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[p.175]
The Court,
composed as above,
delivers the following Judgment:
1. By a letter of 26 May 1972, received in the Registry of the Court on 5
June 1972, the State Secretary of the Foreign Office of the Federal Republic
of Germany 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 juris-diction.
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 27 June 1972 from the Minister for Foreign Affairs of
Iceland, received in the Registry on 4 July 1972, the Court was informed
(inter alia) that the Government of Iceland was not willing to confer
jurisdiction on the Court, and would not appoint an Agent.
4. On 21 July 1972, the Agent of the Federal Republic of Germany 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 [p 177] 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.
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 Federal
Republic of Germany and a Counter-Memorial by the Government of Iceland. The
Memorial of the Government of the Federal Republic 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 8 January 1973,
after due notice to the Parties, a public hearing was held in the course of
which the Court heard the oral argument on the question of the Court's
jurisdiction advanced on behalf of the Government of the Federal Republic
of Germany. 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 Federal Republic of
Germany 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 Federal Republic and 15 January 1974 for the
Counter-Memorial of the Government of Iceland. The Memorial of the
Government of the Federal Republic of Germany 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
Federal Republic of Germany was invited to submit to the Court any
observations which the Government of the Federal Republic might wish to
present on the question of the possible joinder of this case with the case
instituted on 14 April 1972 by the United Kingdom against the Republic of
Iceland (General List No. 55) 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 25 September 1973, the Agent of the
Federal Republic 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 Federal
Republic on possible 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 United Kingdom
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 28 March and 2 April 1974, after due notice to the Parties, public
hearings were held in the course of which the Court was addressed by the
Agent and counsel and by a counsel and expert on behalf of the Federal
Republic of Germany on the merits of the case; the Government of Iceland [p
178] was not represented at the hearings. Various Members of the Court
addressed questions to the Agent of the Federal Republic during the course
of the hearings, and replies were given either orally at the hearings or in
writing. Copies of the verbatim record of the hearings and of the written
replies to questions were transmitted to the Government of Iceland.
10. The Court does not include upon the bench any judge of the nationality
of either of the Parties. However, the Government of Iceland did not
indicate any intention to avail itself of the right conferred upon it by
Article 31, paragraph 3, of the Statute of the Court; and in the present
phase of the proceedings the Agent for the Federal Republic of Germany
informed the Court in the above-mentioned letter dated 25 September 1973
that, taking account of the fact that the Government of Iceland was
declining to take part in the proceedings and to avail itself of the right
to have a judge ad hoc on the bench, the Government of the Federal Republic,
as long as that situation persisted, did not feel it necessary to insist on
the appointment of a judge ad hoc.
11. The Governments of Argentina, Australia, India, New Zealand, Senegal and
the United Kingdom 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.
12. In the course of the written proceedings, the following submissions were
presented on behalf of the Government of the Federal Republic of Germany:
in the Application:
"The Federal Republic of Germany asks the Court to adjudge and declare:
(a) That the unilateral extension by Iceland of its zone of exclusive
fisheries jurisdiction to 50 nautical miles from the present baselines, to
be effective from I September 1972, which has been decided upon by the
Parliament (Althing) and the Government of Iceland and communicated by the
Minister for Foreign Affairs of Iceland to the Federal Republic of Germany
by aide-memoire handed to its Ambassador in Reykjavik on 24 February 1972,
would have no basis in international law and could therefore not be opposed
to the Federal Republic of Germany and to its fishing vessels.
(b) That if Iceland, as a coastal State specially dependent on coastal
fisheries, establishes a need for special fisheries conservation measures in
the waters adjacent to its coast but beyond the exclusive fisheries zone
provided for by the Exchange of Notes of 1961, such conservation measures,
as far as they would affect fisheries of the Federal Republic of Germany,
may not be taken, under international law, on the basis of a unilateral
extension by Iceland of its fisheries jurisdiction, but only on the basis of
an agreement between the Federal Republic of Germany and Iceland concluded
either bilaterally or within a multilateral framework."
[p 179]
in the Memorial on the merits:
"May it please the Court to adjudge and declare:
1. That the unilateral extension by Iceland of its zone of exclusive
fisheries jurisdiction to 50 nautical miles from the present baselines, put
into effect by the Regulations No. 189/1972 issued by the Icelandic
Minister for Fisheries on 14 July 1972, has, as against the Federfal
Republic of Germany, no basis in international law and can therefore not be
opposed to the Federal Republic of Germany and the fishing vessels
registered in the Federal Republic of Germany.
2. That the Icelandic Regulations No. 189/1972 issued by the Icelandic
Minister for Fisheries on 14 July 1972, and any other regulations which
might be issued by Iceland for the purpose of implementing Iceland's claim
to a 50-mile exclusive fisheries zone, shall not be enforced against the
Federal Republic of Germany, vessels registered in the Federal Republic of
Germany, their crews and other persons connected with fishing activities of
such vessels.
3. That if Iceland, as a coastal State specially dependent on its fisheries,
establishes a need for conservation measures in respect to fish stocks in
the waters adjacent to its coast beyond the limits of Icelandic jurisdiction
agreed to by the Exchange of Notes of 19 July 1961, such conservation
measures, as far as they would affect fishing activities by vessels
registered in the Federal Republic of Germany, may not be taken on the basis
of a unilateral extension by Iceland of its fisheries jurisdiction but only
on the basis of an agreement between the Parties, concluded either
bilaterally or within a multilateral framework, with due regard to the
special dependence of Iceland on its fisheries and to the traditional
fisheries of the Federal Republic of Germany in the waters concerned.
4. That the acts of interference by Icelandic coastal patrol boats with
fishing vessels registered in the Federal Republic of Germany or with their
fishing operations by the threat or use of force are unlawful under
international law, and that Iceland is under an obligation to make
compensation therefor to the Federal Republic of Germany."
13. At the public hearing of 28 March 1974 the Agent of the Federal
Republic of Germany read the final submissions of his Government in this
case; these submissions were identical to those contained in the Memorial,
and set out above.
14. 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 27 June 1972 from the Minister for Foreign
Affairs of Iceland, namely that there was on 5 June 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 [p 180] 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."
***
15. Iceland has not taken part in any phase of the present proceedings. By
the above-mentioned letter of 27 June 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 Federal Republic of Germany
dated 19 July 1961 as terminated; that in its view there was no basis for
the Court under its Statute 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 2
August 1972 concerning the request by the Federal Republic of Germany 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 Application of the Federal
Republic of Germany and to deal with the merits of the dispute, the
Government of Iceland maintained the same position with regard to the
subsequent proceedings. By a letter dated 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. The Agent of the Federal Republic stated in a letter dated
14 July 1972, with reference to the above-mentioned letter of 27 June 1972
from the Minister for Foreign Affairs of Iceland, that:
"the Government of the Federal Republic of Germany for its part avails
itself of the right under Article 53 of the Statute of the Court to request
the Court to continue with the consideration of this case and in due course
to decide in favour of its claim".
At the public hearings on the merits, the Agent of the Federal Republic drew
attention to the non-appearance in Court of any representative of the
Respondent; he concluded his argument by presenting the final submissions of
the Federal Republic of Germany on the merits of the dispute for
adjudication by the Court.
16. 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 [p 181]
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."
17. 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 are, except in respect of one particular issue, to be
dealt with separately below (paragraphs 71 to 76), either not in dispute or
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.
18. 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. It should be stressed that in applying Article
53 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.
19. Accordingly, for the purposes of Article 53 of the Statute, and subject
to the matters mentioned in paragraphs 71 to 76 below, the Court considers
that it has before it the elements necessary to enable it to [p 182]
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.
***
20. 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."
21. 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.
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 [p 183] 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."
22. No action was taken by Iceland to implement the 1948 Law outside the
existing 3-mile limit of her fisheries jurisdiction until after this Court
had in 1951 handed down its Judgment in the Fisheries case between the
United Kingdom and Norway, in which it endorsed the validity of the system
of straight baselines applied by Norway off the Norwegian coast (I.C.J.
Reports 1951, p. 116). On 19 March 1952, 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. No protest
against these Regulations, which came into effect on 15 May 1952, was made
by the Federal Republic of Germany.
23. In 1958, as a result of the discussion by the United Nations General
Assembly of the Report of the International Law Commission on the Law of the
Sea, the First United Nations Conference on the Law of the Sea was convened
at Geneva. This Conference however failed to reach agreement either on the
limit of the territorial sea or on the zone of exclusive fisheries; it
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 Federal Republic of Germany did not accept the validity of the new
Regulations, and made its position known to the Government of Iceland by a
note-verbale dated 9 June 1958. However, it issued a recommendation to the
German Trawler Owners' Association that fishing vessels should abstain from
fishing inside the 12-mile limit, in order to prevent incidents occurring on
the fishing grounds, and this recom-[p 184]mendation was in fact followed
by the vessels of the Federal Republic. 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 a 12-mile fishery limit, that a 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, con-cerning 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. In the same year, the Federal Republic of Germany and Iceland embarked
on a series of negotiations with a view to the settlement of their dispute
regarding the 1958 Regulations. These negotiations were preceded by a Note
from the Government of Iceland of 5 August 1959 in which, after explaining
in some detail the position it had taken at the 1958 Conference on the Law
of the Sea, it stated that it would greatly appreciate it "if the Government
of the Federal Republic of Germany would consider the special situation and
wishes of Iceland". The Icelandic Government added that "where a nation is
overwhelmingly dependent upon fisheries it should be lawful to take special
measures, and decide a further extension of the fishing zone for meeting the
needs of such a nation". The Note referred to the Resolution adopted at the
1958 Conference on Special Situations relating to Coastal Fisheries. In its
reply of 7 October 1959 the Government of the Federal Republic of Germany
pointed out that it was prepared to recognize the special dependence of
Iceland on its fisheries, but could not accept the view that the coastal
State had a right to include an adjacent area in its fishing zone
unilaterally. The Government of the Federal Republic of Germany pointed out
that the 1958 Resolution would not justify unilateral Icelandic measures
since it merely provided for the elaboration of agreed measures, and
explicitly laid down that consideration must be given to the interests of
other States. The negotiations came to a halt pending the Second United
Nations Conference on the Law of the Sea in 1960, and did not re-open
thereafter. On 13 March 1961, the Government of Iceland notified the Federal
Republic of the conclusion of an Exchange of Notes with the United Kingdom
settling the dispute with that country regarding the 12-mile fishery limits
and baselines claimed by Iceland in its 1958 Regulations. Thereupon further
negotiations were commenced, and on 19 July 1961 an agreement in the form of
an Exchange of [p 185] Notes was concluded for the settlement of the
dispute.
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 Federal Republic, were as follows:
(1) The Federal Republic 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 Federal Republic accepted for that purpose the baselines set out in
the 1958 Regulations subject to the modification of four specified points.
(3) For a period expiring on 10 March 1964, Iceland would not object to
fishing by vessels of the Federal Republic within certain specified areas
and during certain stated months of the year.
(4) During the same period, however, vessels of the Federal Republic would
not fish within the outer 6 miles of the 12-mile zone in seven specified
areas.
(5) Iceland would "continue to work for the implementation of the Althing
Resolution of 5 May 1959, regarding the extension of the fishery
jurisdiction of Iceland. However it shall give the Government of the Federal
Republic of Germany six months' notice of any such extension; in case of a
dispute relating to such an extension, the matter shall, at the request of
either Party, be referred to the International Court of Justice".
In its Note in reply the Federal Republic of Germany emphasized that, being
"mindful of the exceptional importance of coastal fisheries to the Icelandic
economy", it "agrees to the arrangement set forth in your note, and that
your note and this reply thereto constitute an agreement between our two
Governments which shall enter into force immediately, subject to the
stipulation by the Government of the Federal Republic of Germany that this
agreement is without prejudice to its rights under international law towards
third States".
