the nature of the
interest in the fisheries of the geographical area in question, which the
Judgment neither takes into account nor resolves.
20. It is now some considerable time ago that attention was drawn to the
difficulties which result from submissions being drafted both as a
restatement of the arguments in support of the claim and as the final
definition of what the Court is asked to decide (cf. "Quelques mots sur les
'conclusions' en procedure internationale", J. Basdevant, Melanges Tomaso
Perassi, p. 175). The present case affords a fresh example of this. The
Court, which is the sole judge of its jurisdiction, must therefore sort [p
138] out what in the submissions is a statement of arguments and what is the
precise statement of the claim; the claim cannot go beyond the subject of
the jurisdiction conferred upon the Court, and that jurisdiction was limited
to a declaratory decision as to the conformity of Iceland's unilateral
extension of jurisdiction from 12 to 50 miles with existing international
law on 1 September 1972, the date on which the Icelandic Regulations were
brought into force.
21. If one reads the second submission in the United Kingdom's Application
it is apparent that the second part thereof was so drafted that it could not
constitute a claim, but merely an argument in support of the first part of
that submission, by which the Court was asked to declare that questions of
conservation cannot be regulated by a unilateral extension of limits to 50
miles, as a sort of consequence of the declaration asked for as to the
non-conformity of the Icelandic regulations with general international law,
in the first submission of the United Kingdom. The submission continues
with the following:
"[questions of conservation] 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 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" (Application, para. 21; emphasis added).
A further version of this submission was given in the Memorial on the merits
(reproduced in para. 11 of the Judgment) where the obligation to negotiate
appears formally expressed, and was to be maintained as a final submission.
The Court would have exhausted its jurisdiction by saying, in reply to the
first part of the submission, that questions of conservation cannot be
regulated by a unilateral extension of limits to 50 miles and a claim by
Iceland to exclusive jurisdiction in that zone.
How could such a general question of law as conservation involving at least
11 fishing States be judicially settled "between Iceland and the United
Kingdom . . . whether or not together with other interested countries"?
While it was possible in 1961 for Iceland and the United Kingdom to agree on
an assurance against any fresh extension of jurisdiction, the effect of
which would be suspended as between those two States by recourse to the
Court, it is not reasonable to imagine that a system of conservation of
marine resources concerning 11 States could be worked out by two of them.
The importance of the United Kingdom's interest in the fisheries around
Iceland is recognized. But the question put to the Court is not the
equitable sharing of the resources of these fisheries, a suggestion
analagous to that which the Court rejected in its [p 139] Judgment with
regard to the delimitation of the continental shelf of the North Sea (I.C.J.
Reports 1969, p. 13, para. 2, and pp. 21 to 23, paras. 18 to 20), from which
Judgment I would adopt the expression that in the present case, there is
nothing "undivided to share out" between the United Kingdom and Iceland. The
idea of the "respective" fishing rights is not a correct description of the
position in fact and in law. The legal status of the fisheries between 12
and 50 miles from Iceland can only be an objective status, which takes
account of the interests of all States fishing in those waters. Further, the
problems of "fishing rights" in the waters around Iceland have been under
study for a considerable time with the States concerned, and Iceland has
recognized the need to resolve those problems with such States, as has also
the United Kingdom.
22. On 22 July 1972at the height of the Iceland fishery crisis and one week
after the promulgation of the Icelandic Regulations of 14 July 1972 which
constitute the act impugned in the United Kingdom Applicationthere was
signed in Brussels an agreement between the European Economic Community and
Iceland in order to "consolidate and to extend . . . the economic relations
existing between the Community and Iceland". The first article relates that
"the aim is to foster in the Community and in Iceland the advance of
economic activity [and] the improvement of living and employment
conditions". The agreement applies to fish products (Art. 2), to which a
Protocol No. 6 is specially devoted; Article 2 of that Protocol provides:
"The Community reserves the right not to apply the provisions of this
Protocol if a solution satisfactory to the Member States of the Community
and to Iceland has not been found for the economic problems arising from the
measures adopted by Iceland concerning fishing rights." (Emphasis added.)
In application of this Article 2 of Protocol No. 6, and at the request or
with the approval of member States of the Community (including the United
Kingdom and the Federal Republic of Germany), although the agreement with
Iceland had come into force on 1 April 1973, the imple-mentation of the
Protocol on Icelandic fish products has already been postponed five times,
the last time on 1 April 1974. To prevent Iceland from benefiting from a
customs arrangement granted it by a treaty because there is an unsettled
dispute over "fishing rights" is, to say the least, to declare oneself
concerned or affected by that dispute. Thus the European Economic Community
has five times declared its direct interest in coming to a settlement
regarding fishing rights in the waters round Iceland by refusing to grant
Iceland the implementation of the special tariff provisions laid down in the
agreement of 22 July 1972. This agreement is moreover mentioned in the
White Book on the fishing dispute published by the British Government in
June 1973 (Cmnd. 5341): the reference occurs in paragraph 22, immediately
following a paragraph on Anglo-German co-operation, and we read: [p 140]
"It will be for the Community to declare when a satisfactory solution to the
fisheries dispute has been achieved and, consequently, when to decide that
the terms of the Protocol should take effect."
23. The common interest evinced by the member States of the European
Economic Community, and the terms of Article 2, paragraph 1, of the
above-cited Protocol No. 6, alike show that these States are not indifferent
to the elaboration of a regime for fisheries in the waters round Iceland.
For its part, Iceland, by accepting the agreement and Protocol No. 6, has
recognized the interest of the European Economic Community in the settlement
of the question of fishing rights. Thus the memorandum explaining the
grounds of the first proposal to postpone implementation of Protocol No. 6,
submitted by the Commission to the Council on 20 March 1973, refers to the
"economic problems arising from the measures adopted by Iceland concerning
fishing rights" for the member States of the Community. This position of
Iceland vis-a-vis the EEC may usefully be compared with that of Norway in
its agreement of 14 May 1973 with the EEC, which came into force on 1 July
1973: the concessions granted therein by the EEC will only be valid provided
Norway respects "fair conditions of competition"; on 16 April 1973, the date
when the agreement was initialled, the Commission indicated that all the
tariff-reductions granted on certain fish products of Norwegian origin had
been agreed to subject to the continued observance of the existing
conditions of overall competition in the fishing sector, which covers the
eventuality of any unilateral extension of the fishery zone.
As is well known, the member States of the European Community constitute a
majority in the North-East Atlantic Fisheries Commission; what is more, an
observer of the Community as such takes part in its work, as is also the
case of the North-West Atlantic Fisheries Commission. The catch-quotas of
the participant Community members could, according to a proposal made by the
Commission of the Communities to the Council, be negotiated and administered
on a Community basis.
24. Now an agreement whereby Iceland formally accepts that treaty provisions
of undoubted economic importance for that country should be suspended for so
long as the problem of the economic difficulties arising out of the measures
it has taken in respect of fishing rights remains unresolved would appear to
constitute a recognition by Iceland and the EEC of an obligation to
negotiate. The negotiations concern the economic consequences of Iceland's
claim to exclusive fisheries jurisdiction, and the context of the
negotiations is no longer, directly, fishing rights; but what the EEC
understood in an analogous situation has been seen in the instance of
Norway, and the distinction should not be over-nicely drawn. The question of
fishing rights is necessarily affected by any decision regarding the
economic consequences, whatever solution is reached for dealing with the
economic consequences and whatever the chosen method; but the debate is one
of wider scope, and extends to [p 141] general economic relations between
all the countries concerned. While the Court, in subparagraph 4 of the
operative part of the Judgment, has not sought to define more than the
conservation aspect of fishing rights in the prescriptions directed to the
United Kingdom and Iceland, the working-documents of the Community
accurately convey an all-round picture of the various aspects of the problem
of fishing in the waters round Iceland. One more example: a Danish
memorandum on fishing submitted to the Council on 20 March 1973 recommends,
after reviewing the problem of regions almost wholly dependent on fishing
(Greenland, the Faroes), special measures of both a structural and a
regional nature.
By finding, in the Judgment, that there is a bilateral obligation to
negotiate concerning "respective" rights of a bilateral character, when
Iceland has accepted a multilateral obligation to negotiate on much wider
bases in institutions and international bodies which do not come within the
purview of the Court's jurisdiction, the Court has formulated an obligation
which is devoid of all useful application.
25. The necessity of dealing with the problem of fisheries in the waters
round Iceland comprehensively and with those States particularly interested
is also accentuated by the fact that certain States have concluded
agreements of an interim character with Iceland, as the United Kingdom did
on 13 November 1973, in order to mitigate the difficulties caused them by
the application of the Icelandic Regulations of 14 July 1972. The first
negotiations were conducted with the local government of the Faroe Islands
and enabled fishermen from these islands to fish within the 50-mile limit
(Reykjavik agreements of 15-16 August on bottom-line and handline fishing
and of 19 September 1972 on trawl fishing). A Danish Note verbale of 23
August 1972 states that "questions concerning fishing in the North Atlantic
should ... be settled in an international context" and expresses the hope
that negotiations "with the Parties whose interests are threatened by the
new Icelandic regulations may be resumed as quickly as possible" (cited in
Revue generale de droit international public, 1974, pp. 343 f.).FN1
--------------------------------------------------------------------------------------------------------------------- FN1
Quotations translated from French by the Registry.
