25 July 1974

 

General List No. 55

 
     

international Court of Justice

     
 

Fisheries Jurisdiction

 
     

United Kingdom

 

v. 

Iceland

     
     
 

Judgement

 
     
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BEFORE:

President: Lachs;
Judges: Forster, Gros, Bengzon, Petren, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimenez de Arechaga, Sir Humphrey Waldock, Nagendra Singh, Ruda

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1974.07.25_fisheries1.htm
   
Citation: Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 3 (July 25)
   
Represented By: United Kingdom: Mr. D. H. Anderson, Legal Counsellor in the Foreign and Commonwealth Office, as Agent;
Assisted by
the Rt. Hon. Samuel Silkin Esq., QC, MP, Attorney-General;
Mr. G. Slynn, Junior Counsel to the Treasury;
Mr. J. L. Simpson, CMG, TD, Member of the English Bar;
Professor D. H. N. Johnson, Professor of International and Air Law in the University of London, Member of the English Bar;
Mr. P. G. Langdon-Davies, Member of the English Bar, Dr. D. W. Bowett, President of Queens' College, Cambridge, Member of the English Bar, as Counsel;
Mr. J. Graham, Fisheries Secretary, Ministry of Agriculture, Fisheries and Food;
Mr. M. G. de Winton, CBE, MC, Assistant Solicitor, Law Officers' Department;
Mr. G. W. P. Hart, Second Secretary, Foreign and Commonwealth Office, as Advisers.
 
     
 
 
     
 

[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 concerned—cod and haddock—the 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-à-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 ports—Hull, 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.

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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 rights—this 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, when—contrary 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 communis—Iceland 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 applaud—and 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 development—but 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 troisième Conference sur le droit de la mer", Annuaire français 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 Judgment—its 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.

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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).
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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.

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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 Industry—A 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).
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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.

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FN1 All of the Applicant's submissions are set out in para. 11 of the Judgment.
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***

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 limits—an aspiration also embedded in the treaty—had 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.

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FN2 Judgment of 2 February 1973, I.C.J. Reports 1973, pp.8-16.
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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-à-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.

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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.
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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.

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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).
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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.

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FN1 Logically, it does not follow that because “protest” shows lack of “acquiescence” that lack of protest shows acquiescence. The matter is discussed in D’Amato, The Concept of Custom in International Law (1971), at pp. 85, 98-102, 195.
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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]

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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.
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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.

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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.
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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

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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".
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***

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.

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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.
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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.)

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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.
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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]

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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.
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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.

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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.
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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.

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FN1 On the relationship between the Icelandic claims and the development of the law of the sea, see section III.
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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.

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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).
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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 1959—which 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).

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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."
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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).

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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.
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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 dispute—and 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.

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FN1 In this sense, cf. Katz, "Issues Arising in the Icelandic Fisheries Case", Internationa! and Comparative Law Quarterly, XXII-I (January 1973), p. 95.
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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.

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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).
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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.
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FN2 Blackstone, Commentaries on the Laws of England, Introduction, para. 3, 4th ed., Oxford, 1770, pp. 67, 75.
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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]

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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.
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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".

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FN1 Brownlie, Principles of International Law, 2nd ed., Oxford, 1973, p. 196.
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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."

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FN2 Pufendorf, De jure naturae et gentium, translated from the Latin by C. H. and W. A. Oldfather, Carnegie Institute, 1934, IV, 5, 5.
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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.

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FN1 Grotius, Mare liberum sive de iure, quod Batavis competit ad Indicana commercia, dissertatio, Ed. de H. Cocceius, Lausannae, 1752, IV, p. 469.
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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.

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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.
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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:

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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.
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"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 "

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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.
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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."
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FN2 Annuaire de l'Institut de Droit international, 1928, p. 755.
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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.
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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.
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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.

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FN2 Ferron, Le droit international de la mer, Paris 1960, Vol. II, p. 141.
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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 platform—and the difficulty resulting from the existence of coasts practically without a continental shelf—was 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.

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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.
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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 zones—6 sea miles, 12 sea miles, and even 200 sea miles—and 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."

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FN1 Yearbook of the International Law Commission, 1956, Vol. II , p. 265.
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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.

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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.
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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.

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FN2 This "creeping jurisdiction" was observable between 1967 and 1971: Kahden, Die Inanspruchnahme von Meereszonen und Meeresbodenzonen durch Kustenstaalen, 2nd ed. 1971, preface.
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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.

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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.
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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.

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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.
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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.

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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).
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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.

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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.
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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.

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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".
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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.

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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.
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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.

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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.
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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.

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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.
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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-à-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?

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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.
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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
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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.
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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]

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FN2 Castaneda, "The Concept of Patrimonial Sea in International Law", Indian Journal of International Law, Vol. 12, No. 4, October 1972, p. 538.
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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

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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).
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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.

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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 interêts economiques dans revolution du droit de la mer, Geneva, 1971, p. 119.
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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.

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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).
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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.

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FN2 This is, I think, the general opinion. On the question of the nature of the high seas, see Jenisch, Das Recht zur Vornahme militärischer 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.
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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.

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FN1 See also CR 74/1, pp. 82-83.
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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).

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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.
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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 opinion—and 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 1958—that 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.

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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.
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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. 116—a 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]

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FN1 As also is the Federal Republic of Germany, Applicant in the other Fisheries Jurisdiction case now before the Court.
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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 Notes—to 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.

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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.
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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).

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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.
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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 law—treaty law or customary law—according 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 explains—if there were any need, the text being clear—the 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.

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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 1972—at 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 Application—there 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

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FN1 Quotations translated from French by the Registry.
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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-à-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 dispute—but 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 reserved—thus 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 States—of which there are now not many—which 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 zone—whether, for example, they should be dealt with by means of a period of adjustment—might 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-à-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-à-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-à-vis the United Kingdom and—by its Judgment in the other case—the 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-à-vis the Court: would he not have appeared to be recognizing the continuing, validity of the 1961 Exchange of Notes? (Alpingistiðindi Vmraður 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-à-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 (Reglugerð urn fiskveiðilandhelgi 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:

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FN1 Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court (I.C.J. Reports 1973, p. 3).
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"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.

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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.
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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.

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FN3 Operative part, subparas. 3 and 4.
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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.

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FN1 See Annex 10 to the Memorial on the merits.
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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

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FN2 Memorial on the merits, para. 31.
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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:

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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.
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"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.

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FN1 P.C.I.J., Series A, No. 2, p. II.
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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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