27. On 14 July 1971 the Government of Iceland issued a policy statement in
which, inter alia, it was said:
"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 Federal Republic, during talks in Bonn in
August 1971, to remind the Government of Iceland of the terms of the 1961
Exchange of Notes, and to express the view that the Icelandic [p 186]
fisheries zone could not be extended unilaterally, that the Exchange of
Notes was not open to unilateral denunciation or termination, and to state
that the Government of the Federal Republic would have to reserve their
rights thereunder. No agreement was reached during these talks, and 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 Federal Republic replied on 27 September 1971 and reaffirmed its
view that "the unilateral assumption of sovereign power by a coastal State
over zones of the high seas is inadmissible under 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
Federal Republic expressed its willingness, without prejudice to its legal
position, to enter into further exploratory discussions. In November 1971
the Federal Republic and Iceland held discussions in which the Federal
Republic of Germany expressed its understanding for the concern of the
Government of Iceland about the possibility of injury to fish stocks in the
area in question if fishing remained unregulated, and therefore proposed
practical measures to meet the Icelandic concern. In their proposal the
delegation of the Federal Republic of Germany expressed the conviction that,
taking into account the special situation of Iceland as far as fisheries are
concerned, it should be possible, within the framework of the North-East
Atlantic Fisheries Commission, to come to an arrangement whereby all nations
engaged in fishing around Iceland would limit their catches. The Federal
Republic of Germany further made the offer that pending the elaboration of a
multilateral arrangement within the North-East Atlantic Fisheries Commission
the total catch of demersal species by vessels of the Federal Republic of
Germany would be limited to the average taken by such vessels during the
years 1960 to 1969. These proposals did not lead to any result, and the
negotiations which took place in February 1972 also failed to resolve the
dispute.
29. On 15 February 1972 the Althing adopted a Resolution reiterating the
fundamental policy of the Icelandic people that the continental shelf of
Iceland and the superjacent waters were within the jurisdiction of Iceland.
While reiterating that the Exchange of Notes of 1961 no [p 187] longer
constituted an obligation for Iceland, it resolved, inter alia:
"1. That the fishery limits will be extended to 50 miles from baselines
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 Government 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 Ambassador of the Federal Republic in
Reykjavik of his Government's intention to proceed in accordance with this
Resolution.
30. On 4 March 1972 the Ambassador of the Federal Republic informed the
Prime Minister of Iceland of his Government's decision to bring the question
before the Court. On 14 March 1972, the Federal Republic in an aide-memoire
formally took note of the decision of Iceland to issue new Regulations, and
reaffirmed its position that "a unilateral extension of the fishery zone of
Iceland to 50 miles is incompatible with the general rules of international
law", and that "the Exchange of Notes of 1961 continues to be in force and
cannot be denounced unilaterally". Moreover, formal notice was also given by
the Federal Republic that it would submit the dispute to the Court in
accordance with the Exchange of Notes; the Government of the Federal
Republic was however willing to continue discussions with Iceland "in order
to agree upon satisfactory practical arrangements at least for the period
while the case is before the International Court of Justice". On 5 June
1972, the Federal Republic of Germany 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, at which
various proposals for catch-limitation, fishing-effort limitation, area or
seasonal restrictions for vessels of the Federal Republic were discussed, in
the hope of arriving at practical arrangements for an interim regime pending
the settlement of the dispute. At the meeting of 15 May, the representative
of the Federal Republic of Germany explained his Government's concept of an
interim arrangement on the basis of limiting the annual catches of fishing
vessels from the Federal Republic of Germany to the average of the years
1960 to 1969. On 2 June 1972 the Icelandic Foreign Minister presented
counter-proposals for an interim [p 188] agreement. In presenting these the
Icelandic Foreign Minister, according to the Applicant, stated:
"The British and German proposals for catch limitation and the closure of
certain areas for all trawling (Icelandic and foreign) although they are
helpful as far as they go, do not take the basic principle of preferential
treatment sufficiently into account because if you continue to fish up to
the 12-mile limit more or less as you have done, our preferential position
is not recognized. It would rather mean the freezing of the status-quo . . .
What we are really talking about is the reduction of your fishing in
Icelandic waters in a tangible, visible manner."
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". By 14 July there was still
no agreement on an interim regime, and on that date new Regulations were
issued extending Iceland's fishery limits to 50 miles as from 1 September
1972 and, by Article 2, prohibiting all fishing activities by foreign
vessels inside those limits. Consequently, on 21 July 1972, the Federal
Republic filed in the Registry of the Court its request for the indication
of interim measures of protection.
32. 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 vessels registered in the Federal
Republic and engaging in fishing outside the 12-mile fishery zone; and that
the Federal Republic should limit the annual catch of its vessels in the
"Sea Area of Iceland" to 119,000 tons. That the Federal Republic has
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 vessels of the Federal Republic soon after they
came into effect on 1 September 1972. Negotiations for an interim
arrangement were, however, resumed between the two countries, and were
carried on intermittently during 1972 and 1973; but they have not led to any
agreement.
33. 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 [p
189] persisted in its efforts to enforce the 50-mile limit against vessels
of the Federal Republic 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.
***
34. The question has been raised whether the Court has jurisdiction to
pronounce upon certain matters referred to the Court in paragraph 3 of the
Applicant's final submissions (paragraphs 12-13 above) concerning the taking
of conservation measures on the basis of agreement between the Parties,
concluded either bilaterally or within a multilateral framework, with due
regard to the special dependence of Iceland on its fisheries and to the
traditional fisheries of the Federal Republic of Germany in the waters
concerned.
35. 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 Federal Republic of
Germany on 5 June 1972 and to deal with the merits of the dispute" (I.C.J.
Reports 1973, p. 66, para. 46). The Application which the Court found it had
jurisdiction to entertain contained a submission under letter (b) (cf.
paragraph 12 above) which raised the issue of conservation measures. These
questions, among others, had previously been discussed in the negotiations
between the Parties referred to in paragraphs 27 to 31 above and were also
extensively examined in the pleadings and hearings on the merits.
36. The Order of the Court indicating interim measures of protection
(Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim
Protection Order of 17 August 1972, I.C.J. Reports 1972, p. 30) 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 importance of coastal fisheries to the Icelandic economy"
and on "the need for the conservation of fish stocks in the Iceland area"
(loc. cit., p. 34, paras. 24 and 25).
37. 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.
65, 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.[p 190]
38. 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. 314, 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. 33, para. 12).
39. As to the compromissory clause in the 1961 Exchange of Notes, this gives
the Court jurisdiction with respect to "a dispute relating to such an
extension", i.e., "the extension of the fishery jurisdiction of 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 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
exchanges and negotiations between the Parties, both in 1959 and 1960
(paragraph 25 above) and in 1971-1972 (paragraphs 28 to 31 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 relating to the extension of the fishery
jurisdiction of Iceland".
40. 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 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.
***
41. 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.
42. 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".
43. 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 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.
44. 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 [p 192] 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 49 below.
45. 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 specie legis ferendae, or anticipate the law
before the legislator has laid it down.
46. The concept of a 12-mile fishery zone, referred to in paragraph 44
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 Federal Republic of Germany 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 [p 193] 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 41 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.
***
47. 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.
48. An Icelandic proposal embodying these ideas failed to obtain the
majority required, but a resolution was adopted at the 1958 Conference
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". [p 194]
The resolution further recommended that "appropriate conciliation and
arbitral procedures shall be established for the settlement of any
disagreement".
49. 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 pre-ferential 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
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". [p 195]
50. 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".
51. There can be no doubt of the exceptional importance of coastal fisheries
to the Icelandic economy. That exceptional importance was explicitly
recognized by the Applicant in the Exchange of Notes of 19 July 1961, and
the Court has also taken judicial notice of such recognition by declaring
that it is "necessary to bear in mind the exceptional importance of coastal
fisheries to the Icelandic economy" (I.C.J. Reports 1972, p. 34, para. 24).
52. 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 two demersal speciescod and
haddockthe Applicant has shown itself aware of the need for a
catch-limitation, which has become indispensable in view of the
establishment of catch-limitations in other regions of the North Atlantic.
With respect to other species fished by vessels of the Federal Republic of
[p 196] Germanyredfish and saitheit has been recognized by the Applicant
that the setting up of a catch-limitation scheme for certain species also
requires the establishment of overall quotas for other species, in order to
prevent the fishing effort displaced from one stock being transferred to
other stocks. For this reason it is for instance provided in the aforesaid
Arrangement Relating to Fisheries in Waters Surrounding the Faroe Islands
(Art. II) that the annual catches of demersal species other than cod and
haddock shall not exceed by more than an agreed percentage the highest
figure achieved in the years 1968 to 1972.
***
53. 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 Federal Republic of Germany, would be prohibited. The
mode of implementation of the regulations, carried out by Icelandic
governmental authorities vis-ΰ-vis fishing vessels of the Federal Republic,
despite the Court's interim measures, confirms this interpretation.
54. 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
characterization of the coastal State's rights as preferential implies a
certain priority, but cannot imply the extinction of the concurrent rights
of other States and particularly of a State which, like the Applicant, have
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 [p
197] fishing activity in the waters beyond the limits agreed to in the 1961
Exchange of Notes.
***
55. In this case, the Applicant has pointed out that its vessels started
fishing in the Icelandic area as long ago as the end of the last century.
Published statistics indicate that for many years fishing of demersal
species by German vessels in the disputed area has taken place on a
continuous basis, and that since 1936, except for the period of the Second
World War, the total catch of those vessels has been relatively stable.
Similar statistics indicate that the waters in question constitute the most
important of the Applicant's distant-water fishing grounds for demersal
species.
56. The Applicant further states that the loss of the fishing grounds in the
waters around Iceland would have an appreciable impact on the economy of the
Federal Republic of Germany; the fishing fleet of the Federal Republic of
Germany would not be able to make good the loss of the Icelandic fishing
grounds by diverting their activities to other fishing grounds in the
oceans, because the range of wet-fish trawlers is limited by technical and
economic factors and the more distant grounds, which could be reached by
freezer-trawlers, are already subject to quota limita-tions. It is pointed
out that the loss of the fishing grounds around Iceland would require the
immediate withdrawal from service of the major part of the wet-fish
trawlers, which would probably have to be scrapped and the withdrawal of a
considerable number of trawlers from service would have sizeable secondary
effects, such as unemployment, in the fishing industry and in related and
supporting industries, particularly in coastal towns such as Bremerhaven and
Cuxhaven where the fishing industry plays a predominant part.
57. 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 particularly paragraph 5 thereof requiring
Iceland to give the Federal Republic of Germany advance notice of any
extension of its fishery limits, impliedly acknowledged the existence of
fishery interests of the Federal Republic 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
interests. Furthermore, the Prime Minister of Iceland in a statement on 9
November 1971, after referring to the fact that "the well-being of specific
British fishing towns may nevertheless to some extent be connected with the
fisheries in Icelandic waters", went on to say "Therefore, it is obvious
that we should discuss these issues with the British and the West Germans,
both of whom have some interests in this connection".
58. Considerations similar to those which have prompted the recogni-[p
198]tion of the preferential rights of the coastal State in a special
situation apply when coastal populations in other 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 is of importance not
only to Iceland but also to the Federal Republic of Germany.
59. 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 Federal Republic of Germany, and the
latter is under no obligation to accept the unilateral termination by
Iceland of fishery rights of the Federal Republic in the area.
60. 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 Federal Republic; that Iceland may on the other hand claim
preferential rights in the distribution of fishery resources in the adjacent
waters; that the Federal Republic 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 Federal
Republic to have due regard to each other's interests, and to the interests
of other States, in those resources.
***
61. 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 [p 199]
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 49 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.
62. 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, in the 1961 Exchange of Notes the "exceptional importance of
coastal fisheries to the Icelandic economy" was recognized. This expression
must be interpreted as signifying dependence for the purposes both of
livelihood and economic development, as in the formulas discussed at the
1958 and 1960 Geneva Conferences concerning preferential rights, and in the
Exchange of Notes of 11 March 1961 between Iceland and the United Kingdom.
The latter instrument was the model for the Exchange of Notes between
Iceland and the Federal Republic of Germany, and the Agent of the Federal
Republic has informed the Court that the difference in wording on this point
between the United Kingdom Note and the Federal Republic's Note had no
"legal significance" or had not been meant to have such significance. It has
been suggested by the Applicant that a situation of exceptional dependence
on fisheries for purposes of economic development could only exist in
respect of States which are still in a stage of development and have only a
minor share in the fisheries off their coasts. Such States undoubtedly
afford clear examples of special dependence; however, in the present case
the recognition of the exceptional importance of coastal fisheries to the
Icelandic economy was made at a time when Iceland was already a State with a
comparatively developed economy and possessed a substantial share in the
exploitation [p 200] of the fisheries off its coasts. It is therefore not
possible to accept the limited interpretation of the expression employed in
the 1961 Exchange of Notes suggested by the Applicant. With regard both to
livelihood and to economic development, 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.