---------------------------------------------------------------------------------------------------------------------
Belgium, on 7 September 1972, concluded with Iceland an agreement which was
renewed for 18 months in March 1974; Article 1 reserves the position of the
parties on the extent of fisheries jurisdiction, but when the text was
transmitted to the Council of the European Communities, the following
indication was given: "the Belgian Government considers that, so far as
Belgium is concerned, this agreement constitutes a satisfactory, albeit
temporary solution within the meaning of Article 2 of Protocol No. 6 to the
EEC-Icelandic Agreement of 22 July 1972". Another agree-ment was concluded
with Norway on 10 July 1973. These agreements, even when they reserve the
legal position of each of the States vis-ΰ-vis Iceland, necessarily take
account of the 1972 Regulations which are the source of the dispute, and
Iceland doubtless views them as provisional accommodations of very limited
duration which have been made pending [p 142] the general acceptance of its
claim. (The agreement of 19 September 1972 concluded with the Faroes is
subject to denunciation by Iceland at any time, while it may denounce that
of 15-16 August at six months' notice.) Hence all one may deduce therefrom
is an affirmation of the interest of those States in reaching an objective
solution of the problem. These agreements, added to the treaty with the EEC
which one of them mentions, give concrete support to the dual conclusion
that there exists a group of specially interested States concerning which
the Court has no means of knowing what intentions they may have of
negotiating with a view to establishing an objective fisheries regime, and
that it has no jurisdiction to lay down the law to them, not even by way of
directions for negotiation. The failure of all these bilateral negotiations
to arrive at anything other than phasing-out agreements which leave the
substantive problem aside shows that the situation will be resolved solely
by a multilateral agreement corresponding to the objective character of the
regime desired.
26. It was not a series of accidents which caused these problems to be
considered successively under the auspices of the OEEC (in 1956, in order to
put an end to the difficulties of landing Icelandic fish catches in British
ports) and of NATO (informal talks in 1958 between representatives of
Iceland, the United Kingdom, the Federal Republic of Germany and France),
before being raised in the framework of the European Economic Community and
the treaty of 1972, but the recognition of the objective character of the
regime of these fisheries.
If a bilateral agreement with Iceland was possible in 1961, that was because
the essential content of that agreement consisted of the United Kingdom's
recognition of the 12-mile limit; but in the last portion of the operative
part of its Judgment the Court passes upon a question regarding a fisheries
regime for the conservation of resources, and there is nothing bilateral
about that. Iceland pointed this out in clear terms to the United Kingdom
during the London conversations of 3 and 4 November 1971 (United Kingdom
Memorial on the merits, para. 23) before enacting its 1972 Regulations:
Iceland's purpose was to protect its fishing industry against massive
competition by "super-trawlers" from Spain, Portugal, Poland, the USSR and
Japan and to facilitate the planned expansion of Iceland's own fishing
industry (it will be noted that Iceland here adds three States, to the
eleven listed in paragraph 19 above, but, in any event, the circle of States
concerned is not unlimited even if such variations are to be found; it is
thus wholly irrelevant to look into the claims of States which are equally
far removed from the Iceland fishery area and Iceland's preoccupations).
Iceland has wider aims than conservation. A review of Iceland's economic
problems seen in relation to an extension of fisheries jurisdiction is to be
found in the already-quoted OECD report of 1972 (in particular, pp. 32-39).
As the Court did not touch upon this aspect of the situation, I will simply
say that any tribunal that wished to study the regime of Iceland's fisheries
would have found it indispensable to consider these problems; it is not
sufficient to say in general [p 143] terms that Iceland is dependent on its
coastal fisheries "for its livelihood and economic development" if no
attempt is made to grasp the economic realities underlying the phrase.
Indeed, for want of all research on the point, the Court's pronouncement
constitutes simply an abstract reply to an abstract question. Even from the
standpoint adopted by the Court, whereby a problem of objective regime may
purportedly be resolved by means of bilateral negotiations, the question
should have been placed within its true dimensions, these being of wider
scope than conservation procedure, which, in the unique case of Iceland, is
probably not the only factor capable of reconciling the legitimate interests
that stand confronted (cf. para. 31 below).
27. The obligation to negotiate in the present case does not originate in a
kind of general undertaking drawn from Article 33 of the Charter, which is
above all a list of means of settlement; this theory makes of the obligation
to negotiate a universal but an uncertain remedy, since when negotiations
take place without a specific objective the Parties necessarily remain free
to appraise their desirability and the necessity of their success. There is
only one obligation laid down in Article 33, that of seeking a solution to
any dispute likely to endanger peace and security, and parties are left
entirely free to adopt the "peaceful means of their own choice". There is
nothing to authorize selecting one of those means, negotiation, and turning
it into a legal obligation, when all the other methods remain open. The
danger in this new construction is that it may have the result of imposing
upon States which are before the Court in relation to a specific dispute, in
the form of directions for negotiations occasioned by that disputebut not
on the dispute itself, rules of conduct which a mediator or conciliation
commission might propose, though without compulsory effect. Thus it is as
if, in creating the idea of an obligation to negotiate on account of Article
33, it were desired to lend one of the means greater effect than the others.
This interpretation would enable the Court, in any grave dispute, to
transform itself into an arbitrator, conciliator or mediator, as the case
might be, and that is what it has done in the present instance. Article 33
of the Charter does not permit this evolution in the role of the Court,
which is contrary both to the Charter and to the Court's own Statute. In
paragraph 100 of its 1969 Judgment the Court said that one must not
"over-systematize" (I.C.J. Reports 1969, p. 54).
The source of the obligation to negotiate in this case is the legal nature
of the fisheries regime which is the subject of the dispute, and that can
only be actualized by means of negotiation among all the States concerned;
it is there, solely, that the Court could have found the answer to the
question it had chosen to ask itself and discovered that it could not
incorporate it into its decision but at most give it a place in the
reasoning of the judgment.
28. To conclude my observations on subparagraphs 3 and 4 of the operative
part: by virtue of the interpretation placed on the 1961 agreement and the
negotiations that enabled it to be concluded (see in parti-[p 144]cular
paras. 25 and 47 of the Judgment) the Court considers that Iceland has
agreed to the inclusion of problems of conservation (zones and methods),
preferential rights and historic rights within the categories of dispute
which it might find the Court adjudicating. I have already indicated that it
appeared to me to be an unwavering constant of Icelandic policy always to
distinguish problems of conservation and preferential rights from the
problem of the extension of fisheries jurisdiction (para. 16 above) and that
the 1961 agreement was one of the proofs of this. If this position had
shifted in 1961, why is there nothing in the records to reveal as much? Yet
what would have been the concession in point?the recognition that, in
relation to any extension beyond the 12-mile limit of the exclusive fishery
zone, any problems of conservation or preferential and historic rights
might also be referred to adjudication as elements of a dispute over the
extension of the zone. I must say that I find this improbable in the absence
of any formal admission on the part of Iceland and considering its constant
attitude of opposition to all confusion of problems concerning the breadth
of the exclusive fishery zone with problems of the fishery regime beyond
that zone.
***
29. One further point remains to be examined: what is the effect of this
last part of the operative clause of the Judgment? The interim agreement of
13 November 1973 is a treaty which the Court is obviously powerless to
modify; and it applies as an interim agreement until 13 November 1975
"pending a settlement of the substantive dispute and without prejudice to
the legal position or rights of either Government on the question" (this is
from the first sentence of the agreement). In 1972 the Parties conducted
unsuccessful negotiations directed to the conclusion of an interim agreement
for the duration of the proceedings before the Court; the agreement of
November 1973 is different: it guarantees the United Kingdom a certain
provisional position for two years in any event, while expressly reserving
the question of settlement of the dispute. It is clearly contrary to the
first paragraph of the agreement, cited above, and contrary to all the
probabilities, to say that by using this expression Iceland agreed that a
decision of the Court on the merits could settle the dispute. The legal
position of Iceland is in fact recognized by the agreement, and it is
reservedthus left outside the agreement. If Iceland had tacitly accepted
that the Court should be empowered to settle the dispute on the merits,
which it has always refused to do, it would thus have recognized the
jurisdiction of the Court. That amounts to saying that it would have granted
what in its eyes was a favourable position to the United Kingdom for two
years, and in addition recognized that the Court would give judgment on the
merits of a dispute as to which Article 7 of the agreement indicates that
the Parties are aware that it will no doubt be still in existence in
November 1975: "Its termination [that of the agree-[p 145]ment] will not
affect the legal position of either Government with respect to the
substantive dispute." Comparison of this Article 7 with the first paragraph
seems to me to leave no room for doubt. Furthermore, the history of Article
7 was already available in a British document (White Book, Ann. A, Doc. 9)
which reproduces the counter-proposals for an interim agreement made by the
United Kingdom on 3-4 May 1973 in the course of talks in Reykjavik. The
Icelandic ministers had asked that at these talks the question should be
examined whether, if an interim arrangement were agreed, the proceedings
before the Court could be suspended (White Book, Ann. A, Doc. 6 (f), p. 16).
The draft counter-proposal of the United Kingdom shows how the negotiations
went on this point (White Book, Ann. A, doc. 9, para. 6) and my colleague,
Judge Petren, has demonstrated in his dissenting opinion that Iceland
refused to accept a form of words for Article 7 which would have provided
for an obligation to negotiate with the United Kingdom on the merits before
Novembei 1975; that obligation having been formally excluded, it is
impossible to go against the clear text of the treaty and impose it. The
1973 agreement, which maintains the legal position of the Parties as they
stand at present and as they may be in November 1975, therefore prevents the
bilateral obligation to negotiate pronounced by the Court from having any
effect. The two Governments could of course decide to negotiate tomorrow, if
they so wish, but there is nothing to oblige them to do so, and the 1973
agreement recognizes this.
This is not all. The general considerations in subparagraph 4 of the
operative clause of the Judgment, being intended for bilateral
Anglo-Icelandic negotiations, are in danger of being overtaken by events by
November 1975. If it is suggested that before November 1975 the United
Kingdom could come back to the Court, in one way or another, I should
explain briefly that it seems to me that the position is otherwise.
30. The Judgment (subpara. 4 of the operative clause) is not applicable
until 1975, since the interim settlement for British fishing was reached
with the reservation of any settlement on the merits. This again confirms
the abstract, not to say illusory, aspect of this final part of the
operative clause. It also follows from this that any change in international
law in this field will render the Judgment obsolete.