63. In view of the Court's finding (paragraph 59 above) that the Icelandic
Regulations of 14 July 1972 are not opposable to the Federal Republic of
Germany for the reasons which have been stated, it follows that the
Government of Iceland is not in law entitled unilaterally to exclude fishing
vessels of the Federal Republic 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; 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 Federal Republic 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.
64. It follows that even if the Court holds that Iceland's extension of her
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 other's 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 [p
201] 1959 as well as such other agreements as may be reached in the matter
in the course of further negotiation.
***
65. 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 (Federal Republic of Germany v.
Iceland), Interim Measures, Order of 12 July 1973, I.C.J. Reports 1973, p.
314, 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.
66. 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 States fishing in the
area, of agreed measures to secure just treatment of the special situation.
67. 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).
68. 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. In its Memorial, the Applicant has asked the
Court to give the Parties some guidance as to the principles which they [p
202] should take into account in their negotiations for the most equitable
management of the fishery resources, and has declared its readiness to enter
into meaningful discussions with the Government of Iceland for the purpose
of a permanent settlement of the fisheries problem. As to Iceland, its
policy was clearly stated in paragraph 3 of the Althing Resolution of 15
February 1972, namely to continue efforts to reach a solution of the
problems connected with the extension through discussions with the
Applicant.
69. 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).
***
70. The Court must take into account the situation which will result from
the delivery of its Judgment, with respect to the interim measures indicated
on 17 August 1972 and which, inter alia, fixed a catch-limitation figure of
119,000 tons for vessels registered in the Federal Republic of Germany.
These interim measures will cease to have effect as from the date of the
present Judgment, since the power of the Court to indicate interim measures
under Article 41 of the Statute of the Court is only exercisable pendente
lite. Notwithstanding the fact that the Parties have not entered into any
provisional arrangement, they are not at liberty to conduct their fishing
activities in the disputed waters without limitation. Negotiations in good
faith, which are ordered by the Court in the present Judgment, involve in
the circumstances of the case an obligation upon the Parties to pay
reasonable regard to each other's rights and to conservation requirements
pending the conclusion of the negotiations. While this statement is of
course a re-affirmation of a self-evident principle, it refers to the
rights of the Parties as indicated in the present Judgment. It is obvious
that both in regard to merits and to jurisdiction, [p 203] the Court only
pronounces on the case which is before it and not on any hypothetical
situation which might arise in the future. At the same time, the Court must
add that its Judgment cannot preclude the Parties from benefiting from any
subsequent developments in the pertinent rules of international law.
***
71. By the fourth submission in its Memorial, maintained in the oral
proceedings, the Federal Republic of Germany raised the question of
compensation for alleged acts of harassment of its fishing vessels by
Icelandic coastal patrol boats; the submission reads as follows:
"That the acts of interference by Icelandic coastal patrol boats with
fishing vessels registered in the Federal Republic of Germany or with their
fishing operations by the threat or use of force are unlawful under
international law, and that Iceland is under an obligation to make
compensation therefor to the Federal Republic of Germany."
72. The Court cannot accept the view that it would lack jurisdiction to deal
with this submission. The matter raised therein is part of the controversy
between the Parties, and constitutes a dispute relating to Iceland's
extension of its fisheries jurisdiction. The submission is one based on
facts subsequent to the filing of the Application, but arising directly out
of the question which is the subject-matter of that Application. As such it
falls within the scope of the Court's jurisdiction defined in the
compromissory clause of the Exchange of Notes of 19 July 1961.
73. In its Memorial, and in the oral proceedings, when presenting its
submission on compensation, the Federal Republic of Germany stated that:
". . . [it] reserves all its rights to claim full compensation from the
Government of Iceland for all unlawful acts that have been committed, or
may yet be committed . . . [it] does not, at present, submit a claim against
the Republic of Iceland for the payment of a certain amount of money as
compensation for the damage already inflicted upon the fishing vessels of
the Federal Republic. [It does] however, request the Court to adjudge and
declare that the Republic of Iceland is, in principle, responsible for the
damage inflicted upon German fishing vessels . . . and under an obligation
to pay full compensation for all the damage which the Federal Republic of
Germany and its nationals have actually suffered thereby."
74. The manner of presentation of this claim raises the question whether the
Court is in a position to pronounce on a submission main-[p 204]tained in
such an abstract form. The submission does not ask for an assessment of
compensation for certain specified acts but for a declaration of principle
that Iceland is under an obligation to make compensation to the Federal
Republic in respect of all unlawful acts of interference with fishing
vessels of the Federal Republic. The Applicant is thus asking for a
declaration adjudicating, with definitive effect, that Iceland is under an
obligation to pay full compensation for all the damage suffered by the
Applicant as a consequence of the acts of interference specified in the
proceedings. In its Memorial the Federal Republic has listed a large number
of incidents involving its vessels and Icelandic coastal patrol boats, and
continues:
"The Government of the Federal Republic does . . . request the Court to
adjudge and declare that the Republic of Iceland is, in principle,
responsible for the damage inflicted upon German fishing vessels by the
illegal acts of the Icelandic coastal patrol boats described in the
preceding paragraphs, and under an obligation to pay full compensation for
all the damage which the Federal Republic of Germany and its nationals have
actually suffered thereby."'' (Emphasis added.)
The final submission, which refers to "the acts of interference" and the
"obligation to make compensation therefor", confirms the above
interpretation.
75. Part V of the Memorial on the merits contains a general account of what
the Federal Republic describes as harassment of its fishing vessels by
Iceland, while Annexes G, H, I and K give some further details in diplomatic
Notes and Annex L lists the incidents, with a statement of the kind of each
incident. Some information concerning incidents is also to be found in the
Federal Republic's reports regarding the implementing of the Court's Order
for provisional measures.
76. The documents before the Court do not however contain in every case an
indication in a concrete form of the damages for which compensation is
required or an estimation of the amount of those damages. Nor do they
furnish evidence concerning such amounts. In order to award compensation
the Court can only act with reference to a concrete submission as to the
existence and the amount of each head of damage. Such an award must be based
on precise grounds and detailed evidence concerning those acts which have
been committed, taking into account all relevant facts of each incident and
their consequences in the circumstances of the case. It is only after
receiving evidence on these matters that the Court can satisfy itself that
each concrete claim is well founded in fact and in law. It is possible to
request a general declaration establishing the principle that compensation
is due, provided the claimant asks the Court to receive evidence and to
determine, in a subsequent phase of the same proceedings, the amount of
damage to be assessed. Moreover, while the Applicant has reserved all its
rights "to claim compensation", it has not [p 205] requested that these
damages be proved and assessed in a subsequent phase of the present
proceedings. It would not be appropriate for the Court, when acting under
Article 53 of the Statute, and after the Applicant has stated that it is not
submitting a claim for the payment of a certain amount of money as
compensation, to take the initiative of requesting specific information and
evidence concerning the indemnity which, in the view of the Applicant, would
correspond to each incident and each head of damage. In these circumstances,
the Court is prevented from making an all-embracing finding of liability
which would cover matters as to which it has only limited information and
slender evidence. Accordingly, the fourth submission of the Federal Republic
of Germany as presented to the Court cannot be acceded to.
***
77. For these reasons,
The Court,
by ten votes to four,
(1) finds that the Regulations concerning the Fishery Limits off Iceland
(Reglugerb um fiskveidilandhelgi 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 Federal
Republic of Germany;
(2) finds that, in consequence, the Government of Iceland is not entitled
unilaterally to exclude fishing vessels of the Federal Republic of Germany
from areas between the fishery limits agreed to in the Exchange of Notes of
19 July 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 Federal
Republic of Germany 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 her people upon [p 206] the fisheries in the
seas around her coasts for their livelihood and economic development;
(b) that by reason of its fishing activities in the areas specified in
subparagraph 2, the Federal Republic of Germany 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 Federal Republic
of Germany 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 conservation 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,
by ten votes to four,
(5) finds that it is unable to accede to the fourth submission of the
Federal Republic of Germany.
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 Federal Republic of Germany 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. [p 207]
Judge Dillard makes the following declaration:
I concur in the findings of the Court indicated in the first four
subparagraphs of the dispositif. My reasons for concurrence are set out in
my separate opinion in the companion case of the United Kingdom of Great
Britain and Northern Ireland v. Iceland. I consider these reasons applicable
mutatis mutandis to the present case.
While I concurred in the finding in the fifth subparagraph that the Court
"is unable to accede to the fourth submission of the Federal Republic of
Germany", I am impelled to add the following reservation FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
All of the Applicant's submissions are set out in para. 12 of the Judgment
and the fourth submission is also set out in para. 71.
---------------------------------------------------------------------------------------------------------------------
The Court has held, in paragraph 72, that it is competent to entertain this
particular submission. Although, for obvious reasons, the submission was
not included in the Application filed on 5 June 1972 since the acts of
harassment and interference occurred thereafter, it was included in the
Memorial on the merits and in the final submissions. The delay therefore
should not be a bar. The Court's construction of the nature and scope of the
Exchange of Notes of 1961, revealed in its analysis of the other
submissions, is clearly consistent with its finding that the compromissory
clause is broad enough to cover this submission as well. In my view the
conclusion that the Court is competent to entertain it, is thus amply
justified.
The Court, however, has interpreted this submission as one asking the Court
to adjudicate with definitive effect that Iceland is under an obligation to
pay full compensation for all the damages suffered by the Applicant as a
consequence of the acts of interference specified in the proceedings (para.
74). In keeping with this interpretation it considers the submission to fall
outside its province under Article 53 of its Statute since it considers
there is insufficient evidence to satisfy itself that each concrete claim is
well founded in fact and law (para. 76). If the Court's interpretation of
the submission were the only permissible one, I would concur without
reservation in its conclusion.
But, in my view, it is not the only permissible one and it may not be the
most desirable one. The Applicant both in its Memorial on the merits and in
the oral proceedings has stressed the point that it is not at present
submitting any claim for the payment of a certain amount of money. The
submission itself only requests that the Court should declare that the acts
of harassment and interference were unlawful and in consequence Iceland, as
a matter of principle, is under a duty to make compensation. True the
submission is couched in a form that is abstract but the question is whether
this should deter the Court from passing upon it. I am not altogether
persuaded that it is.
That Iceland's acts of harassment and interference (indicated in
considerable detail in the proceedings) were unlawful hardly admits of
doubt. [p 208]
They were committed pendente lite despite the obligations assumed by Iceland
in the Exchange of Notes of 1961 which the Court had declared to be a treaty
in force. That their unlawful character engaged the international
responsibility of Iceland is also clear. In the Phosphates in Morocco case
(P.C.I.J., Series A/B, No. 74, p. 28) the Court linked the creation of
international responsibility with the existence of an "act being
attributable to the State and described as contrary to the treaty right of
another State". It is hardly necessary to marshal authority for so
elementary a proposition. It follows that, in effect, the Court was merely
asked to indicate the unlawful character of the acts and to take note of the
consequential liability of Iceland to make reparation. It was not asked to
assess damages.
The Court recognized this point in paragraph 74 of the Judgment but instead
of stressing the limited nature of the submission it preferred to attribute
to it a more extensive character. As indicated above, its interpretation
led naturally to the conclusion that it could not accede to the submission
in the absence of detailed evidence bearing on each concrete claim. While
conceding the force of the Court's reasoning, I would have preferred the
more restrictive interpretation.
I wish to add that on this matter I associate myself with the views
expressed by Judge Sir Humphrey Waldock in his separate opinion.
Judge Ignacio-Pinto makes the following declaration:
To my regret, I have been obliged to vote against the Court's Judgment.
However, to my mind my negative vote does not, strictly speaking, signify
opposition, since in a different context I would certainly have voted in
favour of the process which the Court considered it should follow to arrive
at its decision. In my view that decision is devoted to fixing the
conditions for exercise of preferential rights, for conservation of fish
species, and historic rights, rather than to responding to the primary claim
of the Applicant, which is for a statement of the law on a specific point.
I would have all the more willingly endorsed the concept of preferential
rights inasmuch as the Court'has merely followed its own decision in the
Fisheries case.
It should be observed that the Applicant has nowhere sought a decision from
the Court on a dispute between itself and Iceland on the subject of the
preferential rights of the coastal State, the conservation of fish species,
or historic rightsthis is apparent throughout the elaborate reasoning of
the Judgment. It is obvious that considerations relating to these various
needs, dealt with at length in the Judgment, are not subject to any dispute
between the Parties. There is no doubt that, after setting [p 209] 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 the unilateral extension by Iceland of its zone of exclusive fisheries
jurisdiction to 50 nautical miles from the present baselines, . . . has, as
against the Federal Republic of Germany, no basis in international law . .
." (Judgment, para. 12 (I)).
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 sub-missions, 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 Federal Republic of Germany".
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 19 July
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 refusal to
respect the commitment it accepted in the Exchange of Notes of 19 July 1961,
to refer to the International Court of Justice any dispute which might arise
on an extension of its exclusive fisheries zone, which [p 210] was in fact
foreseen by the Parties, beyond 12 nautical miles, is not this unjustified
refusal a breach of international law?
In the same way, whencontrary to what is generally recognized by the
majority of States in the 1958 Geneva Convention, in Article 2, where it is
clearly specified that there is a zone of high seas which is res
communisIceland unilaterally decides, by means of its Regulations of 14
July 1972, to extend its exclusive jurisdiction from 12 to 50 nautical miles
from the baselines, does it not in this way also commit a breach of
international law? Thus the Court would in no way be open to criticism if
it upheld the claim as well founded.
For my part, I believe that the Court would certainly have strengthened its
judicial authority if it had given a positive reply to the claim laid before
it by the Federal Republic of Germany, instead of embarking on the
construction of a thesis on preferential rights, zones of conservation of
fish species, or historic rights, on which there has never been any dispute,
nor even the slightest shadow of a controversy on the part either of the
Applicant or of the Respondent.
Furthermore, it causes me some concern also that the majority of the Court
seems to have adopted the position which is apparent in the present Judgment
with the intention of pointing the way for the participants in the
Conference on the Law of the Sea now sitting in Caracas.
The Court here gives the impression of being anxious to indicate the
principles on the basis of which it would be desirable that a general
international regulation of rights of fishing should be adopted.
I do not discount the value of the reasons which guided the thinking of the
majority of the Court, and the Court was right to take account of the
special situation of Iceland and its inhabitants, which is deserving of
being treated with special concern. In this connection, the same treatment
should be contemplated for all developing countries in the same position,
which cherish the hope of seeing all these fisheries problems settled, since
it is at present such countries which suffer from the anarchy and lack of
organization of international fishing. But that is not the question which
has been laid before the Court, and the reply given can only be described as
evasive.
In taking this viewpoint I am not unaware of the risk that I may be accused
of not being in tune with the modern trend for the Court to arrogate a
creative power which does not pertain to it under either the United Nations
Charter or its Statute. Perhaps some might even say that the classic
conception of international law to which I declare allegiance is out-dated;
but for myself, I do not fear to continue to respect the classic norms of
that law. Perhaps from the Third Conference on the Law of the Sea some
positive principles accepted by all States will emerge. I hope that this
will be so, and shall be the first to applaudand furthermore I shall be
pleased to see the good use to which they can be put, in particular for the
benefit of the developing countries. But since I am above all faithful to
judicial practice, I continue fervently to urge the [p 211] need for the
Court to confine itself to its obligation to state the law as it is at
present in relation to the facts of the case brought before it.
I consider it entirely proper that, in international law as in every other
system of law, the existing law should be questioned from time to time this
is the surest way of furthering its progressive developmentbut it cannot be
concluded from this that the Court should, for this reason and on the
occasion of the present dispute between Iceland and the Federal Republic of
Germany 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 Iceland in particular which, while
refraining from following the course of law, prefers to await from political
gatherings a justification of its rights.
I agree with Mr. Jean-Pierre Levy in thinking that:
". . . it is to be hoped that States will make use of the next four or five
years to endeavour to prove to themselves and particularly to their
nationals that the general interest of the international community and the
well-being of the peoples of the world can be preserved by moderation,
mutual understanding, and the spirit of compromise; only these will enable
the Third Conference on the Law of the Sea to be held and to succeed in
codifying a new legal order for the sea and its resources" ("La troisiθme
Conference sur le droit de la mer", Annuaire franηais de droit
international, 1971, p. 828).
In the expectation of the opening of the new era which is so much hoped for,
I am honoured at finding myself in agreement with certain Members of the
Court like Judges Gros, Petren and Onyeama for whom the golden rule for the
Court is that, in such a case, it should confine itself strictly within the
limits of the jurisdiction conferred on it.
Judge Nagendra Singh makes the following declaration:
There are certain valid reasons which weigh with me to the extent that they
enable me to support the Judgment of the Court in this case and [p 212]
hence I consider them of such importance as to be appropriately emphasized
to convey the true significance of the Judgmentits extent as well as its
depth. These reasons, as well as those aspects of the Judgment which have
that importance from my viewpoint are briefly stated as follows:
I
While basing its findings on the bilateral law, namely the Exchange of Notes
of 1961 which has primacy in this case, the Court has pronounced upon the
first and second submissions of the Applicant's Memorial on the merits, in
terms of non-opposability to the Federal Republic of Germany as requested by
the Applicant. This suffices for the purpose of that part of the Judgment.
It was, therefore, not necessary for the Court to adjudicate on that aspect
of the first submission which relates to the general law.
In the special circumstances of this case the Court has, therefore, not
proceeded to pronounce upon that particular request of the Applicant which
asks the Court to declare that Iceland's extension of its exclusive fishery
limit to 50 nautical miles has no basis 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".
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. [p 213]
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 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 [p 214] 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 third submission 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 settlement, has thus emphasized the importance of
resolving the dispute in the adjudication of the case.
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 [p
215] in the larger interest and ceasing to be narrow and restrictive in its
approach.
Thus, 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 the case
"the extension of the fishery jurisdiction of 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. Similarly, the Court could not
hold that it was without competence to deal with the fourth submission of
the Applicant pertaining to a claim for compensation against Iceland since
that submission arises out of and relates to the dispute. 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.
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 [p 216]
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.
Judges Forster, Bengzon, Jimenez de Arechaga, Nagendra Singh and Ruda append
a joint separate opinion to the Judgment of the Court; Judges 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 217]
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 that part of the
Applicant's first submission in which it requests the Court to adjudge and
declare that the Icelandic Regulations of 14 July 1972 have "no basis in
international law", and in reaching instead a decision of non-opposability
to the Federal Republic of Germany 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".
3. 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. [p 218]
4. The law with respect to free-swimming fishery resources has evolved 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 -l 6 formula, i.e., for an
exclusive 12-mile fishery zone. It is however [p 219] necessary to make a
distinction between the two meanings which may be 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 220]
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 lege ferenda. 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 rand 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 221] 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 in-centive 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 222]
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 223]
demonstrates the fact that even for States which cannot claim a special
dependence on their fisheries for their livelihood or economic development,
12 miles may not be sufficient. It would not seem fair or equitable to
postulate on the basis of such divergent conduct a rule of law which would
deny the power to protect much more vital fishing interests to countries
lacking the same possibilities of offering attractive terms by way of
compensation for abstaining from fishing in their adjacent waters.
---------------------------------------------------------------------------------------------------------------------
FN1
International Convention (with annex and Protocol) for the High Seas
Fisheries of the North Pacific Ocean signed on 9 May 1952 by the United
States of America, Canada and Japan (United Nations Treaty Series, Vol. 205,
p. 65); Convention concerning the High Seas Fisheries of the North-West
Pacific Ocean signed on 14 May 1956 by Japan and the Union of Soviet
Socialist Republics (AJIL, 1959, p. 763); Agreement between the Government
of the United States of America and the Government of the Union of Soviet
Socialist Republics on Certain Fishery Problems in the North-Eastern Part of
the Pacific Ocean off the Coast of the United States of America, signed on
13 February 1967 (UnitedNations Treaty Series, Vol. 688, p. 157); Agreement
between the Government of the United States of America and the Government of
the Union of Soviet Socialist Republics on Certain Fishery Problems on the
High Seas in the Western Areas of the Middle Atlantic Ocean, signed on 25
November 1967 (United Nations Treaty Series, Vol. 701, p. 162); Agreements
effected by Exchange of Notes signed on 23 December 1968 between the United
States and Japan on Certain Fisheries off the United States Coast and Salmon
Fisheries (TIAS of the United States, No. 6600).
---------------------------------------------------------------------------------------------------------------------
18. The practice of France offers another interesting example with respect
to the question of uniformity of custom. France extended its fishing limits,
in 1972, to 80 miles in the French Guiana. Law No. 72-620 of 5 July 1972
established this zone of 80 miles "with a view to ensure the conservation of
biological resources". However, Article 2 laid down:
"In that part of the zone defined in Article 1 which extends beyond
territorial waters, measures shall be taken as needed, in accordance with
conditions laid down by decree, for the purpose of limiting the fishing of
the various species of marine animal. The application of these measures to
the vessels of foreign States shall be carried out with due regard for the
geographical situation of those States and the fishing habits of their
nationals.
In the same part of the zone, fishing by the vessels of States not
authorizing fishing by French vessels in comparable circumstances may be
prohibited by decree."
Thus France is reserving its right to forbid foreign vessels to fish in the
zone between the 12 and 80-mile limit off Guiana, if French vessels are not
authorized to fish in zones beyond 12 miles off the coast adjacent to
another country. It is hardly possible to count France among the States
whose practice invariably supports an alleged 12-mile maximum limit, when it
is reserving the right to forbid foreign fishing outside 12 miles off the
shore of the French Guiana, under certain conditions.
19. Likewise, archipelago States which have claimed or established fishery
limits according to the geographical characteristics of their territories
could hardly be counted as States accepting the existence of a maximum
12-mile obligatory limit. The same observation could be made in regard to
States which have fixed an exclusive fishing zone far beyond the 12-mile
limit off their coasts by establishing "fisheries closing lines" in certain
bays.
20. Consequently, it is not possible to find today in the practice of [p
224] 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.[p 225]
SEPARATE OPINION OF JUDGE DE CASTRO
[Translation]
I voted with the majority, and I have explained the reasons for my vote in
my separate opinion in the case of Fisheries Jurisdiction (United Kingdom v.
Iceland), and these reasons apply mutatis mutandis to the present case. I
would like however to add the following observations.
During the oral proceedings, the Government of the Federal Repub'ic
requested the Court, in its last submission, to adjudge and declare that
Iceland is under an obligation to make compensation for the acts of
interference by Icelandic coastal patrol boats with the German fishing
vessels by the threat or use of force (hearing of 28 March 1974, p. 92). In
the German Memorial its request is clearer, namely that the Court should
declare:
"That the Republic of Iceland is, in principle, responsible for the damage
inflicted upon German fishing vessels by the illegal acts of the Icelandic
coastal patrol boats described in the preceding paragraphs, and under an
obligation to pay full compensation for all damage which the Federal
Republic of Germany and its nationals have actually suffered thereby." (Part
V, para. 18.)
This claim by the Federal Republic raises two preliminary questions for the
Court, which should be examined separately.
I do not see how the Court can agree to this claim by the Federal Republic.
In its judgment on a case the Court does not have to make declarations of
principle. To say that an illegal act which has caused injury gives rise to
an obligation to make reparation is a mere truism, and there is therefore no
point in saying it. But for that very reason, to say as much would suggest
that the Court has, at least prima facie, accepted the existence of illegal
acts and of damage.
A claim for reparation, if it is to be admissible before a court, must
include an offer of evidence, as to the fault of the defendant, and as to
the existence and the amount of each head of damage; the possibility must
also be considered of balancing of fault on each side, or set-off of
damages.
It is after hearing evidence that the Court can satisfy itself that the
submissions as to reparation are well founded in fact and in law.
The other question to be examined concerns the Court's jurisdiction to
entertain the claim for reparation.
I should observe first of all that I do not consider that the Court has to
settle the question of jurisdiction before stating that the claim is
inadmissible. It is open to the Court to take no action on the claim because
it is not properly made. The Court always has jurisdiction to [p 226] decide
that a claim is inadmissible because its formulation is wholly defective.
I think also that I should make no secret of my doubts as to the Court's
jurisdiction to examine the question of reparation. My hesitation arises
from the fact that I do not see how it can be argued from the compromissory
clause that the task entrusted to the Court includes the question of
reparation. The clause was accepted unwillingly by Iceland, and it would
appear that there is nothing to justify its being interpreted extensively.
The 1961 agreement is confined to the establishment of fishing zones; the
corn promissory clause relates to "the matter" of the extension. The Court
can and must give a decision on the extension. Can it do so also on
connected questions? In my view, the damage and injury relied on by the
Federal Republic derive from something other than the extension. The
unlawfulness of the activities of the Iceland coastal patrol boats which has
been asserted might be deduced from the fact that they occurred either
pendente lite or in disregard of the Court's Order as to interim measures;
they would thus arise not from non-compliance with contractual obligations
(arising from the same treaty) but ex delicto.