Paragraph 76 of the Judgment states that the agreement of November 1973 does
not relieve the Parties from their obligation to negotiate; even if such a
bilateral obligation existed, which has here been contested, the 1973
agreement broke new ground, where modification is not possible, as defined
in the following way by the Prime Minister of the United Kingdom in the
House of Commons:
"Our position at the World Court remains exactly as it is, and the agreement
is without prejudice to the case of either country in this matter. This is
an interim agreement covering two years from the moment of signature this
afternoon, in the expectation that the Conference on the Law of the Sea will
be able to reach firm conclu-[p 146]sions. We all know the difficulties
facing a conference on the law of the sea, but both Governments hope that it
will have been possible by the expiration of this agreement to reach
agreement on the law of the sea and that that will then govern the
situation." (Hansard, Commons, 13 November 1973, column 252; emphasis
added.)
If the British Government recognizes that the agreement is without prejudice
to the legal position of the Icelandic Government, and is not contemplating
any possibility prior to the expiration of the agreement other than general
agreement on the law of the sea in connection with the proceedings of the
Third Conference on the Law of the Sea, it definitely appears that the two
Governments considered that the 1973 agreement "relieved" them from
bilateral negotiation for so long as no general agreement has been reached
in the general framework of the proceedings in progress. These statements
would also appear to exclude the hypothesis of any return to the Court prior
to the termination of the agreement of November 1973, to seek judgment on
the substantive dispute, which is agreed to be reserved.
31. Since a dissenting or separate opinion should be kept within limits, I
will not deal with other points on which I also disagree with the
Judgment,with the exception of one of these. The invocation of the
Judgment in the North Sea Continental Shelf cases to support the present
decision, with regard to the recognition of a bilateral obligation to
negotiate and the reference to equity in paragraphs 75 and 78 of the
Judgment and in the final part of the operative clause, is unjustified. The
present legal position is quite distinct, since it was the special
agreements which had decided that the task of actually fixing the boundaries
should be reserved to the Parties, who undertook to do so "on the basis of,
and in accordance with, the principles and rules of international law found
by the Court to be applicable" (I.C.J. Reports 1969, p. 13, para. 2 of the
Judgment). Thus in 1969 the Court did exactly the opposite of what it has
done today, when instead of giving a judicial statement of the state of
international law on the subject, and leaving the application thereof to the
Parties, the Judgment disregards the obligation to state the law, and falls
back on an obligation to negotiate which was not provided for in the 1961
agreement by the two States. Furthermore, in 1969 the delimitation of the
continental shelf only concerned the three States which were Parties before
the Court, and they alone were competent to effect it. That is not the case
here for the matters which the Court has sought to resolve in subparagraph 4
of the operative clause: that is, the bilateral organization of a fishery
conservation regime while there is a multilateral obligation to negotiate.
Since I also attach particular importance to the question of equity, I would
recall that the Court on that occasion took the greatest possible
precautions in its drafting specifically in order to prevent its
observations being treated as of general application. The inequity of the
geographical [p 147] situation was simple, and was the result of the natural
configuration of the coast; the adjustment involved a single operation,
which was also simple, namely, as just a modification as possible of the
boundary. The fisheries situation of Iceland is quite unrelated to this,
since it involves interests which are of their nature extremely diverse; to
inject the concept of equity into a recommendation of negotiations is not
sufficient to make it applicable, because of the circumstance, which is
unique in the world, of the absolute economic dependence of a State on
fisheries. "Equality is to be reckoned within the same plane, and it is not
such natural inequalities as these that equity could remedy" (I.C.J. Reports
1969, p. 50, para. 91). To hold the balance between the economic survival of
a people and the interests of the fishing industry of other States raises a
problem of the balanced economic development of all, according to economic
criteria, in which fishing is only one of the elements taken into account,
and of which the bases are international interdependence and solidarity. The
concepts of rate of economic growth, industrial diversification,
vulnerability of an economy faced with the "caprices" of nature, population
structure and growth, use of energy, investment needs, development of
external markets for fish products, regularization of such markets, foreign
participation in Icelandic undertakings, industrial development funds, among
many others, define the economic interests of Iceland in obtaining a certain
settlement of the fisheries problem. Not merely have these expressions never
been used, but it is clear that differences of views on these questions do
not give rise to justiciable disputes, since these are problems of economic
interests which are not the concern of the Court. But the Court cannot make
them disappear by refusing to see anything but a conservation problem; the
balance of facts and interests is broken.
***
32. In effect the Judgment decides that Iceland did not have the right to
extend its fisheries limits from 12 to 50 miles on grounds of conservation,
which will be generally conceded, but this is to choose a ground which is
not that of Iceland, after having avoided deciding that, in the present
state of existing law, the extension to 50 miles is not opposable to the
fishing States, whatever ground may be relied on for such an extension,
including the interests of Iceland as it has explained them; but to
disregard a line of argument amounts to rejecting it. Then, sticking to
this single theme of conservation, the Court constructs for the two parties
to a dispute a system of consultation on conservation problems as if the
solution of these could take the place of the only decision which was
contemplated in 1961, namely that on the lawfulness of any fresh extension
of limits beyond 12 miles. To respond to a dispute over a claim to exclusive
jurisdiction by giving guidelines for a conservation agreement is not a
fulfilment of the Court's task; even if the Court thought that the question
raised under the agreement was too narrow, it is the question which was [p
148] defined by the parties. An agreement can never define anything other
than what was subject to negotiation at the appropriate time between the
parties who concluded it; as the Court has said: "no party can impose its
terms on the other party" (I.C.J. Reports 1950, p. 139). Nor can a court
impose its interpretation of an agreement on the States which concluded it,
so as to make it say something more than, or something different from, what
it says. Here again the Court has already spoken:
". . . though it is certain that the Parties, being free to dispose of their
rights, might . . . embody in their agreement any provisions they might
devise . . ., it in no way follows that the Court enjoys the same freedom;
as this freedom, being contrary to the proper func-tions of the Court, could
in any case only be enjoyed by it if such freedom resulted from a clear and
explicit provision ..." (Free Zones of Upper Savoy and the District of Gex,
Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 11).
33. By centring its decision around problems of conservation which are not
the subject of the dispute which arose in 1972 as a result of Iceland's
extension of its fisheries jurisdiction from 12 to 50 miles, the Court has
raised an abstract question to which it has given, in the last part of the
operative clause of the Judgment, an abstract reply. In contentious cases,
the Court is bound by what it is asked to adjudge; when it applies Article
53 of the Statute, the rule is still stricter, since the Court must satisfy
itself that it is not going further or in a direction other than what was
agreed to by the State which is absent from the proceedings, in the
instrument which established the competence of the tribunal. Thus the Court
observed in the Ambatielos case that: "in the absence of a clear agreement
between the Parties ... the Court has no jurisdiction to go into all the
merits of the present case" (I.C.J. Reports 1952, p. 39); the least that can
be said is that the problems of conservation were not the subject of such
discussion in 1960 between the United Kingdom and Iceland, and that it is
difficult to see by what unequivocal agreement it could have become a
dispute in itself under the Exchange of Notes of 1961.
34. The Court has not fulfilled its mission in the present case, since is
has not decided the legal question which the Parties to the 1961 agreement
had envisaged laying before it, for purposes which they were free to decide
upon, and since it has dealt with the problem of the conservation of
Icelandic fisheries as being the substance of the dispute. Such a judgment
cannot therefore be effective for the settlement of the real substantive
dispute, even if there were an intention to achieve this, as appears from
paragraph 48 and from certain covert allusions in the text.
The real task of the Court is still to "decide in accordance with
international law such disputes as are submitted to it" (Art. 38 of the
Statute). To introduce into international relations an idea that the
decisions of the Court may be given according to what on each occasion the
majority thought to be both just and convenient, would be to effect a
profound transformation. It will be sufficient to quote the Court itself: [p
149]
"Having thus defined . . . the legal relations between the Parties. . ., the
Court has completed its task. It is unable to give any practical advice as
to the various courses which might be followed with a view to terminating
the asylum, since, by doing so, it would depart from its judicial function.
But it can be assumed that the Parties, now that their mutual legal
relations have been made clear, will be able to find a practical . . .
solution . . ." (I.C.J. Reports 1951, p. 83.)
That this new concept must be rejected as in contradiction with the role of
an international tribunal appears to me to be clear, simply from the
observation that an international court is not a federal tribunal; the
Statesof which there are now not manywhich come before the Court do not do
so to receive advice, but to obtain judicial confirmation of the treaty
commitments which they have entered into, according to established
international law, in relation to a situation with which they are well
acquainted. The Court saw all this in the Judgment in the Fisheries case, in
which the special nature of the situation was the dominant feature in the
decision (I.C.J. Reports 1951, Judgment of 18 December 1951); by seeking to
effect, under cover of a case limited to Icelandic fisheries, a
pronouncement of universal effect, the Court contradicts its whole previous
attitude. As long ago as 1963, Charles De Visscher wrote in his commentary
on judicial interpretation:
"The function of interpretation is not to perfect a legal instrument with a
view to adapting it more or less precisely to what one may be tempted to
envisage as the full realisation of an objective which was logically
postulated, but to shed light on what was in fact the will of the Parties."
There could be no better response to the philosophy which inspires the
Judgment and the postulates it contains (particularly paras. 44-48).
(Signed) Andre Gros. [p 150]
DISSENTING OPINION OF JUDGE PETREN
[ Translation ]
To my regret, I have felt obliged to vote against the Judgment and to append
this dissenting opinion.