It is not easy to interpret the compromissory clause so extensively. The
extension of fisheries jurisdiction is not the cause of the damage; the acts
of the coastal patrol boats are new facts, not foreseen at the time of
conclusion of the agreement.
The old saying that boni judicis est ampliare jurisdictionem is not
applicable to the Court's jurisdiction (United Nations Charter, Art. 2,
para. 7). I consider that the compromissory clause in the 1961 Exchange of
Notes should not be interpreted restrictively, but should not be interpreted
extensively either; it should be read in accordance with the ordinary
meaning to be given to the terms of the Notes in their context and in the
light of their object and purpose (Vienna Convention on the Law of Treaties,
Art. 31).
(Signed) F. de Castro.
[p 227]
SEPARATE OPINION OF JUDGE WALDOCK
1. I am in general agreement with both the operative part and the reasoning
of the Judgment of the Court. I have one reservation, however, regarding
subparagraph 5 of the operative part and there are some aspects of the case
which I consider should have received more prominence in the Judgment, and
which I feel it incumbent on me to mention in this separate opinion.
***
2. The Judgment refers to the Exchange of Notes of 19 July 1961 and draws
certain conclusions from it regarding the Federal Republic of Germany's
recognition of Iceland's exceptional dependence on coastal fisheries and
regarding Iceland's recognition of the Federal Republic'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 soon after
the United Nations Conference on the Law of the Sea had failed to solve the
problem of fishery limits, had as its express object the settlement of an
existing fishery dispute between Iceland and the Federal Republic. This it
did upon terms which lay down specific rules to cover the case of a
subsequent claim by Iceland to extend her jurisdiction beyond the 12-mile
limit assented to by the Federal Republic 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. A similar Exchange of Notes was concluded in 1961 between Iceland and the
United Kingdom, and I have set out at length my observations on the
implications of that Exchange of Notes in my separate opinion in the
Fisheries Jurisdiction case between those two countries. The Exchange of
Notes between Iceland and the Federal Republic, it is true, was concluded
some four months after the Exchange of Notes between Iceland and the United
Kingdom and in separate negotiations; and the [p 228] Federal Republic did
not have any detailed record of its negotiations as was the case with the
United Kingdom. Nevertheless, the Exchange of Notes of 11 March 1961 between
Iceland and the United Kingdom was used as the model for that between her
and the Federal Republic; and the object and provisions of the two
Agreements are, in consequence, virtually identical. Accordingly, I do not
think that it would be useful for me to repeat here the views which I have
expressed on this matter in paragraphs 2-32 of my opinion in the other case
before the Court. Lt will be enough for me to state that, mutatis mutandis,
1 consider them to apply equally in the present case.
**
4. I may, however, recall that the Federal Republic made quite clear its
understanding of the scope of the compromissory clause in the course of the
proceedings on jurisdiction. At the public sitting held on 8 January 1973
its Agent said:
"I would like to add some remarks in order to show that the subject-matter
of the dispute submitten the Application of the Federal Republic of Germany
keeps strictly within the scope of the jurisdiction of the Court, as denned
in paragraph 5 of the Exchange of Notes of 1961. 1 should recall that
according to the terms of that provision the jurisdiction of the Court
covers all disputes relating to an extension by Iceland of its fisheries
jurisdiction over the adjacent waters above its continental shelf beyond the
12-mile limit. Disputes relating to such an extension of the fisheries
jurisdiction are those which arise from any measure by which the Government
of Iceland purports to exercise jurisdictional rights or powers over fishing
activities in the waters beyond the 12-mile limit. Scope and intensity of
this jurisdiction, which may give rise to disputes, are of secondary
importance; the jurisdictional claim may vary as to the width of the zone in
which Iceland attempts to exercise jurisdiction, as well as to the scope of
the rights and powers which Iceland attempts to exercise therein. Iceland's
jurisdictional claim may amount to a claim for exclusive fishing rights in
the extended zone, or may be confined to a claim for preferential fishing
rights only. It may also consist in the enactment and enforcement of
discriminatory or non-discriminatory conservation measures. Any such measure
constitutes an extension of jurisdiction in the sense of paragraph 5 of the
Exchange of Notes and, whenever such extension or the modalities of such
extension give rise to a dispute between the Federal Republic of Germany and
Iceland, the Court has jurisdiction to deal with this dispute on the
application of either Party."
That understanding appears to me fully consonant with the Court's finding in
its Judgment on jurisdiction of 2 February 1973 in the case [p 229] brought
by the United Kingdom, as to the meaning of the compromissory clause the
terms of which are identical with those of the clause in the present case.
The Court there said:
". . . 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.)
***
5. In its first submission the Federal Republic asks the Court to declare
that Iceland's unilateral extension of her zone of exclusive fisheries
jurisdiction to 50 miles "has, as against the Federal Republic of Germany,
no basis in international law and can therefore not be opposed to the
Federal Republic of Germany . . .". Whether this submission is intended to
be limited to the question of the "opposability" of Iceland's extension
vis-ΰ-vis the Federal Republic or claims that the extension is invalid erga
omnes and, therefore, not opposable to the Federal Republic may not perhaps
be entirely clear. In any event, however, for the reasons which I have given
in paragraphs 33-36 of my separate opinion in the case between the United
Kingdom and Iceland, the true legal issue appears to me to be whether the
extension of Iceland's fishery jurisdiction beyond the 12-mile limit agreed
to in 1961 is opposable to a State which, like the Federal Republic, has not
accepted or acquiesced in that extension; and not whether under general
international law the extension is objectively invalid erga omnes. On this
point too, it therefore seems enough for me to state that, mutatis mutandis,
the views which I have expressed in my separate opinion in the United
Kingdom v. Iceland case apply also in the present case.
***
6. The Federal Republic, unlike the United Kingdom in the other case before
the Court, has maintained its claim, set out in its fourth submission, to
compensation for alleged acts of harassment of its vessels by Icelandic
coastal patrol vessels. I concur in the Court's view, stated in paragraph 72
of the Judgment, that this submission falls within its competence in the
present proceedings. Although the Court does not develop its grounds for so
holding and I myself entertain no doubt upon the point, I wish to indicate
briefly the reasons which lead me to share the Court's view. [p 230]
7. The claim to compensation raises two points as to the Court's competence
to entertain it, the first of which is whether the claim falls within the
terms of the compromissory clause: "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." It seems to me too narrow an
interpretation of those words to regard them as confining the competence
conferred on the Court to the question of the extension of jurisdiction as
such. In my view, incidents arising out of Iceland's extension of her
fishery limit and claims in respect of such incidents clearly form part of
"a dispute in relation to such extension"words of a quite general
character. Indeed, every act enforcing Iceland's juris-diction outside the
12-mile limit is in a very real sense an extension of her jurisdiction
beyond the agreed limit. Furthermore, as the Court itself emphasized in
paragraphs 21-22 of its Judgment of 2 February 1973 on its jurisdiction in
the case of the United Kingdom v. Iceland, the very object of the
compromissory clause was to provide an assurance that "if there was a
dispute, no measure to apply an extension on fishery limits would be taken
pending reference to the International Court" (I.C.J. Reports 1973, at p.
13; emphasis added). It therefore seems entirely justifiable to consider
that the Federal Republic's claim to compensation must, in principle, fall
within the general competence conferred on the Court in the case of a
dispute in relation to an extension of fishery jurisdiction.
8. Moreover, as Judge Jimenez de Arechaga pointed out in the ICAO Council
case (I.C.J. Reports 1972, p. 147) both this Court and the Permanent Court
of International Justice have held that, if a jurisdictional clause provides
for the reference to an international tribunal of dis-agreements relating to
the interpretation or application of a treaty, the competence given to the
tribunal embraces questions arising out of the performance or
non-performance of the treaty. Thus, in the Advisory Opinion on
Interpretation of Peace Treaties the Court considered that disputes relating
to the question of the performance or non-performance of the obligations
provided for in treaties "are clearly disputes concerning the interpretation
or execution" of the treaties in question (I.C.J. Reports 1950, p. 75). Even
more specific, for present purposes, is the dictum of the Permanent Court in
the Factory at Chorzσw case (P.C.I.J., Series A, No. 9, p. 21):
"It is a principle of international law that the breach of an engagement
involves an obligation to make reparation in an adequate form. Reparation
therefore is the indispensable complement of a failure to apply a convention
and there is no necessity for this to be stated in the convention itself.
Differences relating to reparations, which may be due by reason of failure
to apply a convention, are [p 231] consequently differences relating to its
application." (Emphasis added.)
In my view, as I have indicated above, the present dispute in relation to an
extension of Iceland's fishery jurisdiction is at the same time a dispute in
relation to the application of the 1961 Exchange of Notes. But in any event,
by parity of reasoning, it seems to me clear that a jurisdictional clause
conferring competence on the Court to determine the validity of an extension
of fishery jurisdiction embraces differences relating to reparations which
may be due by reason of the invalidity of an extension.
*
9. The second point concerns the question whether the claim comes within the
scope of the case referred to the Court by the Federal Republic's
Application of 5 June 1972. The Application contained only two submissions:
one concerning the alleged unlawfulness of the unilateral extension of the
fishery limit, and the other concerning the need for agreement in regard to
conservation measures. The Application did not deal with acts of harassment
or compensation in respect of them for the very good reason that it was
filed before the new Icelandic Regulations came into force on 1 September
1972 and before any acts of harassment had occurred. Indeed, soon after
filing the Application, the Federal Republic sought to obviate any risk of
harassment by requesting and obtaining an Order for provisional measures.
True, the Federal Republic's Memorial on jurisdiction, which was filed on 5
October 1972 after some acts of harassment had occurred, also made no
mention of them. But the Court had ordered that the Federal Republic's first
Memorial should be directed specifically to the question of its jurisdiction
to entertain the Application, and the question of harassment was not germane
to that issue. Consequently, it was in the Memorial on the merits that acts
of harassment were first made a cause of action and a claim to compensation
was first included among the submissions.
10. The question then is whether the Federal Republic's claim to
compensation, formulated in the Memorial on the merits and again in the
final submissions, is a permissible modification of the submissions
formulated in the Application. In other words, is the addition of the claim
to compensation such a modification of the submissions in the Application as
is permissible under Article 40 of the Statute and Article 32 (2) of the
Rules? Under the practice of the Permanent Court of International Justice
the parties to proceedings begun by a unilateral Application were allowed a
certain freedom to amend their submissions so long as the amendments did not
have the effect of altering the subject of the dispute. Thus, the Permanent
Court said in the Societe commerciale de Belgique case:
"It is to be observed that the liberty accorded to the parties to [p 232]
amend their submissions up to the end of the oral proceedings must be
construed reasonably and without infringing the terms of Article 40 of the
Statute and Article 32, paragraph 2, of the Rules which provide that the
Application must indicate the subject of the dispute. The Court has not
hitherto had occasion to determine the limits of this liberty, but it is
clear that the Court cannot, in principle, allow a dispute brought before it
by application to be transformed by amendments in the submissions into
another dispute which is different in character." (P.C.I.J., Series A/B, No.
78, at p. 173.) (Emphasis added.)
As to this Court, Judge Read referred in the Certain Norwegian Loans case to
the established practice "to permit the Parties to modify their Submissions
up to the end of the Oral Proceedings", but observed that "when there is an
appreciable change, the other Party must have a fair opportunity to comment
on the amended Submissions". He added: "The second condition is that the
amendment must be an amendment. It must not consist of an attempt by the
Applicant Government to bring a new and different dispute before the Court"
(I.C.J. Reports 1957, pp. 80-81). It is therefore significant that in the
Temple of Preah Vihear case the Court accepted and upheld a claim to the
restoration of objects removed from the Temple by the Thailand authorities
since 1954, which had been made by Cambodia for the first time in its final
submissions at the oral hearings (I.C.J. Reports 1962, p. 6).