The main reason why I felt unable to vote for the Judgment lay in the broad
construction placed by the Court on the agreement concluded between the
Parties by their 1961 Exchange of Notes, which constitutes the sole basis of
the Court's jurisdiction to deal with the present case. In that respect I,
like my colleague Judge Ignacio-Pinto, share the view expressed by our
colleagues Judges Gros and Onyeama in their dissenting opinions, to which I
may therefore refer the reader. I need here say no more than that the only
question upon which the 1961 agreement entitles the Court to adjudicate is
whether a measure whereby Iceland extends its zone of exclusive fisheries
jurisdiction beyond a distance of 12 nautical miles from the baselines of
its territorial waters is well founded in international law. Certain
passages of the Judgment appear to partake of the notion that the disputed
extension by Iceland of its fishery zone from the 12-mile to the 50-mile
limit is without foundation in international law. Thus paragraph 53 of the
Judgment, after alluding to the contemporary tendencies of a number of
States to extend their fishery zones beyond the 12-mile limit, concludes by
observing that "the Court, as a court of law, cannot render judgment sub
specie legis ferendae, or anticipate the law before the legislator has laid
it down". Paragraph 67 reflects the same attitude even more clearly, for it
states that "Iceland's unilateral action . . . constitutes an infringement
of the principle enshrined in Article 2 of the 1958 Geneva Convention on the
High Seas", and that presupposes that the waters lying between the 12-mile
and the 50-mile limit do not form part of Iceland's fishery zone. This
notwithstanding, the operative paragraph of the Judgment confines itself in
subparagraph 1 to finding that the Regulations on fishery limits promulgated
by the Government of Iceland are not opposable to the United Kingdom, and it
appears from the paragraphs immediately preceding the operative part that
this finding is based on considerations which are wholly different in nature
from the question whether the extension of Iceland's fishery zone is in
conformity with international law. In the reasoning which leads up to the
operative paragraph of the Judgment the Court notes the existence, beyond
the 12-mile limit, of historic British fishing rights which debar Iceland
from opposing to the United Kingdom the extension of its fishery zone. To
this the Court adds that, as a coastal State, Iceland enjoys preferential
rights in the waters adjacent to the 12-mile limit and that the two Parties
are under an obligation to negotiate with a view to striking a just balance
between these two categories of right. [p 151]
In short, the operative paragraph does not give any reply to the primordial
question raised by the first submission of the British Government, namely
whether the challenged extension of Iceland's fishery zone has or has not
any foundation in international law. All that the British Government is told
is that the United Kingdom possesses historic rights in waters concerning
which the operative part of the Judgment fails to indicate whether they form
part of Iceland's fishery zone or are adjacent thereto. It seems to me that
the Parties were entitled to receive clarification on that point, more
especially because, as the Court itself admits in paragraph 69 of the
Judgment, the historic rights which a non-coastal State may assert within
the fishery zone of a coastal State have an inherently shorter lifespan
than those applying to the adjacent waters. Furthermore, it is obvious that
one may speak of the preferential rights of the coastal State only with
reference to waters beyond the fishery zone, an area within which that State
enjoys a jurisdiction that is in principle exclusive.
The absence of any reply to the question whether the extension by Iceland of
its fishery zone is in conformity with international law leaves in the
Judgment a void which is all the more conspicuous for the fact that the
problem is raised by the United Kingdom's very first submission. It is true
that counsel for the United Kingdom was led, by a question put by a Member
of the Court, to state during the oral proceedings that his Government's
second and third submissions could stand without the first and that it was
in its view therefore open to the Court to adjudicate upon them without
adjudicating upon the first. But that does not mean that the first
submission was withdrawn or in any way detract from its primordial
importance in the present case, considering the position adopted by Iceland
in extending its fishery zone.
Even if the United Kingdom had withdrawn its first submission during the
oral proceedings, that would not have dispensed the Court from adjudicating
upon the conformity of Iceland's present extension of its fishery zone with
international law, for Iceland, which has constantly asserted that this
measure is well founded in international law, has not consented to the
Court's not examining the validity of that contention. Both Parties were
therefore entitled to expect the Court to make a finding upon it.
While the documentation placed at the Court's disposal shows that the
dispute concerns the breadth of fishery zone which Iceland is entitled to
claim, there is on the other hand nothing to indicate any disagreement
between the Parties as to the principles which should govern the
regulation, in the waters adjacent to the fishery zone and in a framework
of agreed conservation measures, of the relationships between the
preferential rights of Iceland as the coastal State and the rights of other
States whose vessels fish in the same region. It is by no means certain that
the Court's intervention will be necessary to help the Parties regulate
their fishery relations once the limit of the fishery zone attributable to
Iceland is fixed. The present difficulties are caused by the recent
extension of the [p 152] fishery zone and the challenge brought against it
by the United Kingdom.
Furthermore, I consider that the 1961 agreement between the Parties does not
confer jurisdiction upon the Court to make any pronouncement with regard to
such preferential or historic rights as may exist within the waters adjacent
to the Icelandic fishery zone. I am therefore unable to concur in the
reasoning expounded by the Court in paragraphs 65 and 67 of the Judgment,
according to which the agreement concluded between the Parties in 1961
recognized the existence of the historic rights of the United Kingdom, thus
conferring a title upon the United Kingdom and correlative jurisdiction upon
the Court. In paragraph 69 the Court even finds it possible to treat these
rights as being as perennial as those of Iceland. Yet the substantive
provisions of the 1961 Exchange of Notes do not contain any reference to
recognition of the United Kingdom's historic rights in the waters adjacent
to the 12-mile fishery zone attributed to Iceland. Although it is reasonable
to suppose, as paragraph 65 of the Judgment does, that it was out of regard
for British interests that Iceland undertook to give the United Kingdom six
months' notice of any new measure for the extension of its fishery limits,
it is not in my view possible to say that recognition of the United
Kingdom's historic rights in the area now in dispute was covered by the
agreement of 1961, where they are not even mentioned. It is true that
pending its final judgment the Court indicated interim measures of
protection restricting the British catch in the disputed waters; but that
obviously could not signify that it regarded itself as competent also to
order such measures in its final judgment. What other type of interim
measures would appear more natural, pending a judgment fixing the breadth of
a fishery zone? The argument which paragraph 46 of the Judgment seeks to
draw from paragraph 12 of the Order of 17 August 1972 is in my view based on
a false interpretation of the latter. If the Court had found that the
extension of Iceland's fishery zone was in itself consistent with prevailing
international law, the question of the treatment proper to any interests of
the United Kingdom within that zonewhether, for example, they should be
dealt with by means of a period of adjustmentmight have arisen as a related
question calling for an answer from the Court. But there is no basis in the
1961 agreement for the Court to broach questions concerning certain historic
rights of the United Kingdom and measures of conservation without first
settling the question of the limits of Iceland's fishery zone.
By not settling the primordial question submitted to the Court in the
present case, the Judgment also sidesteps the question whether the 1961
agreement prohibits Iceland from implementing a measure extending its
fishery zone without waiting for the Court's judgment, once the United
Kingdom has referred the matter to the Court. If Iceland is so prohibited,
the enforcement of a measure extending its fishery zone might constitute a
breach of the obligation to wait for the Court's pronouncement, without the
measure in itself being contrary to the law of the sea. In such event, would
the measure still be non-opposable to the United Kingdom? The content of the
British record of the negotiations which led up to the 1961 [p 153]
agreement seems to me rather to indicate that the only guarantee the
agreement offers the United Kingdom against the immediate application of a
further extension of the Icelandic fishery zone is the six months' notice.
This is evidently designed to enable the United Kingdom to seise the Court
in time for it to indicate interim measures of protection before the date
fixed for the entry into force of the disputed extension. Thus the immediate
protection of the interests of the United Kingdom would depend on the
Court's appraisal of the situation and the effect, binding or otherwise, to
be attributed to the interim measures.
For years Iceland has been pursuing a consistent policy aiming at the
gradual extension of its fishery zone. This policy is in tune with the
similar trends, referred to in paragraph 53 of the Judgment, which have been
emerging in many parts of the world in recent years and whose importance at
the present time is clear from the preparatory documents of the Third
Conference on the Law of the Sea, as also from the statements which have
already been made at the Conference itself by numerous governments. Iceland
considered that it could rely upon the rising trend of customary law towards
the recognition of extended fishery zones. Whether Iceland was or was not
mistaken in this, the question remains whether, by enforcing the extension
of its fishery zone vis-ΰ-vis the United Kingdom without waiting for the
Court to give judgment, it was guilty of an infringement of the 1961
agreement which was sufficient in itself to render the measure extending the
fishery zone non-opposable to the United Kingdom. To answer this question in
the affirmative could have the result of preventing Iceland, through long
years of judicial proceedings, from benefiting like other coastal States
from an evolution in its favour of customary law. The present case itself
would afford an example of this, if Iceland eventually proved to be legally
entitled to extend its fishery zone.
The question of the prolongation of the effects of the jurisdictional clause
of the 1961 agreement has, however, several aspects. One might for example
enquire whether that clause, which was framed with the next, already
foreseen stage of the extension of Iceland's fishery zone in view, was meant
to restrict the Icelandic Government's freedom of action for so long as the
1961 agreement remained in force and thus to open the door to repeated
applications to the Court. The circumstances in which the agreement was
concluded do not appear to me to indicate that such was the intention of the
Icelandic Government. Even from the standpoint of the present Judgment, the
problem of the duration of the effects of the jurisdictional clause of the
1961 agreement is not absent. It arises, in particular, in connection with
the negotiations which the Parties, the Judgment stipulates, have an
obligation to undertake; for in my view the Parties are entitled to know
whether the Court would consider itself competent to continue to deal with
their dispute in the event that the negotiations did not take place or were
unsuccessful. What, for example, will be the situation if the dispute is not
settled before the expiry of the interim agreement between the Parties (13
November 1975)? Would the [p 154] present Judgment then have the effect of
prohibiting Iceland from proceeding, without waiting for a new judgment of
the Court, and with effect vis-ΰ-vis the United Kingdom, to the extension of
limits to which it might be entitled on account of the evolution of
international law?
It appears to me that the question whether the Court could again exercise
jurisdiction if the negotiations which should take place by virtue of the
Judgment came to nothing can be answered by analysing the interpretation of
the 1961 agreement on which the Judgment is based.