11. In the present case, Iceland had the opportunity, by filing a
Counter-Memorial, to reply to the Federal Republic's claim to compensation
and, if she considered it to be outside the scope of the Application, to
object to its admissibility. But she decided not to appear in the
proceedings. As to the claim itself, this seems to me related to the
subject of the Application more directly than was the restoration of the
Temple objects in the Temple of Preah Vihear case: the relief for which it
asks is consequential upon and implied in the Federal Republic's first
submission. True, the facts on which it is based occurred subsequently to
the Application and the claim therefore introduces a new element into the
case. But it does not seem to me to "transform the dispute" brought before
the Court in the Application into "another dispute which is different in
character". On the contrary, it arose directly out of the matter which is
the subject of the first submission in the Application and was the direct
result of Iceland's own actions with respect to that matter when it was
already before the Court. The very fact that the new claim concerns matters
explicitly dealt with in the Court's Order for provisional measures seems to
me to make it difficult to treat that claim as an impermissible modification
of the submissions in the Application. Consequently, in my view, the claim
to compensation ought not to be ruled out on the ground that it had no place
in the Application. [p 233]
**
12. My reservation regarding subparagraph 5 of the operative clause arises
from a doubt as to whether the Court should simply state that it is unable
to accede to the Federal Republic's fourth submission and thus, in effect,
to dismiss outright the claim to compensation. In so far as this submission
may be considered as asking the Court for a final decision pronouncing upon
Iceland's obligation to make compensation for particular specified acts of
interference, I agree with the Court that, as the case now stands, it is not
in a position to give such a decision because the evidence is scarcely
sufficient. The Federal Republic appears, moreover, to be asking for final
judgment in the case without requesting further proceedings to deal with its
claim to compensation or requesting the Court to reserve for the Federal
Republic the liberty to apply to the Court on the question of compensation
in the event that no agreement is arrived at between the Parties on this
question. In consequence, it may be doubtful whether it would be appropriate
for the Court, proprio motu, to reserve the question of compensation to be
dealt with in further proceedings.
13. In so far, however, as the fourth submission may be understood as merely
claiming a declaration of principle that Iceland is under an obligation to
make reparation for any acts of interference established as unlawful under
subparagraphs 1 and 2 of the operative clause of the Court's Judgment, I do
not myself see the same difficulty in the Court's acceding to the claim. The
Court has held that Iceland's unilateral extension of her exclusive fishing
rights to 50 miles is not opposable to the Federal Republic and that Iceland
is not entitled unilaterally to exclude the Federal Republic's fishing
vessels from the waters to seaward of the fishery limits agreed to in the
1961 Exchange of Notes. It then really follows automatically that acts
enforcing that extension against fishing vessels of the Federal Republic are
unlawful and engage Iceland's inter-national responsibility to the Federal
Republic with respect to such acts. Since it is a well-established principle
of international law that every violation of an international obligation
entails a duty to make reparation, the right to reparation also follows
without even being stated. Accordingly, it may be said, as was indeed said
in the Corfu Channel case (I.C.J. Reports 1949, pp. 23-24), that to make the
claim to reparation is superfluous; if the claim to a declaration of the
unlawful character of acts is upheld, the consequence is that as a matter of
law, reparation is due. Nevertheless, an Applicant may think it important to
obtain from the Court, as a form of satisfaction, an express declaration in
the operative part of the Judgment that reparation is due, and I see no
obstacle to the Court's acceding to such a submission.
(Signed) H. Waldock.
[p 234]
DISSENTING OPINION OF JUDGE GROS
[ Translation ]
1. The two Judgments, as will be evident on reading them, are modelled on
each other, and the cases have been dealt with together throughout the
written, oral and deliberation stages, and lastly the ground for refusal of
a joinder was the desire formally conveyed to the Court by the two States.
Since I took the view that the United Kingdom v. Iceland case and the
Federal Republic of Germany v. Iceland case should be joined, I shall here
confine myself to the observations called for by the fact that one
submission peculiar to the Federal Republic has been maintained before the
Court. For an explanation of the reasons for my general disagreement with
the Judgment. 1 refer to my opinion on the Judgment concerning the United
Kingdom.
In September 1972, after the Icelandic Regulations had been brought into
force, the Government of the Federal Republic proposed trilateral talks with
Iceland for the negotiation of an interim agreement, but Iceland refused
(cf. Memorial of the Federal Republic of Germany on the merits, Part I,
para. 43). The White Book published by the United Kingdom shows that there
was constant consultation and co-operation with the Federal Republic:
"Anglo/German cooperation
21. Throughout the dispute there has been close consultation and cooperation
with the Federal German Government. The latter are conducting proceedings
before the International Court on similar lines to the proceedings
instituted by H.M.G. The Federal Republic proposed on 15 September 1972 that
the negotiations with the Government of Iceland should be on a tripartite
basis. The United Kingdom accepted this proposal but it was rejected by the
Government of Iceland. Consequently, the British and German negotiations
with Iceland had to continue on a bilateral basis but they have been closely
coordinated. The composition of the two fishing fleets and the areas which
they use are however different and this difference will no doubt be
reflected in any eventual agreement." {Fisheries Dispute between the United
Kingdom and Iceland, Cmnd. 5341, June 1973.)
Throughout the proceedings in the two cases, in respect of the written [p
235] pleadings, the oral argument and the replies to questions, this
co-operation was as evident as was the presence of the Agents and counsel
of each State at the public sittings devoted to the proceedings instituted
by the other State.
2. The Exchange of Notes of 19 July 1961 between the Federal Republic and
Iceland is in identical terms to the Exchange of Notes of 11 March 1961
between the United Kingdom and Iceland, and the Federal Republic stated in
its Memorial on jurisdiction that:
"there can ... be no doubt that the subject-matter of the dispute as defined
in the Submissions contained in the Application . . . that is, whether or
not the extension by Iceland of its fisheries jurisdiction to 50 nautical
miles is valid under international law, falls within the scope of the
jurisdiction of the Court" (Memorial, para. 5).
The position of the Government of the Federal Republic was explained in the
same way in paragraph 150 of Part IV of the Memorial on the merits:
"Accordingly, the Government of the Federal Republic of Germany
respectfully requests the Court to adjuge and declare that Iceland's
unilateral action which had been undertaken without the faintest regard to
the long-established traditional fishery rights of the Federal Republic and
other States in these waters, is without foundation in international law and
cannot be enforced against the Federal Republic, the fishing vessels
registered in the Federal Republic, their crews and other persons connected
with their fishing activities in these waters."
The reply of the Court should have been that such extension is not in
accordance with existing international law for the reasons which I have
explained with reference to the Judgment concerning the United Kingdom, and
without extending the Court's jurisdiction to a decision on negotiation of
preferential and historic rights between Iceland and the Federal Republic.
I would merely add that the clearest possible indication of the general
economic background against which the negotiations between Iceland and the
Federal Republic took place, and of the need which in my view results
therefrom to extend any examination of the elements of any negotiation for
the fisheries regime around Iceland to, as regards the subject-matter,
these, economic problems, and as regards to the participants, to the States
and organizations concerned, is given by the diplomatic documents quoted by
the Federal Republic (for example, the aide-memoire of 20 July 1961 of the
Icelandic delegation in Bonn, Memorial on the jurisdiction, para. 20 and
Ann. H; and the memorandum of the Federal Republic of 21 July 1961, ibid.,
Ann. J, where the possibility of association with the EEC is contemplated 11
years before the agreement of 22 July 1972 between Iceland and the EEC,
which demonstrates [p 236] the interest shown by the member States of the
Community, including the Federal Republic and the United Kingdom, in the
fisheries regime round Iceland).
***
3. The point which is peculiar to the present Judgment concerns the fourth
submission of the Federal Republic, which is dealt with in the last
subparagraph of the operative clause. The Court has decided that it is
unable to accede to this fourth submission of the Federal Republic of
Germany which was a claim for reparation for the consequences of action
taken against its fishing vesselsexclusively on the grounds of the way in
which the submission has been presented: "The fourth submission ... as
presented to the Court cannot be acceded to" (para. 76 of the Judgment). It
may be deduced from this that in another form the claim could be acceded to
by the Court; but it might be contended, on the basis of the continuance in
force of the 1961 agreement, that further action would be possible,
particularly should the negotiations which the Court recommends break down.
Since there is between Iceland and the Federal Republic no interim
agreement, like the agreement of 13 November 1973 with the United Kingdom,
there is therefore nothing to prevent the Federal Republic from immediately
re-presenting this part of its claim. Since I am unable to accept the
implications of the Judgment on this point, and for other reasons also, I
voted against subparagraph 5 of the operative clause, as I did in respect of
the Judgment as a whole.
4. The 1961 agreement, which has been subjected by the Court to an extensive
interpretation which has already been adverted to in my observations on the
United Kingdom case, is in fact now presented by the Court as having
provided for acceptance by Iceland of judicial jurisdiction extending also
to reparation for any damage related to a further extension of Icelandic
fisheries jurisdiction beyond 12 miles. But the Records of the 1960
negotiations provided by the United Kingdom (the only such records available
to the Court) show that reference to the Court was only contemplated on a
single point, and was only discussed and accepted on that point, namely the
assurance asked for by the United Kingdom, and of which the Federal Republic
subsequently had the benefit, that any further extension would have to be
submitted to the judgment of the Court in accordance with international law.
When two States negotiate for and conclude an assurance which is confined to
a single point, it is not possible to draw the same conclusion from it as
would have been possible if what they had agreed was: "The Court shall have
jurisdiction in respect of any dispute concerning the application and
interpretation of the present agreement"; I would recall that the 1961
agreement was submitted for approval to the Althing, which was in no
position to understand that it was being asked to accept reference of any
dispute whatsoever to the Court, to which it had always refused to agree, [p
237] since the negotiations reported to it terminated only in an assurance
against any "'further extension". The commitment which has been relied upon
against Iceland should be understood as it was understood by the two Parties
at the time of its conclusion (cf. paras. 16 and 28 of my opinion on the
United Kingdom Judgment). An agreement can never define anything other than
what was subject to negotiation at the appro-priate 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).
5. The Court is bound to satisfy itself that the Applicant's claim is well
founded in fact and law; I consider that the two identical agreements of
1961 do not provide for any proceedings to establish responsibility
(contentieux de responsabilite), but only proceedings to establish
law-fulness (contentieux de legalite), directed to obtaining a declaratory
judgment on a limited point of law, and nothing more. It is therefore
because the fourth submission of the Federal Republic fell outside the
subject-matter of the compromissory clause, and therefore of the Court's
jurisdiction, that it should have been rejected in the Judgment, and not by
means of an argument based on the way in which the submission was presented.
As to certain arguments concerning the law of responsibility in general,
since the Court has not given its decision on this aspect of the matter, but
may be seised of it again, I do not consider it possible to discuss the
point.
6. One final observation seems to me to. be necessary. The way in which the
Court has applied Article 53 of the Statute leads me to observe that the
difficulties which are inherent in any investigation of the position taken
up by a State which fails to appear, on the law and on the facts, have not
been sufficiently overcome, and thus there remains a feeling that a State
which has put itself in such a position can be subjected to sanctions. This
interpretation of failure to appear has, in both Judgments, led to action
ultra vires, as a result of an incorrect interpretation of the commitments
entered into by the absent State, for lack of more thorough enquiry into
what that State said and, in that context, into what it could have said,
which is exactly what is required by Article 53. I therefore disagree on
this point with paragraph 18 of the Judgment, particularly as regards the
decision on the fourth submission of the Federal Republic. [p 238]
7. The 1961 agreement was conceived by the parties as a guarantee against a
further extension, which was already under contemplation by Iceland, of its
fishery limits, which would consist in the matter being referred to the
Court on the question whether a fresh extension would be, at the relevant
time, in accordance with existing international law. As a result of the
Court's construction of the 1961 agreement, not only is its Judgment ultra
vires, but by refusing to pronounce on the question of the lawfulness of the
extension which was validly and clearly laid before it, it has finally left
unanswered the only claim which defined the divergence between the Parties
in 1961, and constituted the dispute between them: the fresh extension of
limits effected by the Icelandic Regulations of 1972 is not in accordance
with existing international law, but the Court has not said so. This is
however the basis necessary for the establishment of any fisheries regime
round Iceland, and that is doubtless the reason why, when negotiating the
1961 agreement, the United Kingdom insisted so strongly that it should be
the Court which should decide, when the time came, what the state of the
applicable law was.
8. 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:
"Having thus defined . . . the legal relations between the Parties . . . the
Court has completed its task. It is unable to give any practical advice as
to the various courses which might be followed with a view to terminating
the asylum, since, by doing so, it would depart from its judicial function.
But it can be assumed that the Parties, now that their mutual legal
relations have been made clear, will be able to find a practical . . .
solution . . ." (I.C.J. Reports 1951, p. 83.)
That this new concept must be rejected as in contradiction with the role of
an international tribunal appears to me to be clear simply from the
observation that an international court is not a federal tribunal; the
Statesof which there are now not manywhich come before the Court do not do
so to receive advice, but to obtain judicial confirmation of the treaty
commitments which they have entered into according to established
international law, in relation to a situation with which they are well
acquainted. The Court saw all this in the Judgment in the Fisheries case, in
which the special nature of the situation was the dominant feature in the
decision (I.C.J. Reports 1951, Judgment of 18 December 1951); by seeking to
effect, under cover of a case limited to Icelandic fisheries, a
pronouncement of universal effect the Court contradicts its whole previous
attitude. As long ago as 1963, Charles De Visscher wrote in his commentary
on judicial interpretation:
"The function of interpretation is not to perfect a legal instrument with a
view to adapting it more or less precisely to what one may [p 239] 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 riposte to the philosophy which inspires the
Judgment and the postulates it contains (particularly paras. 36-40).
(Signed) Andre Gros.
[p 240]
DISSENTING OPINION OF JUDGE PETREN
[ Translation ]
To my regret, I have found it necessary to vote against the Judgment as a
whole, and I therefore append this dissenting opinion.
In the present case, as in the parallel case concerning Fisheries
Jurisdiction (United Kingdom v. Iceland), the essential question before the
Court is whether the extension by Iceland, as from 1 September 1972, of its
zone of exclusive fisheries jurisdiction from the 12-mile to the 50-mile
limit is well founded in international law. The parallelism between the two
cases also extends to the source of the Court's jurisdiction, which in
either case can only be sought in the agreement concluded between the
Parties in 1961; what is more, the passages concerning jurisdiction in the
Notes exchanged in 1961 are identical in either case. Though the cases were
not joined, as I would have thought desirable, I may surely be permitted a
broad reference to my dissenting opinion in the proceedings instituted
against Iceland by the United Kingdom. As in that other case, and for the
same reasons, I find: (a) that, in not ruling upon the conformity or
otherwise of the extension of Iceland's fishery zone with international
law, the Court has failed to fulfil the task incumbent upon it; (b) that, in
devoting the Judgment to questions of preferential and historic rights and
to questions of measures of conservation, the Court has exceeded the
strictly limited jurisdiction conferred upon it by the 1961 agreement.
For the reasons indicated in my dissenting opinion in the other case, I
consider that when Iceland extended its fishery zone it did so contrary to
the prevailing international law. Yet it is clear from the reasoning of the
present Judgment that the first part of its operative clause, in finding
that the unilateral extension of Iceland's exclusive fishery rights is not
opposable to the Federal Republic of Germany, is based entirely on
considerations concerning the historic rights of the Federal Republic, and
that the Court has deliberately avoided the adoption of any position on the
question of the conformity of the extension of the fishery zone with
international law. That being so, I was obviously unable to vote for that
part of the operative clause.
***
In the following part of the operative clause, subparagraphs 3 and 4, the
Court, without the consent of Iceland, imposes upon the Parties the
obligation to negotiate between themselves for the solution (which must
include a conservation regime) of their differences concerning their [p 241]
respective fishery rights beyond the 12-mile limit. As in my opinion the
Court has exceeded its jurisdiction in hinging its Judgment on the
establishment of a regime of preferential and historic rights and
conservation measures, the creation of a duty to negotiate for the
establishment of such a regime, coupled with an obligation to succeed, is a
fortiori, in my view, ultra vires.
The Court observes in paragraph 70 that the interim measures which it
indicated in the present case on 17 August 1972 cease to have effect as from
the date of the Judgment, as an inevitable consequence of the provisions of
Article 41 of the Statute. The Court then declares that the negotiations
ordered in the Judgment involve in the circumstances of the case an
obligation upon the Parties to pay reasonable regard to each other's rights
and to conservation requirements pending the conclusion of the
negotiations. Now it is self-evident that States have the obligation to
respect the rights of other States, and there would be no point in stating
as much in a judgment unless the creation or definition of new rights was in
contemplation. If it was the Court's intention to impose on the Parties, by
way of replacement for the expired interim measures, the obligation of
observing certain restraints in their fishing activities during the
negotiations, it should have made this clear in the operative clause of the
Judgment and not have confined itself to a vague sentence in the reasoning.
But what this passage, to my mind, really signifies is something entirely
different. It must be seen as symptomatic of the fact that, by the logic of
the Judgment, the Court must be considered to possess, until the final
settlement of the present dispute, a continuing jurisdiction over the whole
of the relations between the Parties so far as fisheries in the belt between
the 12-mile and 50-mile limits are concerned. In my view, no basis for such
jurisdiction can be found in the 1961 agreement.
On the same part of the operative clause of the Judgment I venture to make
one observation which follows on from those I have made in my opinion in the
other case. The Court imposes on the Parties the obligation to base their
negotiations on a series of considerations within whose enumeration, seek as
one may, one can find no answer to the primordial question as to whether the
waters between the 12-mile and 50-mile limits are to be considered as part
of Iceland's fishery zone. Little imagination is needed to realize that any
persistent disagreement on this point could condemn the negotiations to
deadlock from the start. The remaining lifespan which the Federal Republic
may claim for its historic rights depends, as the Judgment moreover admits
in paragraph 61, on whether that question is answered affirmatively or
negatively. Thus the procedural situation created by the present Judgment is
embarrassing. The Application asked what was the legal status of the
fishing waters in dispute; the Court, although it formed part of its
judicial functions to answer this question, avoided doing so, and the
Parties now find themselves enjoined to undertake negotiations for which a
reply on that point is a prerequisite. I find it doubtful that negotiations
imposed in such conditions would succeed. [p 242]
Such are the reasons why I found myself obliged to vote against the second
part of the operative clause.
***
There remains the third and last part of the operative clause, subparagraph
5, concerning the fourth final submission requesting the Court to adjudge
and declare that the acts of interference by Icelandic coastal patrol boats
with fishing vessels registered in the Federal Republic of Germany or with
their fishing operations by the threat or use of force are unlawful under
international law, and that Iceland is under an obligation to make
compensation therefor to the Federal Republic of Germany.
This claim, which appeared in the Federal Republic's Memorial on the merits,
was not included in the Application instituting proceedings filed in the
Registry on 5 June 1972. In 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 case. That Judgment was based entirely upon paragraph 5 of the
Exchange of Notes of 1961, which reads as follows:
"The Government of the Republic of Iceland shall continue to work for the
implementation of the Althing Resolution of 5 May 1959, regarding the
extension of the fishery jurisdiction of Iceland. However, it shall give the
Government of the Federal Republic of Germany six months' notice of any such
extension; in case of a dispute relating to such an extension, the matter
shall, at the request of either party, be referred to the International
Court of Justice."
The point at issue is therefore whether the phrase "a dispute relating to
such an extension" signifies that it is not only the question whether a
future extension of Iceland's fishery jurisdiction is in conformity with
international law that may be referred to the Court, but also such
supplementary questions as the present compensation claim. Even in the
affirmative, it would still be necessary that the Court's finding that it
possessed jurisdiction to entertain the Application and deal with the merits
of the dispute should further imply that the Court may adjudicate upon an
additional claim concerning incidents subsequent to the filing of the
Application. This question is all the more delicate in the present case
because the respondent Party has chosen not to be represented before the
Court and the situation calls for the application of Article 53 of the
Statute.
Iceland's acceptance of the Court's jurisdiction was exceptional in
character. It is plain that the Government of Iceland meant it to be
strictly limited to the question of whether the next step in the extension
of Iceland's fishery zone would be in conformity with international law.
Considering the atmosphere in which the 1961 agreement was negotiated, [p
243] it may be supposed that the Government of the Federal Republic was
conscious of the Icelandic Government's attitude in this respect. It was at
a moment when memories of the first "cod war" were still fresh that the
Althing approved the two 1961 agreements with the United Kingdom and the
Federal Republic respectively. Would it have done so if it had believed that
it was at the same time accepting that any pecuniary dispute arising out of
a future extension of the Iceland fishery zone should be referred to the
Court? I think not, and therefore consider that the Federal Republic's
compensation claim does not fall within the scope of the jurisdictional
clause of the 1961 agreement. That being so, it is scarcely necessary for me
to consider the consequences of the fact that this claim was mentioned
neither in the Application instituting proceedings nor in the Judgment on
jurisdiction.
The Court finds that it has jurisdiction to deal with the compensation
claim, but finds that it is unable to "accede" to it for want of sufficient
evidence. In my view, the Court ought not to have dismissed the submission
in this way, for it did not afford the Federal Republic the opportunity to
complete its documentation in the course of the oral proceedings, in
conformity with Article 54 of the 1946 Rules of Court. The oral proceedings
enable the Court, inter alia, to lead litigants by its questions to fill in
the gaps in the presentation of their arguments, or even to withdraw part of
their claims.
The last sentence of paragraph 76 of the Judgment seems to imply that if the
Federal Republic revived its compensation claim the Court would be ready to
consider it. Leaving aside all considerations of procedural law, I will
confine myself to stating that, according to my interpretation of the 1961
agreement, it cannot be accorded so prolonged an effect.
It follows from the foregoing that I found It necessary to vote against the
last part of the operative clause.
(Signed) S. Petren.
[p 244]
DISSENTING OPINION OF JUDGE ONYEAMA
As I stated in my dissenting opinion in the case between the United Kingdom
and Iceland, while I concur in the findings in subparagraphs 1 and 2 of the
operative clause of the Court's Judgment, I do not agree with the reasons
supporting them and so feel unable to vote in favour of the Judgment.
In my view, the Court in subparagraphs 3 and 4 of the operative clause of
the Judgment concerned itself with matters about which there was no dispute
between the Parties and in which its jurisdiction is doubtful. In
subparagraph 5 it declined to accede to the request of the Federal Republic
of Germany contained in its final submission that the Court:
". . . adjudge and declare that the Republic of Iceland is, in principle,
responsible for the damage inflicted upon German fishing vessels by the
illegal acts of the Icelandic coastal patrol boats . . . and under an
obligation to pay full compensation for all the damage which the Federal
Republic and its nationals have actually suffered thereby".
I think this claim should have been allowed and do not agree with the
Judgment on this head also.
***
There are, at present, four conventions which in the main contain the
positive rules of international law concerning the sea. They are the High
Seas Convention, the Convention on the Territorial Sea and Contiguous Zone,
the Convention on Fishing and Conservation of the Living Resources of the
High Seas, and the Convention on the Continental Shelf. Iceland is not a
party to any of these conventions, nor does any of them provide any basis in
international law for the unilateral extension of exclusive fishery
jurisdiction over the high seas by any State. The Convention on the High
Seas, whose provisions are recognized as generally declaratory of
established principles of international law, provides in its Article 2 that
the high seas are open to all nations, and no State may validly purport to
subject any part of them to its sovereignty.
In paragraph 44 of the Judgment the Court pointed out that following upon
the Geneva Conference on the Law of the Sea in 1958, the concept [p 245] of
the fishery zone, an area in which a State may claim exclusive fishery
jurisdiction independently of its territorial sea, crystallized as a rule of
customary international law. The Court went on to say: "the extension of
that fishery zone up to a 12-mile limit from the baselines appears now to be
generally accepted."
Attempts by some States to extend their fishery limits beyond 12 miles from
baselines do not appear to have been generally accepted, and the Court does
not regard such State practice as having developed into customary
international law.
The Exchange of Notes of 1961 between the Federal Republic of Germany and
Iceland recognized Iceland's claim to an exclusive fishery limit within a
12-mile zone from the baselines round her coast, in return for an assurance
by Iceland that in the event of dispute, the validity of any further
extension of her fishery jurisdiction would be referred to this Court for
determination. Notwithstanding the agreement constituted by the Exchange of
Notes, Iceland issued Regulations No. 189/1972 on 14 July 1972, by which she
purported unilaterally to extend her exclusive fishery jurisdiction from 12
to 50 miles. In later statements and diplomatic exchanges, she repudiated
the agreement constituted by the Exchange of Notes.
The Exchange of Notes provided that in the event of a dispute in relation to
the extension by Iceland of her fishery jurisdiction beyond the limit then
agreed, either party could refer the dispute to the Court. It was by virtue
of this provision that Germany filed the Application in this case, and from
it (read with Art. 36, para. 1, of the Statute of the Court), that the Court
derived its jurisdiction.