Without settling the question whether the recent extension by Iceland of its
fishery zone is in conformity with international law, the Court finds that
it is not opposable to the United Kingdom on account of the latter's
historic rights, and that it is necessary to establish, within a framework
of agreed measures of conservation, a regime wherein these historic rights
will be balanced against the preferential rights of Iceland as the coastal
State. The Court therefore considers itself competent to pronounce upon
questions of preferential and historic rights and measures of conservation
in the disputed waters independently of any consideration of the basis, if
any, in international law of an extension of Iceland's fishery zone. At the
same time the Court creates an obligation upon the Parties to undertake
negotiations on these points while taking into consideration a series of
recommendations enunciated in the Judgment. Yet these are matters which, if
they concern waters outside the fishery zones of coastal States, require by
their very nature to be regulated on a multilateral basis with the
participation of all those States whose interests are at stake. There are
international instruments which provide procedures to that end without
envisaging reference to the Court. So far as the North-East Atlantic is
concerned, the Federal Republic of Germany is the only State, apart from the
United Kingdom, to have expressed any desire that the Court should deal with
such questions, but the Court, by deciding not to join the parallel cases
instituted by these two States, deprived itself of the possibility of
prescribing joint negotiations between them and Iceland.
In its Judgment of 2 February 1973 the Court found that the 1961 agreement
was still in force. Iceland will doubtless be inclined to maintain the
extension of its fishery zone, since the Court has declared it unlawful only
vis-ΰ-vis the United Kingdom andby its Judgment in the other casethe
Federal Republic of Germany. Hence the possibility must be foreseen of
further disputes between the Parties over the exercise of their rights in
the belt between the 12-mile and the 50-mile limit. It is also possible that
disputes may arise between the Parties over the interpretation or
application of the guidelines laid down by the Court for the conduct of the
negotiations it has directed them to undertake. As the Judgment shows that
the Court, by considering it could leave aside the question of the
conformity with international law of Iceland's extension of its fishery
zone, regards itself as competent to deal with questions of fishing rights
and conservation measures beyond the 12-mile limit, there is no escaping the
conclusion that, according to the logic of the Judgment, a [p 155] whole
series of disputes born of the situation created by the Judgment would be
referable to the Court.
In the light of the foregoing considerations, I am of the view that in the
present Judgment the Court has considerably exceeded the jurisdiction
conferred upon it by the 1961 agreement.
***
While not pronouncing upon the above-mentioned questions, the Court has
devoted a considerable part of its Judgment to the effects, for the present
proceedings, of the interim agreement concluded between the Parties on 13
November 1973. There again, I regret to have to record that my opinion does
not coincide with that of the Court.
The interim agreement was concluded by an Exchange of Notes, the first of
which was a communication from the Minister for Foreign Affairs of Iceland
to the British Ambassador in Reykjavik, setting out the agreed terms, while
the second consists of the Ambassador's reply accepting the contents of the
agreement on behalf of the United Kingdom. The Minister begins by noting
that the arrangements in question were worked out in the course of
discussions between the two Governments with a view to concluding an interim
agreement relating to fisheries in the disputed area, pending a settlement
of the substantive dispute and without preju-dice to the legal position or
rights of either Government in relation thereto. Iceland's negative attitude
towards the Court precludes the idea that the settlement envisaged by the
Parties was that which might result from a judgment of the Court. That is
also clear from paragraph 7 of the Note, according to which the agreement
would run for two years from the date of the Exchange of Notes (13 November
1973). Even the greatest pessimist could not suppose that the present
proceedings before the Court would last until 13 November 1975. One must
therefore conclude that in fixing this time-limit the Parties must have had
something else in mind. Circumstantial evidence suggests that this must have
been the third United Nations diplomatic Conference on the Law of the Sea,
which was to open on 22 June 1974. For example, the United Kingdom, in
paragraph 297 of its Memorial on the merits, had held that Iceland, rather
than acting unilaterally to extend its fishery zone, ought to have awaited
the outcome of the Conference.
That being so, one may, I consider, legitimately ask whether the pursuit of
the proceedings before the Court during the period covered by the interim
agreement is compatible with that treaty. In the United Kingdom, the Prime
Minister stated to the House of Commons that the Government's position
before the Court remained exactly what it was before the conclusion of the
interim agreement, which had been concluded without prejudice to the case of
either Party. It is thus evident that the United Kingdom does not interpret
the interim agreement as implying that the proceedings before the Court
should be interrupted. In Iceland, the [p 156] interim agreement was the
subject of an Althing debate on 12 November 1973. When the Prime Minister
was criticized for not having insisted on the United Kingdom's discontinuing
its proceedings before the Court, he pointed out that it would have been
illogical of him to do so, given his position in regard to the 1961 Exchange
of Notes and vis-ΰ-vis the Court: would he not have appeared to be
recognizing the continuing, validity of the 1961 Exchange of Notes?
(Alpingistiπindi Vmraπur 1973, p. 536.) It follows that the interim
agreement takes no account of the proceedings before the Court and could not
constitute a bar to the United Kingdom's pursuance of them. That, however,
does not mean that the agreement should have no effect on the Court's
findings.
The interim agreement lays down, in respect of the period from 13 November
1973 to 13 November 1975, the conditions under which British vessels will
have the right to fish in the disputed area. Counsel for the United Kingdom
was asked whether that agreement definitively regulated, for the period
indicated, the relations of the two Parties, so far as the fisheries in
question were concerned, or whether it would be possible for the Court to
replace that regulation with another. The reply was that the judgment would
state the rules of customary international law between the Parties, defining
their respective rights and obligations. However, that would not mean that
the judgment would completely replace the interim agreement with immediate
effect in the relations between the Parties, for, as the British Government
saw the matter, the agreement would remain as a treaty in force. In any
event, the Parties would be under a duty fully to regulate their relations
in accordance with the terms of the judgment as soon as the interim
agreement ceased to be in force, i.e., on 13 November 1975, or at such
earlier date as the Parties might agree. On the other hand, the judgment
would have immediate effect in so far as it dealt with matters not covered
in the agreement.
Thus the British Government hinted at the possibility that the Court might
regulate, with immediate effect, certain matters which were left outside the
scope of the interim agreement. But it failed to indicate the possible
substance of these matters, which must at the same time be covered by the
Application and be relevant to the manner in which British fishing vessels
pursue their activities in the disputed area. Compare the Application and
the interim agreement as one may, one still fails to see what matters these
might be.
It must be concluded that the interim agreement definitively regulated the
conditions under which British vessels have the right to fish in the
disputed area between 13 November 1973 and 13 November 1975. A judgment of
the kind sought by the British Government could therefore not be implemented
before the expiry of the interim agreement. What the United Kingdom is
requesting of the Court is to state the law which would have been applicable
to the relations between the Parties in the event that they had not
concluded that agreement. Yet the essence of the judicial function is to
declare the law between the Parties as it exists, and not to declare what
the law would have been if the existing law had [p 157] not existed. The
conclusion of the interim agreement has therefore had the effect of
rendering the Application of the United Kingdom without object so far as the
period covered by the agreement is concerned.
As for the period which will begin on the expiry of the interim agreement,
i.e., on 13 November 1975, it is clear to me, above all after the
explanations obtained during the oral proceedings, that the Application of
the United Kingdom is tantamount to a request that the Court should define
the customary international law which should govern the conditions under
which British vessels will then be able to fish in the disputed area. Is it
possible for the Court to accede to such a request?
Like all domains of law, the law of the sea is subject to evolution. New
multilateral or bilateral international conventions come into being, and
customary law is modified. It is undeniable that one of the possible results
of the Third Conference on the Law of the Sea, which is being held at this
moment, will be a clarification or modification of the rules governing the
fisheries jurisdiction of coastal States. In paragraph 297 of its Memorial
on the merits, the British Government argues that Iceland, rather than take
precipitate and unilateral action, ought properly to have awaited the
outcome of the Conference, which will be considering such issues as the
breadth of exclusive fishery zones, the conservation of the living resources
of the high seas, and the special rights of coastal States. According to the
Memorial, the precedent of the 1958 and 1960 Geneva Conferences does not
justify Iceland in assuming that it will be impossible to reach agreement or
decide upon concerted measures to meet those needs of Iceland which the
community of States as a whole recognizes to be just and deserving of legal
protection. In fact, the British Government continued, the 1958 and 1960
Conferences laid the basis for a general recognition of the validity of
exclusive fishery zones up to a 12-mile limit and, on that basis, many
States negotiated international agreements, of which the Anglo-Icelandic
Exchange of Notes of 1961 was a case in point. The 1974 Conference might
well provide an even greater measure of agreement over new rules to be
incorporated into international law. The Government of the United Kingdom
stressed, however, in paragraph 298 of its Memorial, that what the
Conference might agree about changes in the existing law was irrelevant to
the present case before the Court.
At the stage of the oral proceedings, the British Government showed much
less optimism with regard to the results which might be expected from the
Third Conference on the Law of the Sea. This is clear from the written reply
given by counsel for the United Kingdom to the question whether it was
compatible with the position adopted in paragraph 297 of the Memorial to
request of the Court a decision intended to regulate the Parties' relations
with regard to fishing in a non-immediate future. The reply was to the
effect that the 1974 session was widely expected to be followed by a second
session in 1975, and that it appeared far from certain that any clear
outcome would have been produced before the [p 158] expiry of the interim
agreement; that was why the British Government had indicated in paragraph
298 of its Memorial that whatever a new Conference might agree about changes
in the law was beside the point. In the same reply the Government of the
United Kingdom explained that it intended to take a positive attitude
towards the negotiations on the many interrelated items with which the
Conference would be dealing, with a view to contributing to the adoption of
a new convention that might clarify a number of existing issues and further
the progressive development of international law. Nevertheless, the British
Government continued, even if a convention were to be concluded reasonably
quickly, it would remain to be seen how long it would take to enter into
force or have an impact upon the development of international law through
State practice, and it would also remain to be seen whether Iceland which
had not yet adhered to any of the Geneva Conventions of 1958 would become a
party to it. Hence, according to the British Government, the Court's
judgment would constitute an authoritative statement of the rights and
obligations of the Parties under existing law and might provide a basis for
the negotiation of arrangements to follow those contained in the interim
agreement. For those reasons, the British Government con-sidered it quite
compatible with the view expressed at the beginning of paragraph 297 of its
Memorial that it should seek of the Court a judgment on the United
Kingdom's submissions.
Dating as it does from 31 July 1973, the United Kingdom's Memorial on the
merits of the case could not have taken into account the effects of the
interim agreement of 13 November 1973. The circumstances in which the
Memorial was prepared gave way to a profoundly different situation once the
interim agreement had been signed, for it is only on 13 November 1975 that
customary international law will again govern the conditions under which
fishing is carried out in the disputed area. It is true that the British
Government is now of the opinion that, in all probability, the Third
Conference on the Law of the Sea will still not have changed anything by 13
November 1975. But, given the impossibility of foreseeing the changes
which, even in the near future, may affect an actively evolving field of
law, 1 find that there is no certainty on which the Court can base its
judgment: there is a very real possibility that a claim which at the present
moment has no legal justification may prove tomorrow to be well founded. The
Court ought therefore to decline any request which in effect calls upon it
to declare the customary law of the future.
I am unable to agree with the view, expounded in paragraph 41 of the
Judgment, that for the Court to espouse the above conclusions would
inevitably result in discouraging the making of interim arrangements in
future disputes with the object of reducing friction and avoiding risk to
peace and security. To my mind this argument, applied to the present case,
overlooks the fact that the interim agreement between the Parties will
remain in force after the delivery of the Judgment and that the Application
does not request the Court to interpret a treaty of immutable [p 159] verbal
content but to pronounce upon the future of a customary law in active
evolution. If the interim agreement were destined to expire on the date of
the Judgment, no difficulty would have arisen, and if the dispute concerned
the interpretation of a treaty, an interim agreement concerning its
application over a given period would not hinder the Court from ruling
before the end of that period on the interpretation and future application
of the treaty.
However, in subparagraphs 3 and 4 of the operative part of the Judgment, the
Court finds that the Parties are under mutual obligations to undertake
negotiations concerning their respective fishery rights in the disputed
area, negotiations in which they must take into account inter alia certain
preferential rights attributable to Iceland. As the Court's jurisdiction to
deal with the present case is founded solely on the jurisdictional clause
of the 1961 Exchange of Notes, and as that clause concerns only the
question whether a future extension by Iceland of its zone of exclusive
fisheries jurisdiction would be in conformity with international law, I
consider that the Court, by imposing on the Parties an obligation to
negotiate in respect of something else, has exceeded the limits of its
jurisdiction.
But that is not the only reason why I consider that the Court is not
competent to prescribe negotiations between the Parties.
The written reply to a question put to the Agent of the United Kingdom
reveals that the British negotiators first proposed the following form of
words for paragraph 7 of the interim agreement of 13 November 1973:
"The agreement will run for two years from the present date. The Governments
will reconsider the position before that term expires unless they have in
the meantime agreed to a settlement of the substantive dispute. In the
absence of such a settlement, the termination of this agreement will not
affect the legal position of either Government with respect to the
substantive dispute."
The Government of Iceland, however, requested the deletion of the central
portion of this text, and paragraph 7 was finally drafted in the following
terms:
"The agreement will run for two years from the present date. Its termination
will not affect the legal position of either Government with respect to the
substantive dispute."
To my mind, the deletion, at the request of the Icelandic Government, of the
reference to a reconsideration of the position before the expiry of the
interim agreement and to the possibility of agreeing in the meantime to a
settlement of the substantive dispute constitutes incontrovertible evidence
that Iceland did not accept any obligation to enter into fresh negotiations
with the United Kingdom for so long as the interim agreement remained in
force. Consequently, if Iceland prefers to concentrate upon the new [p 160]
Conference on the Law of the Sea without at the same time negotiating
bilaterally with the United Kingdom, there is nothing to oblige it to enter
into such negotiations.
In my view, it is impossible to overthrow this conclusion by quoting the
North Sea Continental Shelf Judgment, as paragraph 75 of the present
Judgment does. It must be recalled that the circumstances of the present
case are very different from those of North Sea Continental Shelf in which
the Parties, by common agreement, had requested the Court to indicate the
principles and rules of international law applicable to their dispute and
had undertaken to conclude an agreement in accordance with the Court's
decision. Neither is it, I feel, possible to regard my interpretation of the
interim agreement of 13 November 1973 as contrary to the Charter of the
United Nations, which also is appealed to in paragraph 75 of the Judgment.
However great the importance ascribed by the Charter to negotiations as a
peaceful means for the settlement of disputes, States remain perfectly free
to choose other peaceful means. There is nothing surprising in the fact that
Iceland, on the eve of the new Conference on the Law of the Sea, should have
refused to accept an obligation to continue negotiations with the United
Kingdom at bilateral level. As for the Althing resolution of 15 February
1972, cited in paragraph 77 of the Judgment as ruling out my interpretation
of the interim agreement, I consider, like my colleague Judge Gros and for
the same reasons, that the Court attributes to this resolution a meaning
which it does not possess. My view, in brief, is that the particular
circumspection and special care with which the Court considers it has acted
in regard to Iceland (see para. 17 of the Judgment) should have precluded
its outright rejection of an interpretation of the agreement, on that point,
which, given the prenatal history of that instrument, I personally find
inescapable.
***
For all these reasons, I consider that the Application of the United Kingdom
is without object with regard both to the period from 13 November 1973 to
13 November 1975 and to the subsequent period.
***
There remains the period between the putting into effect of the Icelandic
Regulations which are in dispute (1 September 1972) and the coming into
force of the interim agreement (13 November 1973). In my view, it is only so
far as that period is concerned that is it necessary to consider whether
Iceland's extension of its fishery zone was from the beginning, and
subsequently remained, contrary to international law. It was, moreover,
solely in relation to the situation during that period that I found it
necessary to consider those aspects of the present case with which I dealt
in the first part of this dissenting opinion. [p 161]
As there does not exist between the two States any convention on which the
Icelandic decision could be founded, Iceland could seek its justification
only in customary international law. The first two United Nations
Conferences on the Law of the Sea amply demonstrated that no such general
rule of customary international law existed in 1958-1960. If there is any
general customary rule that Iceland can rely on, it must have come into
being since 1960. Let us therefore consider what evolution may have taken
place.
It is true that an increasing number of coastal States, whether by
proclaiming the extension of their territorial waters or by claiming
fishery zones beyond those waters, have claimed an exclusive fisheries
jurisdiction extending up to the 50-mile or even the 200-mile limit.
Never-theless, even if one confines one's attention to the zone lying
between the 12-mile and the 50-mile limits, the number of States that have
claimed exclusive fisheries jurisdiction therein cannot be considered
sufficiently large to justify the conclusion that a new rule of law,
generally accepted as valid by the international community, is being
applied. Furthermore, the States whose interests are threatened by these
claims have constantly protested. Hence another element which is necessary
to the formation of a new rule of customary law is missing, namely its
acceptance by those States whose interests it affects.
In the course of the proceedings before the Court, attention has been drawn
to the recent resolutions of United Nations organs concerning permanent
sovereignty over natural resources. In its resolution 3016 (XXVII) of 18
December 1972, the General Assembly reaffirmed the right of States to
permanent sovereignty over all their natural resources, on land within their
national boundaries as well as those found in the sea-bed and the subsoil
thereof within their national jurisdiction and in the superjacent waters.
Approved by 102 votes to 0 with 22 abstentions, this resolution was followed
by a recommendation and another resolution in similar terms, the first being
adopted by the Committee on Natural Resources of the Economic and Social
Council, and the second by the Economic and Social Council itself. The
content of these texts, which are of more recent date than the Application
instituting the present proceedings, differs on one fundamental point from
the Geneva Convention on the Continental Shelf, whose provisions are
generally regarded as codifying the law accepted around 1958: the
Convention does not attribute to the coastal State any exclusive fishing
rights with regard to fish swimming in the waters above the continental
shelf.
The General Assembly resolution is of special interest in the present
proceedings, for Iceland has referred to the doctrine of the continental
shelf as being the legal basis of the contested extension of its fishery
zone. The question is therefore whether the innovation represented by the
reference to superjacent waters in the General Assembly resolution has had
the effect of conferring upon the coastal State a jurisdiction not inherent
in the original concept of the continental shelf, which would be [p 162]
equivalent to the sudden creation of a new rule of customary law. Now,
without having to go into the general question of whether a resolution of
the General Assembly can create new law, I must at all events stress one
prerequisite of such creation, namely that the States voting for the
resolution must truly have envisaged and accepted the possibility of its
immediately acquiring binding force. But the complexity of the
circumstances in which resolution 3016 (XXVII) was adopted, the statements
accompanying the vote and the well-known attitude of certain States
regarding fishery zones do not justify the conclusion that the resolution
was passed by a large majority of States with the intention of creating a
new binding rule of law and of prejudging whatever decision the Third
Conference on the Law of the Sea might take on the subject. However
revelatory the resolution may be of a current of opinion flowing in favour
of the claims of Iceland and other States, its adoption by the General
Assembly could not have sufficed to transform the existing law and give
birth to a new general rule of customary law conferring on the coastal State
exclusive fisheries jurisdiction in the waters above its continental shelf.
This remark applies a fortiori to the various expressions of doctrinal
position or opinion volunteered by States during the preparatory stage
before the Conference.
***
For the foregoing reasons I consider that the submissions put forward and
maintained by the United Kingdom should have been rejected as without
object, except in relation to the period between Iceland's implementation
of the extension of its zone of exclusive fisheries jurisdiction up to the
50-mile limit (1 September 1972) and the coming into force of the interim
agreement between the Parties (13 November 1973). Considering as I do that
the measure decided by Iceland was without foundation in international law,
I find that its application to British fishing vessels during the
above-mentioned period constituted an infringement of international law
vis-ΰ-vis the United Kingdom. In the light of the considerations I have put
forward above, this finding does not mean that, on the termination of the
interim agreement concluded between the Parties on 13 November 1973, the
extension of Iceland's fishery zone should automatically be considered as
still inconsistent with international law.
The system of the Judgment did not however enable me to cast a vote
expressing my position in regard to the period from 1 September 1972 to 13
November 1973. The reason is twofold: no distinction is made between
different periods of application of the Icelandic measure and, in declaring
that measure non-opposable to the United Kingdom, the Court bases itself
solely on considerations concerning the historic rights [p 163] of the
United Kingdom and studiously avoids pronouncing upon the only question in
respect of which the 1961 agreement conferred jurisdiction upon it, that of
the conformity with international law of the extension of Iceland's fishery
zone.