By repudiating the agreement and refusing to recognize the Court's
jurisdiction, Iceland was in breach of the agreement; but since the dispute
has properly been referred to the Court by one of the parties to the
agreement and as provided in the agreement, it is the Judgment of the Court
on the question of the validity of the extension which will, in my view,
finally determine the opposability of the extension to the Federal Republic
of Germany, and not the breach by Iceland of the agreement constituted by
the Exchange of Notes. The effect of Iceland's wrongful repudiation of the
agreement would be that pending the judicial determination of the question
of the validity of the extension of her fishery jurisdiction, Iceland could
not validly oppose the Regulations by which she purported to make the
extension to the Federal Republic, since Iceland could not be allowed to
profit from her own wrong, but such a breach could not by itself, apart from
a judgment of the Court deciding the validity of the extension, settle the
question of the opposability of the extension.
*
The first submission in the Memorial on the merits filed by the Federal
Republic of Germany asks the Court to adjudge and declare: [p 246]
"That the unilateral extension by Iceland of its zone of exclusive fisheries
jurisdiction to 50 nautical miles from the present baselines, put into
effect by the Regulations No. 189/1972 issued by the Icelandic Minister for
Fisheries on 14 July 1972, has, as against the Federal Republic of Germany,
no basis in international law and can therefore not be opposed to the
Federal Republic of Germany and the fishing vessels registered in the
Federal Republic of Germany."
As I understand this submission, it is that the Regulations have no basis in
international law and, for that reason, cannot be opposed to the Federal
Republic of Germany.
The Court is required, in my view, to decide, as a basic question, whether
the Regulations have any basis in international law and, if they have not,
to say that they are, therefore, not opposable to the Federal Republic of
Germany. The Court, however, while declaring that the Regulations are not
opposable to the Federal Republic of Germany, and while, in its reasoning,
indicating their conflict with the High Seas Convention, refrained from
deciding the controlling question whether they have or have not a basis in
international law. The operative part of the Judgment avoids any
pronouncement on the question.
The grounds on which the Court decided that the Regulations were not
opposable to the Federal Republic of Germany are to be found in paragraph 59
of the Judgment, and appear to make the validity of the Regulations depend
on their recognition of and giving effect to the fishing rights of the
Federal Republic of Germany in the fishery zone, without any reference to
their compatibility with general international law. By refraining from
deciding what, in my view, was the real dispute between the Parties, the
Court has not correctly exercised its function which is, according to
Article 38, paragraph 1, of the Statute of the Court, to decide in
accordance with international law such disputes as are submitted to it.
The Icelandic Regulations challenged have, in my view, no basis in
international law since their provisions relating to the extension of
Iceland's exclusive fishery jurisdiction are not authorized by any of the
four conventions to which I have referred, particularly the Convention on
the High Seas, nor do they accord with the concept of the fishery zone as at
present accepted FN1. Having regard to the attitude of Iceland as shown in
the documents she submitted to the Court, and the first two submissions of
the Federal Republic of Germany in its Memorial on the merits, the Parties
appear to me to be entitled to know the Court's answer to the question
whether, as a matter of international law, Iceland could unilaterally
extend her exclusive fishery jurisdiction beyond the limit agreed in the
Exchange of Notes of 1961.
[p 247]
---------------------------------------------------------------------------------------------------------------------
FN1
Vide para. 44 of the Judgment.
---------------------------------------------------------------------------------------------------------------------
***
I explained in my dissenting opinion in the case between the United Kingdom
and Iceland why I did not think that the dispute between the Parties was
about conservation of fish stock, catch-limitations and preferential rights.
The discussions between the United Kingdom and Iceland preceded the
exchanges between the Federal Republic of Germany and Iceland, and, to my
mind, provide a clear indication of Iceland's attitude to the whole question
of fishery rights in the waters around Iceland. The Law concerning the
Scientific Conservation of the Continental Shelf Fisheries enacted by the
Parliament of Iceland (Althing) on 5 April 1948, authorized the Ministry of
Fisheries of the Government of Iceland to 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" (emphasis added). I pause to note that in spite of the title of
the Law of 1948, the clear aim of Iceland as can be seen from the passage in
the Law which I have emphasized, was unilaterally to control and regulate
all fishing in the so-called conservation zones; so that as far back as 1948
Iceland was already intent on getting exclusive control of the fishery on
her continental shelf. The negotiations between the Federal Republic of
Germany and Iceland were preceded by Iceland handing to the Federal Republic
of Germany a copy of the Exchange of Notes of 11 March 1961 between the
United Kingdom and Iceland, and ended with an agreement constituted by an
Exchange of Notes between the two which took effect on 19 July 1961. The
provision of the Exchange of Notes relevant to the question of the dispute
between the Parties in the present case is as follows:
"The Government of the Republic of Iceland shall continue to work for the
implementation of the Althing Resolution of 5 May 1959 regarding the
extension of the fishery jurisdiction of Iceland. However, it shall give the
Government of the Federal Republic of Germany six months' notice of any such
extension; in case of a dispute relating to such an extension, the matter
shall, at the request of either party, be referred to the International
Court of Justice."
The clear words of the Exchange of Notes, the diplomatic exchanges between
the Parties, and the discussions between the United Kingdom and Iceland,
which are relevant to the German case since they throw some light on the
attitude of the Icelandic Government, appear to me to leave no doubt that
the dispute anticipated in the portion of the Exchange of Notes quoted, and
which either Party could refer to this Court, was a dispute as to whether a
measure taken by Iceland unilaterally to extend its area of fishery
jurisdiction beyond the limit then agreed was or was not valid under
international law. By the very nature of the matter, the Parties could not
have intended that the Court was to settle questions of preferential and
historic rights, conservation and catch-limitation which are not susceptible
of unilateral physical delimitation or extension, but only take effect in a
special regime, and which, in my view, formed no [p 248] part of the dispute
and negotiations leading up to the Exchange of Notes. Discussions and
diplomatic exchanges subsequent to the Application of the Federal Republic
of Germany which suggest certain conservation measures were clearly aimed at
arranging matters between the Parties pending a phasing-out period FN1, and
in no way altered the nature of the claim before the Court.
---------------------------------------------------------------------------------------------------------------------
FN1
See Annex E to the Memorial on the merits of the Federal Republic of
Germany.
---------------------------------------------------------------------------------------------------------------------
It is worth noting that in answer to the aide-memoire of 31 August 1971 by
which Iceland gave notice to the Federal Republic of Germany of its
intention to extend the exclusive fisheries zone to include the areas of sea
over the continental shelf the new limits of which were to be more precisely
defined later, the Federal Republic of Germany, by an aide-memoire of 27
September 1971, expressed the view "that the unilateral assumption of
sovereign power by a coastal State over zones of the high seas is
inadmissible under international law".
This seems to me to indicate exactly how the Federal Republic of Germany
conceived the dispute for which provision for reference to the Court was
made in the Exchange of Notes, and with which the present proceedings are
concerned; and since Iceland had not itself requested collaboration by other
States in establishing measures of conservation nor had it asserted any
preferential rights which had been opposed by the Federal Republic, it seems
safe to assert that there was a dispute between the Parties as to the
validity of the proposed extension of Iceland's exclusive fisheries
jurisdiction and none about Iceland's preferential rights as a coastal State
in a special situation.
At the jurisdiction phase of the present proceedings, the Court, after
reviewing briefly the negotiations between the Parties "in order fully to
ascertain the scope and purpose of the 1961 Exchange of Notes FN2", said:
---------------------------------------------------------------------------------------------------------------------
FN2
I.C.J. Reports 1973, p. 56.
---------------------------------------------------------------------------------------------------------------------
"This history of the negotiations 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 Government of the Federal Republic
of Germany the same assurance as the United Kingdom, including 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 FN3" (Emphasis added.)
------------------------------------------------------------------------------------------------------------
FN3
Ibid., p. 58.
------------------------------------------------------------------------------------------------------------
The Court went on to say FN4:
---------------------------------------------------------------------------------------------------------------------
FN4
Ibid., p.64.
---------------------------------------------------------------------------------------------------------------------
[p 249]
"Account must also be taken of the fact that the Applicant, in its
contentions before the Court, expressed the opinion that if Iceland, as a
coastal Slate specially dependent on coastal fisheries for its livelihood or
economic development, asserts 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 unilateral
assumption 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 understand this to mean that the special situation of Iceland and the
principle of conservation, both of which engage Iceland's preferential
rights, having been recognized by the Federal Republic of Germany, are not
in dispute in these proceedings, and the question which remains for the
Court is "whether Iceland is or is not competent unilaterally to assert an
exclusive fisheries jurisdiction extending beyond the 12-mile limit". The
Court decided it had jurisdiction to determine that question, and, in my
view, the Court cannot now enlarge its jurisdiction by such an
interpretation of the dispute as would widen its scope. The Court's
jurisdiction derives from the consent of the Parties as expressed in the
Exchange of Notes which, in its turn, sets out the dispute the Parties
agreed was to be referred to the Court; the Court's jurisdiction ought
always to be strictly construed and where it is not clear that the Parties
have consented to it ought to be declined.
In the present case there does not appear to be any dispute between the
Parties on the matters on which the Court pronounced in subparagraphs 3 and
4 of the operative clause of the Judgment, nor are these matters covered in
the compromissory clause of the Exchange of Notes from which the Court
derives its jurisdiction. The Federal Republic of Germany, in the third
submission in its Memorial on the merits, makes a submission based on the
hypothesis that Iceland, as a coastal State specially dependent on
fisheries, establishes a need for conservation measures in respect of fish
stocks in the waters adjacent to its coast beyond the limits of Icelandic
jurisdiction agreed to by the Exchange of Notes of 19 July 1961; but Iceland
has not asked the Court to adjudicate on conservation measures, and a
request to the Court by one party to a dispute that a different dispute be
settled by the Court cannot take the place of the consent of all Parties
which is a prerequisite of the Court's jurisdiction. For the foregoing
reasons, I have come to the conclusion that the Court [p 250] exceeded its
jurisdiction in passing judgment on the matters pronounced upon in
subparagraphs 3 and 4 of the operative part of the Judgment; it ought to
have confined itself to deciding the validity under international law of
Iceland's extension of her zone of fishery jurisdiction beyond the 12-mile
limit agreed between the Parties in the Exchange of Notes of 1961 which was
the only dispute before it and over which it had jurisdiction.
***
Regarding the fourth submission of the Federal Republic of Germany that the
acts of interference by Icelandic coastal patrol boats with fishing vessels
registered in the Federal Republic of Germany or with their fishing
operations by the threat or use of force are unlawful under international
law, and that Iceland is under an obligation to make compensation therefor
to the Federal Republic of Germany, I am of the opinion that the Court is
competent to entertain the claim grounded on the submission, since the acts
of interference complained of arose directly out of Iceland's attempt to
enforce its extension of its fisheries jurisdiction before the validity of
such extension had been decided by the Court as agreed in the Exchange of
Notes of 1961. In my view, claims for compensation for acts done in breach
of the agreement constituted by the Exchange of Notes must be deemed to be
in the contemplation of the Parties when they conferred jurisdiction on the
Court, and the particular acts in this case appear to me to form part of
what the Exchange of Notes referred to as "a dispute in relation to such
extension".
If, as I believe, the Court has jurisdiction to entertain the claim for
compensation, I consider its reasons for rejecting the claim wholly
inadequate. In the first place, the Federal Republic of Germany was not
asking for quantified compensation but for a declaration of principle as
follows:
(a) that the acts of interference by Icelandic coastal patrol boats with
fishing vessels registered in the Federal Republic of Germany were illegal;
(b) that Iceland is responsible for the damage inflicted;
(c) that Iceland is under an obligation to pay full compensation for all the
damage which the Federal Republic and its nationals have actually suffered
as a result of the acts of interference.
In the second place, even if a claim for a specific sum was made, the Court
is not without means of calling for further information on any issue in the
claim if it considers that course necessary in the interest of justice. FN1
---------------------------------------------------------------------------------------------------------------------
FN1
See, for example, Art. 57, paras. 1 and 2 of the Rules of Court.
---------------------------------------------------------------------------------------------------------------------
[p 251]
The decision that the Regulations whereby Iceland sought to extend its
fisheries jurisdiction beyond the limit agreed in the Exchange of Notes are
not opposable to the Federal Republic of Germany, appears to me to carry the
necessary implication that acts done in enforcement of the Regulations
against German fishing vessels are contrary to law. Consistently with its
Judgment, the Court should have made a general declaration of principle
along the lines set out in the submission in the Memorial on the merits of
the Federal Republic of Germany.
(Signed) Charles D. Onyeama. |
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