No other course was therefore left to me but to vote against the Judgment
in its entirety.
(Signed) S. Petren. [p164]
DISSENTING OPINION OF JUDGE ONYEAMA
1. Although I agree that the Regulations concerning the Fishery Limits off
Iceland (Reglugerπ urn fiskveiπilandhelgi Islands) promulgated by the
Government of Iceland on 14 July 1972, and constituting a unilateral
extension of the exclusive fishing rights of Iceland to 50 nautical miles
from the baselines specified therein are not opposable to the Government of
the United Kingdom; and, although I agree also that, in consequence, the
Government of Iceland is not entitled unilaterally to exclude United Kingdom
fishing vessels from areas to seaward of the fishery limits agreed to in the
Exchange of Notes of 11 March 1961 or unilaterally to impose restrictions on
the activities of those vessels in such areas, my reasons for reaching these
conclusions are so fundamentally different from those of the Court that I
feel unable to vote for the first part of the operative clause of the
Judgment for the reasons given by the Court. For the rest of the Judgment,
it is my view that the Court settled an issue on which the Parties were not
in dispute. In my view the Court's approach to the entire case has led it to
refrain from deciding the sole dispute before it, and to consider and settle
an issue on which the Parties were not shown to be in difference and on
which the Court's jurisdiction is very much in doubt.
2. At the jurisdiction phase of the present case FN1, the Court said:
--------------------------------------------------------------------------------------------------------------------- FN1
Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the
Court (I.C.J. Reports 1973, p. 3).
---------------------------------------------------------------------------------------------------------------------
"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." (I.C.J. Reports 1973, p. 7, para. 11.) (Emphasis
added.)
In the written submissions filed on behalf of the Government of the United
Kingdom at the close of the oral proceedings in the jurisdiction phase it
was stated, inter alia:
"(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 [p 165] 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". (I.C.J. Reports 1973, p. 6, para. 9
(c).)
3. The question which arises in the present case is what is the dispute
between the Parties which has been submitted to the Court and which the
Court decided on 2 February 1973 it has jurisdiction to entertain? It seems
to me that the answer to this question is to be found in the discussions
between the Parties preceding the Exchange of Notes of 1961, the Exchange of
Notes itself, the subsequent communications between the Parties and the
various enactments of the Parliament of Iceland. An examination of these
materials appears to me to show that the dispute between the Parties in the
case in hand is about the unilateral extension of Iceland's exclusive
fisheries jurisdiction beyond the 12 miles around Iceland agreed in the
Exchange of Notes of 1961.
4. The negotiations conducted between the United Kingdom and Iceland which
resulted in the Exchange of Notes of 1961 were necessitated by a desire on
both sides to seek adjustment of the differences between them over the
proposed extension by Iceland of her fishery jurisdiction round her coast
from 4 miles to 12 miles after the conclusion of the United Nations
Conference on the Law of the Sea in 1958. The United Kingdom opposed this
proposed extension on the ground that it had no basis in international law,
but with the emergence of a general trend towards accepting a 12-mile limit
of fishery jurisdiction after the Geneva Conference on the Law of the Sea it
was possible for the Parties to reach the agreement constituted by the
Exchange of Notes of 1961.
The record of the discussions during these negotiations is illuminating; it
shows clearly what the dispute between the Parties was about, and what it
was the United Kingdom was anxious to guard against by the compromissory
clause of the Exchange of Notes on which it had insisted during the
negotiations.
5. This record shows that at the first meeting on 1 October 1960, between
the Icelandic delegation and the United Kingdom delegation, the leader of
the Icelandic delegation in stating the views of the Icelandic Government
made the points:
"(a) Iceland is in a unique position in that its people are dependent
entirely upon the coastal fisheries; this is universally recognized;
(b) it is therefore essential for the Icelandic Government to safeguard its
coastal fishery resources: conservation measures applicable to all alike
were not sufficient for this. It is, therefore, the policy of the Icelandic
Government to secure exclusive fishery jurisdiction 'In accordance with
international law". The [p 166] International Law Commission of the United
Nations had, in 1956, drawn attention to countries which found themselves in
this special position." (Emphasis added.)
The Icelandic delegation made it clear that future extensions of exclusive
fisheries jurisdiction could not be ruled out, and paragraph VIII of the
Icelandic Memorandum handed to the United Kingdom delegation stated:
"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."
6. Throughout these negotiations the question of Iceland's preferential
rights or of conservation was not discussed, although the United Kingdom
delegation, on a number of occasions, suggested that it might consider
restrictions on fishing by the United Kingdom outside the 12-mile zone
during the phasing-out period yet to be agreed on, if such restrictions were
shown to be necessary in the interests of conservation. The Icelandic
delegation did not take up these suggestions, and left no doubt that outside
the 12-mile zone its long-term aim remained the extension of Iceland's
exclusive fishery jurisdiction. The Records of Anglo-Icelandic Discussions
of 1 November 1960 bring this out clearly as the following extract from page
33 shows:
"Sir Patrick Reilly then turned to the question of the assurance to be given
by the Icelandic Government. He asked Miss Gutteridge to explain the British
position on this. Miss Gutteridge said we were glad to know that an
assurance was considered possible on the Icelandic side. We could not of
course oppose any further extension of limits made by Iceland in accordance
with international law. At the same time we held that extensions could only
be by agreement and could not be unilateral even if a coastal State offered
arbitration. For this reason we could not accept the last sentence in the
text for the assurance proposed by the Icelandic Government. While in
Reykjavik the British Delegation had worked out a formula which seemed to
provide a possible basis agreeable to both sides and suggested that this
formula should now be discussed. Miss Gutteridge handed over a copy of the
following proposed text:
'Except in accordance with the terms of any subsequent agreement between
the United Kingdom and Iceland or any subsequent [p 167] multilateral
agreement which embodies a generally accepted rule of law in relation to
fishing limits, the Icelandic Government will not take any action to exclude
vessels registered in the territory of the United Kingdom from fishing in
any area outside the 12-mile limit.'
After studying the text Mr. Andersen said that it was necessary for the
purpose of presentation to public opinion in Iceland to leave the Icelandic
Government's hands 'untied' in respect of possible further extensions of
fishery jurisdiction. The Icelandic Government would therefore as a minimum
want to cover in the wording of the assurance the possibility of applying
customary law, as well as international law. Opinion in the world was
always changing and Iceland would want to take advantage of that if it were
favourable without waiting for changes in international law which always
seemed diffi-cult to achieve (e.g., the two Geneva Conferences)."
7. The history and nature of the dispute which was then being settled leave
no doubt in my mind that the assurance then demanded by the United Kingdom,
and subsequently given by Iceland about future extensions, could not be
anything else but an assurance that Iceland would not, in the future, seek
to extend her exclusive fishery jurisdiction beyond the 12-mile limit as she
was then seeking to do from 4 miles to 12 miles except in accordance with
the terms of the assurance.
8. The Icelandic delegation had left no-one in any doubt that the exclusive
fishery jurisdiction over the 12-mile zone, which was then conceded, was
only a first step towards ultimate extension of fishery jurisdiction over
the entire continental shelf of Iceland. At a meeting in Reykjavik between
the two delegations on 2 December 1960, the Foreign Minister of Iceland said
that the aim of the Icelandic Government was the continental shelf; they
were, however, ready to state their intention to base their action on rules
of international law and also their willingness to submit any dispute to the
International Court.
9. In these negotiations preceding the Exchange of Notes, no mention was
made of the need for conservation of the fish-stocks around Iceland nor of
Iceland's preferential rights as matters on which either of the parties
required assurances then or thereafter. These matters were not discussed at
all as they were not the problems created by the proposed extension of
Iceland's exclusive fishery jurisdiction from 4 miles to 12 miles in 1958.
10. In the light of the foregoing, it seems to me that what the United
Kingdom and Iceland had in mind when they agreed in the Exchange of Notes of
11 March 1961 that "in case of a dispute in relation to such [p 168]
extension, the matter shall, at the request of either party, be referred to
the International Court of Justice" was a dispute in relation to the
unilateral extension of fishery jurisdiction by Iceland beyond the limit
then agreed. It was precisely such a dispute which arose following a
statement of policy by the Government of Iceland on 14 July 1971. This
policy statement was, in the material part, in the following terms:
"Territorial waters. That the agreements on fisheries jurisdiction with the
British and the West Germans be terminated and that a decision be taken on
the extension of fisheries jurisdiction to 50 nautical miles from base
lines, and that this extension become effective not later than September
1st, 1972. Furthermore, that a decision be taken on 100 nautical mile
pollution jurisdiction. In these matters of jurisdiction over coastal
waters, the government will consult the opposition parties and give them an
opportunity to follow all developments in this field."
11. In its aide-memoire of 31 August 1971 in reply to the United Kingdom's
protests over the policy statement the Icelandic Government said (inter
alia):
"In order to strengthen the measures of protection essential to safeguard
the vital interests of the Icelandic people in the seas surrounding its
coasts, the Government of Iceland now finds it essential to extend further
the zone of exclusive fisheries jurisdiction around its coasts to include
the areas of sea covering the continental shelf. 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."
To this the United Kingdom replied in an aide-memoire of 27 September 1971
as follows:
"The British Government have studied the contents of the Government of
Iceland's aide-memoire of 31 August 1971 concerning a proposal by the
Government of Iceland 'to extend further the zone of exclusive fisheries
jurisdiction around its coasts to include the area of sea covering the
continental shelf. The British Government wish to place on record their view
that such an extension of the fishery zone around Iceland would have no
basis in international law.
The British Government further cannot accept the view expressed in the
aide-memoire that the object and purpose of the provision, contained in the
Anglo-Icelandic Exchange of Notes of March 1961, for recourse to judicial
settlement of disputes relating to an extension of fisheries jurisdiction
around Iceland have been fully achieved. The British Government wish
formally to reserve all their rights under [p 169] that agreement including
the right to refer disputes to the International Court of Justice.
The British Government note the Government of Iceland's proposal of further
discussions. Without prejudice to their legal position outlined above the
British Government are prepared to enter into further exploratory
discussions with the Government of Iceland."
12. On 15 February 1972 the Parliament of Iceland passed the resolution
which, in view of its critical importance, is set out in full:
"The Althing reiterates the fundamental policy of the Icelandic People that
the continental shelf of Iceland and the superjacent waters are within the
jurisdiction of Iceland and adopts the following Resolution:
1. That the fishery limits will be extended to 50 miles from base-lines
around the country, to become effective not later than 1 September 1972.
2. 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.
3. That efforts to reach a solution of the problems connected with the
extension be continued through discussions with the Governments of the
United Kingdom and the Federal Republic of Germany.
4. That effective supervision of the fish stocks in the Iceland area be
continued in consultation with marine biologists and that the necessary
measures be taken for the protection of the fish stocks and specified areas
in order to prevent over-fishing.
5. That co-operation with other nations be continued concerning the
necessary measures to prevent marine pollution and authorizes the Government
to declare unilaterally a special jurisdiction with regard to pollution in
the seas surrounding Iceland."
13. The discussions which followed between the United Kingdom and Iceland in
an effort to find a "practical solution to the problem" did not alter the
nature of the claim Iceland was making nor the nature of the dispute. The
suggestions by the United Kingdom for mutually agreed conservation measures
as a solution to the problem of possible injury to fish stocks in the area,
and for limitation of the catch of demersal fish as an interim measure
pending the elaboration of a multilateral agreement within the North-East
Atlantic Fisheries Commission, were not accepted by Iceland which was
concerned to maintain the exclusive character of its [p 170] claim to the
fishery in the area, while it remained ready to consider practical
arrangements under which British ships might be permitted, subject to
certain conditions, to continue to fish in the area in question for a
limited phase-out period. It evinced no interest in the question of its
preferential rights or conservation measures in the area as a possible
answer to its claim.
14. In the jurisdiction phase of the present case, the Court considered what
the issue before it was, and said:
"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." (Emphasis added.) (I.C.J. Reports 1973, p. 20,
para. 42.)
This "latter point" was covered in the first submission of the United
Kingdom in its Application.
15. Regarding the second submission in the Application the Court, in the
jurisdiction phase, dealt with it in paragraphs 41 and 42 of the Judgment.
Paragraph 41 is as follows:
"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." (I.C.J. Reports 1973, p. 20, para. 41.) [p 171]
It is to be noted with reference to this second submission, which is
repeated in more elaborate form in the Memorial and in the submissions at
the end of the oral proceedings, that it is hypothetical, and based on the
assumption that Iceland, as a coastal State in a special situation, raises
questions concerning conservation of fish stocks and preferential rights;
but Iceland has not raised these questions in any of the negotiations or in
any of the documents it saw fit to transmit to the Court. I understand the
statements of the Court cited above to mean that the exceptional dependence
of Iceland on its fisheries for its subsistence and economic development,
and the principle of conservation (including a conservation regime under
which Iceland enjoys preferential rights) were recognized by the United
Kingdom, and were, therefore, not in issue. The issue before the Court was
whether it had jurisdiction to determine whether Iceland was competent
unilaterally to assert an exclusive fisheries jurisdiction extending beyond
the 12-mile limit. It was on this dispute, about the validity of the
extension, that the Court decided it had jurisdiction.
16. In the forefront of the submissions of the United Kingdom in the
Application and in the Memorial on the merits was a request for a decision
by the Court 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. This, it seems to me, was the gravamen of the dispute, but
the Court now declines to decide it. The decision appears to approach the
dispute, not from the point of view of the conflict of the extension with
any conventions or with customary international law, but from the point of
view that the extension was an exercise of preferential rights which did not
give due regard to established rights. This was not the dispute between the
Parties and it forms no part of the claim made by Iceland.
17. I am of the opinion that Article 2 of the High Seas Convention and
Article 3 of the Continental Shelf Convention FN1 provide a basis in
positive international law for deciding that the extension has no basis in
international law; and the Court, having found that the concept of the
fishery zone, and the extension of that fishery zone up to a 12-mile limit
from baselines, appear now to be generally accepted FN2 as customary
international law, should have drawn the conclusion that the unilateral
extension to a 50-mile limit by Iceland with which this case is concerned is
contrary to international law, and stated that conclusion in the operative
clause of the Judgment.
--------------------------------------------------------------------------------------------------------------------- FN1
"The
coastal State has no jurisdiction over the superjacent waters" [of the
continental shelf] (I.C.J. Reports 1969, p. 37, para. 59).
FN2 See para. 52 of the Judgment.
---------------------------------------------------------------------------------------------------------------------
By introducing the concept of preferential rights into the case and linking
its Judgment FN3 with this concept, the Court, in my view, took [p 172]
cognizance of matters which were not in dispute between the Parties and
which were not covered by the compromissory clause of the Ex-change of Notes
of 1961.
--------------------------------------------------------------------------------------------------------------------- FN3
Operative part, subparas. 3 and 4.
---------------------------------------------------------------------------------------------------------------------
As I have endeavoured to point out, the discussions preceding the Exchange
of Notes did not indicate that any concern was felt about the future
application of conservation measures outside the 12-mile limit then agreed.
18. In the discussions after the promulgation of the Regulations which
purported to extend Iceland's fishery jurisdiction to 50 miles from the
existing baselines, Iceland appeared to be interested only in a temporary
arrangement with the United Kingdom, and not in any permanent bilateral or
multilateral conservation or catch-limitation arrangement in which it would
be entitled to exercise preferential rights and other interested States
would continue to fish in the area.
19. Thus, in a Note dated 11 August 1972, that is after the filing of the
Application in this case and the hearing of oral argument on the Request for
the indication of interim measures of protection, the Government of Iceland
made certain proposals to the Government of the United Kingdom and
requested "positive replies to two fundamental points" FN1.
--------------------------------------------------------------------------------------------------------------------- FN1
See Annex 10 to the Memorial on the merits.
---------------------------------------------------------------------------------------------------------------------
This Note forms part of a series of proposals and counter-proposals which
passed between the two Governments in their endeavour to work out an
acceptable interim arrangement "which would last only until the Court had
given its decision on the legality of the proposed action by the Government
of Iceland or until that question had been disposed of in some other
way". FN2
--------------------------------------------------------------------------------------------------------------------- FN2
Memorial on the merits, para. 31.
---------------------------------------------------------------------------------------------------------------------
It would, I think, be wrong to regard these proposals and counterproposals,
which were clearly related to negotiations for an interim regime, as
indicative of the nature of the original dispute which had, in fact,
crystallized with the filing of the Application.
20. Iceland's disinclination to contemplate the concept of preferential
rights in the waters in question was brought out very sharply at the
eleventh meeting of the North-East Atlantic Fisheries Commission in London
on 9 May 1973. On the question of the activation of Article 7 (2) FN3 of the
Convention FN4 the Summary Record of the Second Session has the following,
inter alia:
--------------------------------------------------------------------------------------------------------------------- FN3
"Measures for regulating the amount of total catch, or the amount of fishing
effort in any period, or any other kinds of measures for the purpose of the
conservation of the fish stocks in the Convention area, may be added to the
measures listed in paragraph 1 of this Article on a proposal adopted by not
less than a two-thirds majority of the Delegations present and voting and
subsequently accepted by all Contracting States in accordance with their
respective constitutional procedures."
FN4 The North-East Atlantic Fisheries Convention of 1959.
---------------------------------------------------------------------------------------------------------------------
"The Icelandic delegate reported that on account of the extension of
Icelandic fishery limits to 50-miles and the activities of some [p 173]
countries within the limits the Icelandic Government had reconsidered the
position and had decided to postpone the activation of Article 7 (2). In
reply to a question from the President, the Icelandic delegate said he was
unable to say when his Government would ratify Article 7 (2) powers. The
Icelandic Government believed that coastal States had prime responsibility
to manage and prior rights to use marine resources off their coasts. Catch
quotas appeared to conflict with these rights and the problem would be
raised at next year's Law of the Sea Conference which was the only forum for
discussion of it. It would be very difficult for Iceland to accept a catch
quota system which did not harmonize with its policy in regard to fishery
limits." (Emphasis added.)
21. Iceland has not, so far as I can see, asserted any claim to
preferential rights in the area in question; on the other hand, the United
Kingdom has always stood ready to concede such rights if they were asserted
on conservation grounds and in circumstances of catch-limitations. It does
not appear to me to be possible to have a dispute where there is no
difference on a common issue between the parties, or where a right is
conceded. The Permanent Court of International Justice defines a dispute as
"a disagreement on a point of law or fact, a conflict of legal views or of
interests between two persons FN1". As I understand it, for a dispute to
exist, it should clearly appear that the claim of one party is positively
opposed by the other, and it is not sufficient merely for it to appear that
the interests of the two parties are in conflict.
--------------------------------------------------------------------------------------------------------------------- FN1
P.C.I.J., Series A, No. 2, p. II.
---------------------------------------------------------------------------------------------------------------------
22. The claim clearly put forward and positively opposed in this case is
Iceland's entitlement under international law to extend its exclusive
fishery jurisdiction to 50 miles from the baselines around its coast; that
was the point which this Court decided it had jurisdiction to determine.
23. The Court derives its jurisdiction in this case from the compromissory
clause of the Exchange of Notes of 1961. I think the words "in relation to
such extension" in that clause cannot reasonably be interpreted as including
disputes about conservation, catch-limitations and prefer-ential rights
(which are not susceptible of unilateral delimitation) within the range of
disputes the Parties agreed to refer to the Court; and in deciding that the
Parties were obliged to negotiate these matters, the Court, to my mind,
exceeded the jurisdiction conferred on it by the Exchange of Notes and
settled a non-existent dispute.
(Signed) Charles D. Onyeama. |
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